NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
HOUSTON BYRD, JR.,
Petitioner-Appellant
v.
SECRETARY OF HEALTH AND HUMAN
SERVICES,
Respondent-Appellee
______________________
2019-1729
______________________
Appeal from the United States Court of Federal Claims
in No. 1:17-vv-00900-CFL, Senior Judge Charles F. Lettow.
______________________
Decided: July 10, 2019
______________________
HOUSTON BYRD, JR., Newark, OH, pro se.
MALLORI BROWNE OPENCHOWSKI, Vaccine/Torts
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent-appellee. Also repre-
sented by JOSEPH H. HUNT, C. SALVATORE D'ALESSIO,
CATHARINE E. REEVES.
______________________
Before NEWMAN, SCHALL, and CHEN, Circuit Judges.
BYRD v. HHS
2
PER CURIAM.
DECISION
Houston Byrd, Jr., appeals the February 7, 2019 deci-
sion of the United States Court of Federal Claims in Byrd
v. Secretary of Health & Human Services,
142 Fed. Cl. 79
(“Byrd II”). In that decision, the Court of Federal Claims
denied Mr. Byrd’s motion for review of, and also affirmed,
the November 29, 2018 decision of the chief special master
that dismissed Mr. Byrd’s petition for compensation under
the National Childhood Vaccine Injury Act of 1986, 42
U.S.C. §§ 300aa-1 to -34, as amended (“Vaccine Act”). See
Byrd v. Sec’y of Health & Human Servs.,
2018 WL 6918820
(“Byrd I”). We affirm.
DISCUSSION
I.
Under the Vaccine Act, a petitioner seeking compensa-
tion may prove causation in one of two ways, depending
upon whether the case involves a “Table injury” or an “off-
Table injury.” See Moberly v. Sec’y of Health & Human
Servs.,
592 F.3d 1315, 1321 (Fed. Cir. 2010). If the admin-
istered vaccine and injury are listed in the Vaccine Injury
Table, and the injury manifests itself within the specified
time period, a petitioner receives a presumption of a causal
link between the vaccination and the injury. See de Bazan
v. Sec’y of Health & Human Servs.,
539 F.3d 1347, 1351
(Fed. Cir. 2008); see also 42 U.S.C. § 300aa-11(c)(1)(C)(i)
(not requiring a showing of causation for a Table injury).
However, for an injury not listed in the Table, or for an in-
jury which does not occur within the specified time period,
a petitioner seeking compensation must prove causation in
fact. See de
Bazan, 539 F.3d at 1351; see also 42 U.S.C.
§ 300aa-11(c)(1)(C)(ii) (requiring a showing of causation for
an off-Table injury). This appeal involves an off-Table in-
jury.
BYRD v. HHS 3
A petitioner asserting an off-Table injury must file an
affidavit and supporting documentation demonstrating
that the vaccine-related injury for which compensation is
sought was caused by a vaccine. Cloer v. Sec’y of Health &
Human Servs.,
654 F.3d 1322, 1331 (Fed. Cir. 2011) (en
banc). Causation must be proved by a preponderance of the
evidence. See 42 U.S.C. § 300aa-13(a)(1) (“Compensation
shall be awarded . . . to a petitioner if the special master or
court finds . . . (A) that the petitioner has demonstrated by
a preponderance of the evidence the matters required in
the petition.”). When a petitioner claims to have suffered
an off-Table injury, we apply the test for causation in fact
outlined in Althen v. Secretary of Health & Human Ser-
vices,
418 F.3d 1274 (Fed. Cir. 2005):
[The petitioner’s] burden is to show by preponder-
ant evidence that the vaccination brought about
[his or] her injury by providing: (1) a medical the-
ory causally connecting the vaccination and the in-
jury; (2) a logical sequence of cause and effect
showing that the vaccination was the reason for the
injury; and (3) a showing of a proximate temporal
relationship between vaccination and
injury.
418 F.3d at 1278.
II.
On July 3, 2017, Mr. Byrd, acting pro se, filed a petition
for vaccine compensation. In his petition, he alleged that
the influenza and pneumococcal polysaccharide vaccines
that he received on October 1, 2015, caused him to suffer
headaches, stomachaches, elevated blood sugar levels, and
weight loss. Byrd I,
2018 WL 6918820, at *1.
On March 30, 2018, the Secretary of Health and Hu-
man Services (“Secretary”) filed the report required by
Rule 4(c) of the Court of Federal Claims Vaccine Rules. In
his report, in which he recommended against compensa-
tion, the Secretary maintained that Mr. Byrd had failed to
BYRD v. HHS
4
establish that his alleged injuries lasted for at least six
months, as required by the Vaccine Act. See 42 U.S.C.
