NOTE: This disposition is nonprecedential.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 Justice, Washington, DC, for respondent-appellee. Also represented 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 decision 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 compensation may prove causation in one of two ways, depending 

upon whether the case involves a “Table injury” or an “offTable injury.” See Moberly v. Sec’y of Health & Human 

Servs., 592 F.3d 1315, 1321 (Fed. Cir. 2010). If the administered 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 injury 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 injury.
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 Services, 418 F.3d 1274 (Fed. Cir. 2005):

[The petitioner’s] burden is to show by preponderant evidence that the vaccination brought about 

[his or] her injury by providing: (1) a medical theory causally connecting the vaccination and the injury; (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 Human 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 compensation, 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 filings does a medical expert articulate a theory causally connecting the vaccines to his injuries, as 

required by Althen Prong One. Likewise, petitioner describes no logical sequence of cause and effect, as required by Althen Prong Two, nor does he 

demonstrate a proximate temporal relationship between 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 medical 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 result 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 respond 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 interpreted 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 prosecute. 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. Moreover, the scant medical records that were filed in 

the case fail to satisfy the causation criteria established 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 dismissal of his petition for failure to prosecute was an abuse 

of discretion. Byrd II, 142 Fed. Cl. at 84, 86–87. Addressing 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 review 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. Porter, 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-deferential standard, we are in effect reviewing the decision of 

the special master under the deferential arbitrary and capricious 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 Enters., 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 fanciful; (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 findings 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 discretion in dismissing Mr. Byrd’s petition for failure to prosecute. 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 procedural 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 residual 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 illness disability, injury, or condition from the vaccine which 

resulted in inpatient hospitalization or surgery.” Appellant’s Informal Br. at 8; see also Byrd II, 142 Fed. Cl. at 85 

& n.10 (“Mr. Byrd also never claimed, nor provided evidence to support, inpatient hospitalization or surgery.”). 

We need not reach this argument, however, because Mr. 

Byrd was also required to satisfy the requirements of Althen. The chief special master thoroughly reviewed the record 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 review of the decision of the chief special master and affirming the decision of the chief special master.

AFFIRMED

COSTS

Each party shall bear its own costs.