VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_09-vv-00318 Package ID: USCOURTS-cofc-1_09-vv-00318 Petitioner: KELLY ARANGO, Parent of, ISABELA OROZCO, a Minor Filed: 2009-05-11 Decided: 2013-02-22 Vaccine: DTaP Vaccination date: 2008-03-28 Condition: infantile spasms, hypsarrhythmia, hypotonia, and developmental delay Outcome: denied Award amount USD: AI-assisted case summary: Kelly Arango, on behalf of her minor daughter Isabela Orozco, filed a petition for compensation under the National Vaccine Injury Compensation Program on May 11, 2009. The petition alleged that Isabela suffered injuries as a result of five vaccines administered on March 28, 2008: DTaP, Haemophilus influenzae type b (Hib), inactivated polio virus (IPV), Prevnar (PCV7), and rotavirus. Isabela was approximately four months old at the time of vaccination. Special Master Sandra Lord denied the petition on August 23, 2012, finding that Isabela did not suffer a Table injury and that causation-in-fact was not established. Petitioner sought review of this decision, and on February 22, 2013, Judge George W. Miller of the Court of Federal Claims denied the motion for review, affirming the Special Master's decision. The case was dismissed without compensation. The public decision does not name petitioner's counsel or respondent's counsel. Isabela Orozco was born on November 27, 2007. She received vaccinations on November 29 and December 28, 2007, without incident. On March 28, 2008, she received the DTaP, Hib, IPV, Prevnar, and rotavirus vaccines. Approximately six days later, on April 3, 2008, her mother reported symptoms of "zoning out" with eyes rolling back and rhythmical shaking. An office visit that day confirmed these concerns, and Isabela was taken to Stamford Hospital. She was treated by neurologist Dr. Philip Overby. An EEG on April 23, 2008, showed an electroclinical seizure with multifocal spikes. On May 5, 2008, an EEG confirmed hypsarrhythmia, characteristic of infantile spasms. Dr. Overby diagnosed cryptogenic infantile spasms and prescribed ACTH. Isabela was hospitalized and discharged on May 12, 2008, with a diagnosis of infantile spasms, hypsarrhythmia, hypotonia, and developmental delay. Over the following three months, Isabela showed improvement, and her seizures ceased. She received a Hib vaccine on July 8, 2008, without adverse reaction. However, on August 28, 2008, she received a hepatitis B vaccine, and her seizures returned shortly thereafter. Dr. Henkind noted that Isabela's seizures had returned "within 24 hours of last vaccine given." An EEG on September 18, 2008, revealed abnormalities including hypsarrhythmia. Dr. Overby restarted ACTH treatment and prescribed Topamax. Isabela's condition has remained unchanged, with delayed development. Petitioner's theory of causation was that the five vaccines administered on March 28, 2008, constituted either a Table injury (acute encephalopathy within 72 hours of a covered vaccine) or caused infantile spasms and hypotonic-hyporesponsive episodes through causation in fact. Special Master Lord denied the Table injury claim, finding that while Isabela experienced seizures within 72 hours of vaccination, the contemporaneous medical records did not document the additional features required for a Table-qualifying acute encephalopathy, as seizures alone are not sufficient to constitute a diagnosis of encephalopathy according to 42 C.F.R. § 100.3(b)(2)(i)(E). The Special Master found that Isabela did not suffer an acute encephalopathy within 72 hours of vaccination, only seizures. Regarding the causation-in-fact claim, the Special Master found that the petitioner failed to establish a medical theory causally connecting the vaccines to infantile spasms beyond the temporal relationship. The onset of seizures approximately six days after vaccination was considered insufficient to establish causation under the Althen standard. Petitioner sought review, arguing that the Special Master applied an incorrect standard for the Table injury analysis. Judge Miller affirmed the Special Master's ruling, finding no legal error in her application of the Qualifications and Aids to Interpretation (QAI) criteria to the evidence. The petition was denied. Theory of causation field: Petitioner alleged a Table injury (acute encephalopathy within 72 hours of DTaP vaccine) and causation-in-fact for infantile spasms, hypsarrhythmia, hypotonia, and developmental delay following DTaP, Hib, IPV, Prevnar, and rotavirus vaccines administered on March 28, 2008, to a 4-month-old. The Table injury claim was denied because, although seizures occurred within 72 hours of vaccination (onset April 3, 2008), the medical records did not demonstrate the additional criteria for acute encephalopathy as defined by 42 C.F.R. § 100.3(b)(2)(i)(E), which states seizures alone are insufficient. The causation-in-fact claim was denied for lack of a medical theory beyond temporal association, as the initial onset was approximately six days post-vaccination. A subsequent hepatitis B vaccine on August 28, 2008, was associated with a return of seizures. Special Master Sandra Lord denied the petition on August 23, 2012. Judge George W. Miller denied petitioner's motion for review on February 22, 2013. Petitioner's attorney was David E. Marmelstein. Respondent was the Secretary of Health and Human Services. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_09-vv-00318-cl821228 Date issued/filed: 2013-02-22 Pages: 1 Docket text: combined-opinion -------------------------------------------------------------------------------- In the United States Court of Federal Claims No. 09-318V (Filed Under Seal: February 4, 2013) (Reissued for Publication: February 22, 2013) TO BE PUBLISHED ) KELLY ARANGO, Parent of, ISABELA ) National Vaccine Injury Compensation OROZCO, a Minor, ) Program; National Childhood Vaccine ) Injury Act of 1986, 42 U.S.C. §§ 300aa-1 Petitioner, ) to -34; DTaP Vaccine; Acute ) Encephalopathy; Seizures; 42 C.F.R. v. ) § 100.3(b)(2)(i)(E). ) SECRETARY OF HEALTH AND ) HUMAN SERVICES, ) ) Respondent. ) ) David E. Marmelstein, David E. Marmelstein & Associates, Enfield, Conn., for petitioner. Ryan D. Pyles, Trial Attorney, Gabrielle M. Fielding, Assistant Director, Vincent J. Matanoski, Acting Deputy Director, Rupa Bhattacharyya, Director, Torts Branch, Stuart F. Delery, Acting Assistant Attorney General, Civil Division, U.S. Department of Justice, Washington, D.C., for respondent. OPINION AND ORDER1 GEORGE W. MILLER, Judge Petitioner, Kelly Arango, on behalf of her daughter, Isabela Orozco, filed a motion for review (docket entry 42, Sept. 20, 2012) of Special Master Sandra Lord’s August 23, 2012 decision (docket entry 40) denying compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-1 to -34, established by the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755 (codified as amended at 42 U.S.C. §§ 300aa-1 to -34 (2006)) (the “Vaccine Act”). Petitioner filed for compensation on May 11, 2009, alleging that Isabela was injured by the diphtheria, tetanus, and acellular pertussis 1 Pursuant to Rule 18(b), Appendix B of the Rules of the Court of Federal Claims, this Opinion and Order was initially filed under seal. The parties were afforded fourteen days in which to propose redactions. Neither party proposed any redactions. Accordingly, the Opinion and Order is released in its entirety. (“DTaP”); haemophilus influenza type B (“Hib”); inactivated poliovirus (“IPV”); Prevnar (pneumococcal 7-valent conjugate); and rotavirus vaccines she received on March 8, 2008. Special Master Lord held an entitlement hearing on March 25, 2011 in New York City. The special master ruled that petitioner failed to prove a Table injury because Isabela only suffered seizures, not an acute encephalopathy. As to causation-in-fact, the special master found insufficient evidence of causation: merely a temporal relationship between Isabela’s vaccination and her infantile spasms. Thus, the special master dismissed the petition. Petitioner timely filed a motion for review under § 300aa-12(e) of the Vaccine Act. See Pet’r’s Mot. for Review and Supp’g Mem. of Law (“Pet.”) (docket entry 42, Sept. 20, 2012). Petitioner asserts that the special master’s decision should be vacated and the Court should remand the case back to the special master for determination of appropriate compensation. Id. at 14. I. Background2 A. Isabela’s Medical History Isabela Orozco was born on November 27, 2007. Arango, 2012 WL 4018028, at *2. On November 29, 2007 and December 28, 2007, she received vaccinations without incident. Id. As part of her four-month well-child check up, she received DTaP, Hib, IPV, Prevnar (pneumococcal 7-valent conjugate), and rotavirus vaccines on March 28, 2008. Id. In the days following her March 28 vaccinations, Isabela began to experience symptoms of what would eventually be diagnosed as infantile spasms. Id. at *2–4. Petitioner reported these symptoms to Isabela’s pediatrician, Dr. Jennifer Henkind, in a April 3, 2008 phone call, noting that “Isabela seems to ‘zone out’ and eyes roll to the side of her head, doesn’t turn her head when mom talks to her, ‘snaps out of it’ a few minutes later. Has been doing this a few times a day for the past few days.” Id. at *2. Isabela was brought to the pediatrician’s office on April 3, and while there she again experienced “rhythmical shaking in all four extremities.” Id. She