§ 300aa-11(c)(1)(D)(i). The Secretary also maintained that,
even if the six-month requirement had been met, Mr. Byrd
still failed to satisfy any of the Althen requirements. Byrd
I,
2018 WL 6918820, at *1.
On June 28, 2018, the chief special master issued an
Order (“June 28 Order”), providing preliminary findings of
fact on the merits of Mr. Byrd’s claim. App. 13. As a
“threshold matter,” the chief special master found that Mr.
Byrd had not established that he suffered from his alleged
injuries for at least six months, as none of his complaints
were documented in recent medical records. App. 15. In
addition, turning to Althen, the chief special master found
that Mr. Byrd had “established no causal link between the
asserted injuries and his flu vaccination.”
Id. The chief
special master stated:
Nowhere in petitioner’s medical records or other fil-
ings does a medical expert articulate a theory caus-
ally connecting the vaccines to his injuries, as
required by Althen Prong One. Likewise, peti-
tioner describes no logical sequence of cause and ef-
fect, as required by Althen Prong Two, nor does he
demonstrate a proximate temporal relationship be-
tween the vaccine and his injuries as required by
Althen Prong Three.
Id. The chief special master provided Mr. Byrd sixty days
“to obtain an expert report from a reputable, qualified med-
ical doctor and to file all medical records needed to evaluate
his claim.” App. 15–16. In addition, she informed Mr. Byrd
that failure to comply with these requirements would re-
sult in “an order to show cause why this case should not be
dismissed.” App. 16.
Mr. Byrd did not file an expert report or otherwise re-
spond to the June 28 Order. Accordingly, on September 6,
2018, the chief special master issued an order to show
BYRD v. HHS 5
cause, giving Mr. Byrd until November 5, 2018, to file the
materials required by the June 28 Order. App. 95–96. In
her order, she warned Mr. Byrd that failure to provide the
required medical records and expert report “will be inter-
preted as an inability to provide supporting documentation
for this claim, constituting a failure to prosecute, and the
case will be dismissed with prejudice.” App. 96.
On November 29, 2018, after Mr. Byrd still had failed
to provide the materials required by the June 28 Order and
the order to show cause, the chief special master dismissed
Mr. Byrd’s petition for insufficient proof and failure to pros-
ecute. Byrd I,
2018 WL 6918820, at *2. Explaining her
ruling, the chief special master stated:
The undersigned has allowed petitioner over a year
in which to file all necessary medical records, and
she has given petitioner a number of opportunities
to participate in status conferences. Under Vaccine
Rule 21(b)(1), petitioner’s repeated failure to follow
Court orders is ample grounds for dismissal. More-
over, the scant medical records that were filed in
the case fail to satisfy the causation criteria estab-
lished in Althen, and petitioner has not retained a
medical doctor to opine as to causation in his case.
Id.
Mr. Byrd timely moved for review of the chief special
master’s decision. As noted, on February 7, 2019, the Court
of Federal Claims denied the motion and affirmed the chief
special master’s decision. After reviewing the procedural
history of the case and detailing the repeated opportunities
the chief special master had afforded Mr. Byrd to comply
with her orders, the court determined that Mr. Byrd had
failed to demonstrate that the chief special master’s dis-
missal of his petition for failure to prosecute was an abuse
of discretion. Byrd
II, 142 Fed. Cl. at 84, 86–87. Address-
ing the merits of Mr. Byrd’s claim, the court stated that,
“absent medical records pre-dating the vaccination, records
BYRD v. HHS
6
of his injuries,” and records “that his injuries lasted at least
six months, the chief special master was obliged to dismiss”
the petition.
Id. at 85. Mr. Byrd now appeals. We have
jurisdiction pursuant to 42 U.S.C. § 300aa-12(f).
III.
