Greenberg v. Secretary of Health & Human Services ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
HOWARD GREENBERG, DENISE GREENBERG,
PARENTS OF J.G., A MINOR,
Petitioners-Appellants
v.
SECRETARY OF HEALTH AND HUMAN
SERVICES,
Respondent-Appellee
______________________
2016-1187
______________________
Appeal from the United States Court of Federal
Claims in No. 1:08-vv-00024-TCW, Judge Thomas C.
Wheeler.
______________________
Decided: May 6, 2016
______________________
HOWARD GREENBERG, DENISE GREENBERG, J.G., Kihei,
HI, pro se.
HEATHER LYNN PEARLMAN, Torts Branch, Civil Divi-
sion, United States Department of Justice, Washington,
DC, for respondent-appellee. Also represented by
BENJAMIN C. MIZER, RUPA BHATTACHARYYA, VINCENT J.
MATANOSKI.
2 GREENBERG v. SECRETARY OF HEALTH
______________________
Before TARANTO, SCHALL, and HUGHES, Circuit Judges.
PER CURIAM.
When he was one-year old, J.G., child of Howard and
Denise Greenberg, received a measles, mumps, and
rubella vaccination. One year later, he was diagnosed
with a form of autism. A few years after J.G.’s diagnosis,
the Greenbergs filed a petition with the United States
Court of Federal Claims seeking compensation under the
National Vaccine Injury Compensation Program of the
National Childhood Vaccine Injury Act of 1986, codified as
amended at 42 U.S.C. § 300aa-1 et seq. A special master
dismissed their petition as untimely and for failure to
show that J.G. suffered a relevant post-vaccination injury,
and the Court of Federal Claims entered final judgment.
The Greenbergs did not appeal from that judgment, but
they sought post-judgment relief by filing a motion for
reconsideration. The special master denied their motion,
and the Court of Federal Claims affirmed. Because the
special master’s refusal to reconsider his decision showed
no abuse of discretion, we affirm.
BACKGROUND
J.G. was born on April 10, 2003. He passed all devel-
opmental milestones at several “well-child” doctor visits
during his first year. On April 13, 2004, J.G. received a
vaccination for measles, mumps, and rubella (MMR).
Between that visit and his 15-month well-child visit, the
Greenbergs called J.G.’s doctors at least three times,
concerned about J.G.’s swollen gums and fussiness (the
medical notes refer to molars coming in), bumps on his
limbs and torso, and an allergic reaction to peanuts. At
his 15- and 18-month well-child visits in July and October
2004, J.G.’s medical records show him continuing to meet
all developmental goals. And the medical notes record
GREENBERG v. SECRETARY OF HEALTH 3
“none” next to “shot reaction” through J.G.’s first 18
months.
At his two-year well-child visit, J.G.’s parents raised
concerns about his tantrums, screeching, and limited
speech. Half a year later, in January 2006, a pediatrician
determined that J.G. had a significant speech delay,
unusual behavior patterns, and impaired social interac-
tions. In the pediatrician’s opinion, J.G.’s behavior was
consistent with Pervasive Developmental Disorder, a
variant of autism.
On January 14, 2008, the Greenbergs filed, in the
Court of Federal Claims, a petition alleging that J.G.’s
MMR vaccine caused his autism and that the National
Vaccine Injury Compensation Program thus required
compensation. To show entitlement to compensation, the
Greenbergs needed to show by a preponderance of the
evidence either (a) that J.G. had received a vaccine listed
on the Vaccine Injury Table and suffered an injury listed
on the Table as corresponding to that vaccine (a “table
injury”), without additional proof of causation, or (b) that
administration of a Table-listed vaccine had actually
caused or significantly aggravated some injury not listed
on the Table for that vaccine. 42 U.S.C. §§ 300aa-13(a)(1),
300aa-11(c)(1); Cedillo v. Sec’y of Health & Human Servs.,
617 F.3d 1328, 1335 (Fed. Cir. 2010). Autism was (and is)
not a table injury for the MMR vaccine. 42 U.S.C.
§ 300aa-14; 42 C.F.R. § 100.3.
The court assigned the Greenbergs’ petition to a spe-
cial master. 42 U.S.C. §§ 300aa-11(a)(1), 300aa-12(d).