was then taken to the Stamford Hospital Emergency Room and admitted to the hospital, where she was treated by Dr. Philip Overby, a neurologist. Id. Isabela underwent a 24-hour electroencephalogram (“EEG”) on April 23, 2008, and it revealed an electroclinical seizure, non- localizable, and multifocal spikes and poly-spikes. Id. at *3. Following a week in which Isabela experienced seizures lasting several seconds in clusters of four to five minutes, Dr. Overby once again examined Isabela on May 5, 2008. Id. An EEG revealed that Isabela was experiencing hypsarrhythmia, which is “characteristic of infantile spasms.” Id. Isabela was prescribed the anti-epileptic medications Phenobarbital and Keppra. Id. Dr. Overby noted that Isabela was most likely experiencing cryptogenic, rather than symptomatic, infantile spasms. Id. She was admitted to the Montefiore Epilepsy Monitoring 2 The parties do not dispute the underlying facts of this case, which, for purposes of this Opinion and Order, are taken from the special master’s decision, Arango v. Sec’y of Health & Human Servs., No. 09-318V, 2012 WL 4018028 (Fed. Cl. Spec. Mstr. Aug. 23, 2012). For a detailed recitation of the underlying facts, see id. at *3–16. 2 Unit. Id. While there, Isabela was prescribed adrenocorticotropic hormone (“ACTH”), and on May 12, 2008, she was discharged with a diagnosis of infantile spasms, hypsarrhythmia, hypotonia, and developmental delay. Id. Dr. Overby noted on May 20, 2008 that Isabela was partially responding to the ACTH treatment. Id. Over the next three months, Isabela’s condition appeared to improve significantly. Id. Her seizures had ceased, and she regained previously lost developmental milestones. Id. She received another Hib vaccine on July 8, 2008 without experiencing any symptoms. Id. On August 28, 2008, however, she was given a hepatitis B vaccine, and shortly thereafter her symptoms returned. Id. at *3–4. Petitioner phoned Dr. Henkind’s office on September 2, 2008 to report that Isabela appeared to have experienced a seizure. Id. at *3. Dr. Henkind’s office noted that it would “hold all further vaccines until done with spasm treatment and has been stable.” Id. (quoting Pet’r’s Ex. 4, at 93). On September 18, 2008, another EEG was performed on Isabela, and it revealed “numerous abnormalities, including hypsarrhythmia.” 2012 WL 4018028, at *4. Dr. Overby restarted Isabela’s ACTH treatment and also prescribed Topamax, another anti-convulsant medication. Id. Dr. Henkind noted during a September 24, 2008 appointment that Isabela’s seizures had returned “within 24 hours of last vaccine given.” Id. (quoting Pet’r’s Ex. 4, at 22). Isabela’s diagnosis of infantile spasms remains unchanged, and her development has been delayed. 2012 WL 4018028, at *4. She stopped taking Prednisone and Keppra, but her Topamax has been increased, and in addition she has been prescribed Depakote, another anti- epileptic medication. Id. II. Procedural History Petitioner filed her petition on May 11, 2009 (docket entry 1). The petition claims that Isabela’s injury satisfies the requirements both for an encephalopathy Table injury and that the vaccine was the cause-in-fact of Isabela’s encephalopathy. 2012 WL 4018028, at *1. Respondent subsequently filed a Vaccine Rule 4(c) report (docket entry 9, July 28, 2009); petitioner filed an expert report from Dr. Overby (docket entry 16, May 27, 2010); respondent filed an expert report from Dr. Mary Anne Guggenheim, a pediatric neurologist (docket entry 17, Aug. 11, 2010); and petitioner filed a diagnostic report (docket entry 23, Feb. 18, 2011). Special Master Lord held an entitlement hearing on March 25, 2011. Both parties filed post-hearing briefs (docket entry 34, July 12, 2011; docket entry 36, Aug. 26, 2011). The special master issued her Decision on August 23, 2012 finding that petitioner failed to establish either a Table encephalopathy or causation-in-fact of an off-Table injury. III. Jurisdiction and Standard of Review Pursuant to the Vaccine Act, the Court of Federal Claims has jurisdiction to review decisions of special masters. 