We review de novo decisions of the Court of Federal
Claims arising under the Vaccine Act, applying the same
standard as the Court of Federal Claims applied in its re-
view of the special master’s decision. Porter v. Sec’y of
Health & Human Servs.,
663 F.3d 1242, 1248–49 (Fed. Cir.
2011). We owe no deference to the Court of Federal Claims
or the special master on questions of law. Andreu v. Sec’y
of Health & Human Servs.,
569 F.3d 1367, 1373 (Fed. Cir.
2009). At the same time, we uphold the special master’s
findings of fact unless they are arbitrary or capricious. Por-
ter, 663 F.3d at 1249 (citing Broekelschen v. Sec’y of Health
& Human Servs.,
618 F.3d 1339, 1345 (Fed. Cir. 2010)).
“Thus, although we are reviewing as a matter of law the
decision of the [Court of Federal Claims] under a non-def-
erential standard, we are in effect reviewing the decision of
the special master under the deferential arbitrary and ca-
pricious standard on factual issues.” Lombardi v. Sec’y of
Health & Human Servs.,
656 F.3d 1343, 1350 (Fed. Cir.
2011) (quoting Lampe v. Sec’y of Health & Human Servs.,
219 F.3d 1357, 1369 (Fed. Cir. 2000)).
A dismissal for failure to prosecute is reviewed under
the abuse of discretion standard. See Claude E. Atkins En-
ters., Inc. v. United States,
899 F.2d 1180, 1183 (Fed. Cir.
1990). “An abuse of discretion may be found when (1) the
court’s decision is clearly unreasonable, arbitrary, or fanci-
ful; (2) the decision is based on an erroneous conclusion of
the law; (3) the court’s findings are clearly erroneous; or
(4) the record contains no evidence upon which the court
rationally could have based its decision.” Simmons v. Sec’y
of Health & Human Servs.,
875 F.3d 632, 635 (Fed. Cir.
BYRD v. HHS 7
2017) (quoting Hendler v. United States,
952 F.2d 1364,
1380 (Fed. Cir. 1991)).
IV.
In his informal brief, Mr. Byrd answers “Yes” to the
question whether the trial court incorrectly decided or
failed to take into account any facts. He also answers “Yes”
to the question whether the trial court applied the wrong
law.
As seen, the chief special master dismissed Mr. Byrd’s
petition for insufficient proof and for failure to prosecute.
Mr. Byrd, however, fails to point to any erroneous fact find-
ings by the chief special master relating to those rulings.
He also fails to point to any legal errors by the chief special
master relating to those rulings.
First, the chief special master did not abuse her discre-
tion in dismissing Mr. Byrd’s petition for failure to prose-
cute. Vaccine Rule 21(b) provides that a special master
“may dismiss a petition or any claim therein for failure of
the petitioner to prosecute or comply with these rules or
any order of the special master.” Vaccine Rules of the U.S.
Court of Federal Claims, Rules of Ct. of Fed. Claims App.
B., R. 21(b); see also Simanski v. Sec’y of Health & Human
Servs.,
671 F.3d 1368, 1380–81 (Fed. Cir. 2012). The pro-
cedural history of this case, which we have recited at some
length above, makes it clear that the chief special master
(1) gave Mr. Byrd every opportunity and more than enough
time to file the evidence necessary to establish his claim;
and (2) warned him that his failure to provide the required
material would result in the dismissal of his petition.
Second, the chief special master applied the correct law
to her analysis of Mr. Byrd’s claim. As noted above, Mr.
Byrd was required to show that he had suffered the resid-
ual effects or complications of his claimed vaccine injury for
more than six months. He also was required to satisfy the
requirements of Althen. Rather than addressing the six-
BYRD v. HHS
8
month requirement, Mr. Byrd appears to argue for the first
time that he satisfied the alternative requirement under 42
U.S.C. § 300aa-11(c)(1)(D)(iii) of having “suffered such ill-
ness disability, injury, or condition from the vaccine which
resulted in inpatient hospitalization or surgery.” Appel-
lant’s Informal Br. at 8; see also Byrd
II, 142 Fed. Cl. at 85
& n.10 (“Mr. Byrd also never claimed, nor provided evi-
dence to support, inpatient hospitalization or surgery.”).
We need not reach this argument, however, because Mr.
Byrd was also required to satisfy the requirements of Al-
then. The chief special master thoroughly reviewed the rec-
ord and correctly determined that he had failed to do so.
We have considered the additional arguments that Mr.
Byrd makes on appeal and have found them to be without
merit.
CONCLUSION
For the foregoing reasons, we affirm the decision of the
Court of Federal Claims denying Mr. Byrd’s motion for re-
view of the decision of the chief special master and affirm-
ing the decision of the chief special master.
AFFIRMED
COSTS
Each party shall bear its own costs.