Initially, the Greenbergs’ petition was considered during a
multi-case proceeding about autism—the Omnibus Au-
tism Proceeding. See Cedillo, 617 F.3d at 1334; Haz-
lehurst v. Sec’y of Health & Human Servs., 604 F.3d 1343,
1345 (Fed. Cir. 2010). When that proceeding ended, the
Greenbergs filed an amended petition, seeking compensa-
tion only for a table injury based on the allegation that
4 GREENBERG v. SECRETARY OF HEALTH
J.G. had suffered an encephalopathy within 15 days of
receiving the April 2004 MMR vaccine. 42 U.S.C.
§ 300aa-14(a)(II)(B).
On December 8, 2014, the special master dismissed
the Greenbergs’ petition. Greenberg v. Sec’y of Health &
Human Servs., No. 08-24V, 2014 WL 7496604, at *1 (Fed.
Cl. Office of Special Masters Dec. 8, 2014). He first con-
cluded that their petition was time-barred. J.G. received
his MMR vaccine on April 13, 2004, and if his symptoms
began within 15 days (as alleged), the petition for com-
pensation had to be filed within 36 months of April 28,
2004, 42 U.S.C. § 300aa-16(a)(2), i.e., April 28, 2007. But
the Greenbergs filed their petition in January 2008,
beyond the due date. Greenberg, 2014 WL 7496604, at
*8–9. The special master also found that equitable tolling
did not excuse the lateness of the petition, rejecting the
argument that the government’s endorsement of certain
vaccine studies was fraudulent and prevented a timely
filing. Id. at *9–10.
The special master alternatively determined that the
Greenbergs had failed to demonstrate by a preponderance
of the evidence that J.G. had suffered, within 15 days of
receiving his MMR vaccine, an “acute encephalopathy,”
followed by at least six months of a “chronic encephalopa-
thy.” Id. at *13–15 (citing 42 C.F.R. § 100.3(b)(2)). The
special master addressed two pieces of evidence concern-
ing the onset of the alleged acute encephalopathy. One
was a December 2012 letter, in which Mrs. Greenberg
stated that the Greenbergs “first noticed that [J.G.] was
sick when he had a fever and seemed very sensitive to his
surroundings like to light and sound” and “just seemed
weak and out of it and very irritable”; the other was an
undated letter from Dr. Kevin Passer confirming the
consistency of the descriptions in Mrs. Greenberg’s letter
with an acute encephalopathy. Id. at *14. Because,
however, those letters did not state when J.G. experienced
the described symptoms, the special master found them to
GREENBERG v. SECRETARY OF HEALTH 5
be insufficient proof of the onset of an acute encephalopa-
thy within 15 days of J.G.’s MMR vaccination. Id. at *14.
Moreover, the special master found that J.G.’s irritability
and sensitivity to his surroundings did not indicate “a
significantly decreased level of consciousness,” a defining
symptom of an acute encephalopathy. Id. (citing 42
C.F.R. § 100.3(b)(2)(i)). The special master also concluded
that another letter by Dr. John Green showed no more
than that J.G. suffered a metabolic encephalopathy, a
type of encephalopathy not covered by the Vaccine Injury
Table. Id. at *15 n.17 (citing 42 C.F.R. § 100.3(b)(2)(iii)).
Likewise, none of J.G.’s medical records between his one-
year well-child visit (when he received the MMR vaccine)
and his two-year visit indicated that J.G. had suffered
symptoms of an acute or chronic encephalopathy. Id. at
*14.
The Greenbergs did not timely file a motion seeking
review of the special master’s decision by the Court of
Federal Claims. Accordingly, the special master’s deci-
sion became a final judgment on January 8, 2015. 42
U.S.C. § 300aa-12(e); U.S. Ct. Fed. Claims, App’x B,
Vaccine R. 23 (Vaccine Rule 23).
On February 3, 2015, the Greenbergs moved for re-
consideration of the special master’s decision. The special
master, to whom the motion was assigned, denied the
motion on March 20, 2015. He considered the motion
under Vaccine Rule 36(a)(2), which allows a petitioner,
after entry of judgment, to move “for reconsideration
pursuant to [U.S. Ct. Fed. Claims R. (RCFC)] 59 or oth-
erwise seek[ ] relief from a judgment or order pursuant to
RCFC 60.”
Insofar as the motion would be read to seek reconsid-
eration of the December 2014 special master’s decision,
the special master deemed it untimely and also outside
RCFC 59 because the Greenbergs had not sought judicial
review of the December 2014 decision. Insofar as the
6 GREENBERG v. SECRETARY OF HEALTH
motion would be read to challenge the January 2015
judgment, the special master concluded that RCFC 60(a)
was unavailable because the Greenbergs did not allege
any “clerical mistakes,” “oversights,” or “omissions” in
that judgment. The special master also rejected reconsid-
eration under RCFC 60(b). Because Dr. Passer’s and Dr.
