Appealed from: U.S. Court of Federal Claims. Judge Merow
Before Rich, Clevenger, and Rader, Circuit Judges.
CLEVENGER, Circuit Judge.
Jerry and Lea Ann Weddel appeal the August 4, 1993, order of the United States Court of Federal Claims dismissing their petition for compensation under the National Childhood Vaccine Injury Compensation Act of 1986, 42 U.S.C. § 300aa-1 to -26 (1988 & Supp. IV 1992) (the Act). Section 300aa-11(a)(5)(A) sets a limitation on the time for filing a petition applicable to parties who had a pending action in state court when the Act went into effect arising out of an alleged vaccine injury. Subsection (a)(5)(B) provides further that this class of persons "may not file" a petition while their state court action is still "pending." The court interpreted the latter provision as having a jurisdictional effect and dismissed the petition after concluding that when the Weddels filed their petition under the Act, they still had an action pending in state court against the manufacturer and the administrator of the vaccine they allege injured their daughter. We affirm.
Cassie Ann Weddel suffers a residual seizure disorder that her parents allege resulted from a DPT shot administered on August 4, 1986. In April 1988, the Weddels filed a lawsuit in the Texas courts seeking compensation from the vaccine manufacturer and the doctor who inoculated their daughter. They later decided, however, to pursue a federal remedy in the United States Claims Court*fn1 under the Act.
To that end, on September 11, 1990, shortly before the statute of limitations would have barred relief under the Act, the Weddels' attorney mailed both a motion to dismiss to the clerk of the Texas court and a petition for compensation under the Act. The petition arrived at the Claims Court on September 12, satisfying the statute of limitations for filing set forth in subsection (a)(5)(A). The motion to dismiss arrived at the Texas court, however, one day after the petition was filed in the Claims Court. On June 24, 1992, the Special Master assigned to the case, having discovered this copendency problem, issued an order to show cause why the petition should not be dismissed for failure to comply with the Act's filing requirements. The Weddels responded on July 23, 1992, arguing that the dismissal of the Texas action was effective upon dispatch, or, in the alternative, that the court should deem the Vaccine Act petition to have been filed later than it actually was. The Special Master ordered dismissal, and the Weddels sought review by the Claims Court Judge responsible for the case. In an order dated August 4, 1993, the court upheld the Special Master's decision to dismiss the petition. The Weddels then appealed to this court.
On appeal, the Weddels make three arguments:*fn2 First, they contend that under Texas law, dismissal as of right is effective upon dispatch, and not receipt, of the motion. Therefore, their state court action was dismissed on September 11, 1990--a day before the Claims Court clerk received their Vaccine Act petition. Second, they maintain that under federal law in this circuit, the effective date of their Claims Court filing was not September 12, because their petition initially lacked the cover sheet and some of the supporting materials required by the formal pleading rules. It was not until some time later, argue the Weddels, when the petition was finally married with a proper cover sheet and the balance of the medical documentation, that their filing was perfected. Finally, the Weddels assert that unlike the statute of limitations contained in the Act, the anti-copendency provision, though phrased in mandatory terms, has no jurisdictional effect or consequence.
To evaluate the Weddels' first argument, we must examine the law of Texas and determine whether dismissal as of right is governed by the so-called mailbox rule or the receipt rule. The Supreme Court of Texas has held that dismissal as of right is effective the moment an appropriate motion is filed with the clerk of the court. See, e.g., Shadowbrook Apts. v. Abu-Ahmad, 783 S.W.2d 210, 211 (Tex. 1990). Confirming our own sense that by "filed" the court meant filed, not mailed, are the interpretations of intermediate appellate courts holding that a paper is deemed "filed" as of its arrival at the clerk's office, not as of its mailing. See, e.g., Strawder v. Thomas, 846 S.W.2d 51 (Tex. Ct. App. 1992).
In support of their position, petitioners cite first Texas Rule of Civil Procedure 5, which provides generally that the filing of any document is effective upon dispatch for purposes of all Texas deadlines, and second Rule 21a, which applies the mailbox rule specifically to service of process. Neither of these rules, however, is applicable to the facts of this case. By its terms, Rule 5 is inapposite when the relevant time deadline missed is not Texan, but federal. Rule 21a is likewise inapposite for the simple reason that filing a motion to dismiss is not service of process. We hold therefore that the Weddel's case was dismissed, at the earliest, when the clerk of the Texas court received their motion (i.e., on September 13, 1990). The next question, then, is whether the Weddels are correct that the effective date of the filing of their petition in the Claims Court was not September 12, when the bulk of the petition was filed in the clerk's office, but September 18, 1990, and January 17, 1991, respectively, when the inadvertently-omitted cover sheet and medical records finally arrived.
Both this and the Weddels' final argument raise pure questions of federal law involving statutory interpretation and jurisdictional delineation. We of course review a trial court's resolution of such questions de novo See, e.g., Dehne v. United States, 970 F.2d 890, 892 (Fed. Cir. 1992); Munn v. Secretary of Health and Human Servs., 970 F.2d 863, 870 (Fed. Cir. 1992).
It is fundamental that the proper function of the judicial department in matters of statutory interpretation is to carry out the will of the legislature by discerning, if possible, its "intent" on the question presented. Under the traditional rule of statutory interpretation, courts must look first to intrinsic evidence of intent (i.e., the textual language) alone. E.g., Toibb v. Radloff, 501 U.S. 157, 111 S. Ct. 2197, 2200, 115 L. Ed. 2d 145 (1991); see also Park 'N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 194, 83 L. Ed. 2d 582, 105 S. Ct. 658 (1985) ("assumption that the ordinary meaning of the language accurately expresses the legislative purpose"); United States v. American Trucking Ass'ns, Inc., 310 U.S. 534, 543, 84 L. Ed. 1345, 60 S. Ct. 1059 (1940) ("There is, of course, no more persuasive evidence of [intent] than the words by which the legislature undertook to give expression to its wishes."). If it is clear "what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used," Matter of Sinclair, 870 F.2d 1340, 1343 (7th Cir. 1989) (quoting Oliver Wendell Holmes, The Theory of Legal Interpretation, 12 Harv. L. Rev. 417, 417-19 (1899)), that intent will be imputed to the legislature and enforced notwithstanding conflicting agency pronouncements, Estate of Cowart v. Nicklos Drilling Co., 120 L. Ed. 2d 379, 112 S. Ct. 2589, 2594 (1992); see, e.g., K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291-93, 100 L. Ed. 2d 313, 108 S. Ct. 1811 (1988), or extrinsic evidence of a contrary intent, see, e.g., Darby v. Cisneros, 125 L. Ed. 2d 113, 113 S. Ct. 2539, 2545 (1993); ...