Green’s letters did not support the Greenbergs’ table
encephalopathy claim, the special master determined that
oral testimony from the Greenbergs could not change the
result, and he ultimately concluded that no other reason
justified reconsideration of his no-encephalopathy finding.
And the special master again rejected the Greenbergs’
equitable-tolling argument, while adding that, even if
their petition had been timely filed, the Greenbergs’
failure to prove a table encephalopathy independently
prevented them from receiving compensation.
On March 12, 2015, before the special master ruled on
the reconsideration motion, the Greenbergs filed a “Notice
of Review” in this court. On June 10, 2015, we concluded
that we lacked jurisdiction, because our jurisdiction does
not encompass direct review of special masters’ decisions.
J.A. 42; see Grimes v. Sec’y of Dep’t of Health & Human
Servs., 988 F.2d 1196, 1198 (Fed. Cir. 1993). We trans-
ferred the Greenbergs’ notice of review to the Court of
Federal Claims in part—not for review by that court of
the January 2015 judgment (time had run out on obtain-
ing any such review), but for possible review of the special
master’s March 2015 order denying reconsideration.
The Court of Federal Claims, acting “in the interest of
justice,” reviewed and affirmed the special master’s order
refusing reconsideration as not “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law.” Greenberg v. Sec’y of Health & Human Servs., No.
08-24V, 2015 WL 6684703, at *2–3 (Fed. Cl. Nov. 2, 2015).
The Greenbergs now appeal from the Court of Federal
Claims’ decision. 42 U.S.C. § 300aa-12(f). We have
jurisdiction under 28 U.S.C. § 1295(a)(3).
GREENBERG v. SECRETARY OF HEALTH 7
DISCUSSION
We review de novo the Court of Federal Claims’ affir-
mance of the special master’s decision denying reconsid-
eration. See Hines v. Sec’y of Dep’t of Health & Human
Servs., 940 F.2d 1518, 1523–24 (Fed. Cir. 1991). In effect,
we review the special master’s underlying decision, set-
ting it aside only if arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law. See
id. at 1524; Vaccine Rule 36(b)(7). The special master
determined, and the Greenbergs do not dispute, that the
motion for reconsideration should be evaluated only under
Vaccine Rule 36(a)(2), and even then only as seeking post-
judgment relief under RCFC 60(b).
The special master did not abuse his discretion in
finding no Rule 60(b) ground justifying reconsideration of
his determination that the Greenbergs had failed to show
that J.G. suffered a table encephalopathy. In his Decem-
ber 2014 decision, the special master correctly described
the statutes and regulations governing entitlement to
compensation for a table encephalopathy, and he dis-
cussed at length the application of those laws to the
Greenbergs’ medical records, affidavits, and letters.
Regarding J.G.’s alleged table encephalopathy, the
Greenbergs have pointed us to no evidence or arguments
undermining the adverse finding on that issue, let alone
under the demanding standard for Rule 60(b) relief.
The special master likewise acted within his discre-
tion in rejecting the Greenbergs’ argument that reconsid-
eration was warranted because they had been denied an
evidentiary hearing before the December 2014 decision. A
special master may, but is not required to, conduct an
evidentiary hearing. 42 U.S.C. § 300aa-12(d)(3)(B)(v);
Vaccine Rule 8(d). The record does not show that the
Greenbergs requested an evidentiary hearing, although
they could have. See Vaccine Rule 6(b). In any event, the
Greenbergs filed at least 140 exhibits and participated in
8 GREENBERG v. SECRETARY OF HEALTH
several status conferences with the special masters as-
signed to their petition, and they have not identified what
additional evidence they would have submitted or argu-
ments they would have made at an evidentiary hearing or
how such evidence and arguments could have changed the
outcome of their case. In these circumstances, we see no
abuse of discretion in rejecting the lack-of-evidentiary-
hearing basis for reconsideration.
Last, the special master did not abuse his discretion
in refusing reconsideration even if equitable tolling might
have excused the Greenbergs’ untimely petition. The
equitable-tolling ruling made no difference to the outcome
here, because the special master independently rejected
the Greenbergs’ claim on the merits, finding that the
Greenbergs had failed to show that J.G. suffered a table
encephalopathy. Having already concluded that the
special master need not have reconsidered his table-
encephalopathy determination, we do not disturb the
resolution of the Greenbergs’ equitable-tolling argument.
CONCLUSION
For the foregoing reasons, the judgment of the Court
of Federal Claims is affirmed.
AFFIRMED