42 U.S.C. § 300aa-12(e). The Court reviews the legal conclusions of the special master de novo and defers to the special master on findings of fact, unless the Court determines that such findings are arbitrary or capricious. Porter v. Sec’y of Health & Human Servs., 663 F.3d 1242, 1248–49 (Fed. Cir. 2011); Broekelschen v. Sec’y of Health & Human Servs., 618 F.3d 1339, 1345 (Fed. Cir. 2010). “‘[R]eversible error will be extremely difficult to demonstrate’ where the special master ‘has considered the relevant evidence of 3 record, drawn plausible inferences and articulated a rational basis for the decision.’” Porter, 663 F.3d at 1253–54 (quoting Hines v. Sec’y of Health & Human Servs., 940 F.2d 1518, 1528 (Fed. Cir. 1991)). IV. Discussion Petitioner challenges only the special master’s holding that Isabela’s injury was not a Table injury. Pet. 1–2. To establish a Table injury, petitioner must show that Isabela suffered an “illness, disability, injury, or condition set forth in the Vaccine Injury Table . . . and the first symptom or manifestation of such illness, disability, injury, or condition . . . occurred within the time period after vaccine administration set forth in the Vaccine Injury Table.” 42 U.S.C. § 300aa-11(c)(1)(C)(i). The Vaccine Injury Table is found at 42 U.S.C. § 300aa-14(a) and 42 C.F.R. § 100.3(a).3 In this case, petitioner alleges that Isabela suffered an encephalopathy. Pet. 1–2. Of the vaccines Isabela received on March 28, 2008, only the DTaP vaccine is associated in the Vaccine Injury Table with an encephalopathy. 42 C.F.R. § 100.3(a)(II). The time period for manifestation of an encephalopathy is seventy-two hours after administration of the DTaP vaccine. Id. A Table “encephalopathy” is defined as “any significant acquired abnormality of, or injury to, or impairment of function of the brain.” § 300aa-14(b)(3)(A). The Secretary of Health and Human Services’ Qualifications and Aids to Interpretation (“QAI”) further limit an encephalopathy to cases in which the vaccine “recipient manifests, within the applicable period, an . . . acute encephalopathy, and then a chronic encephalopathy persists in such person for more than 6 months beyond the date of vaccination.” § 100.3(b)(2). An acute encephalopathy is defined as “one that is sufficiently severe so as to require hospitalization (whether or not hospitalization occurred).” § 100.3(b)(2)(i). In particular: For children less than 18 months of age who present without an associated seizure event, an acute encephalopathy is indicated by a significantly decreased level of consciousness lasting for at least 24 hours. Those children less than 18 months of age who present following a seizure shall be viewed as having an acute encephalopathy if their significantly decreased level of consciousness persists beyond 24 hours and cannot be attributed to a postictal state (seizure) or medication. § 100.3(b)(2)(i)(A). Section 100.3(b)(2)(i)(D) of the QAI further states that a “significantly decreased level of consciousness” is indicated by “the presence of at least one of the following clinical signs for at least 24 hours or greater”: (1) Decreased or absent response to environment (responds, if at all, only to loud voice or painful stimuli); 3 The statute permits regulations promulgated by the Secretary of Health and Human Services to modify the statutory version of the Table. 42 U.S.C. § 300aa-14(c)(1). 4 (2) Decreased or absent eye contact (does not fix gaze upon family members or other individuals); or (3) Inconsistent or absent responses to external stimuli (does not recognize familiar people or things). The QAI also sets forth symptoms that the Table considers insufficient to prove an acute encephalopathy: The following clinical features alone, or in combination, do not demonstrate an acute encephalopathy or a significant change in either mental status or level of consciousness as described above: Sleepiness, irritability (fussiness), high-pitched and unusual screaming, persistent inconsolable crying, and bulging fontanelle. Seizures in themselves are not sufficient to constitute a diagnosis of encephalopathy. In the absence of other evidence of an acute encephalopathy, seizures shall not be viewed as the first symptom or manifestation of the onset of an acute encephalopathy. § 100.3(b)(2)(i)(E) (emphasis added). The special master found that, because Isabela’s only symptoms were seizures, petitioner failed to prove that Isabela suffered an acute encephalopathy within seventy-two hours of her DTaP vaccine. 2012 WL 4018028, at *14 (“Isabela did not suffer an acute encephalopathy in the 72 hours following her vaccination; she suffered seizures.”). The special master found that it was not enough that within seventy-two hours of the vaccination something happened which led to Isabel’s chronic encephalopathy. Id. at *15. Rather, the Table requirement is that an acute encephalopathy must occur within seventy-two hours of the vaccine. Id. Since Isabela never experienced symptoms sufficient to prove an acute encephalopathy, the special master found that she had not suffered a Table encephalopathy. Id. at *14–15. Petitioner argues that the special master erred by finding that Isabela’s seizures within seventy-two hours of her DTaP vaccine did not constitute an acute encephalopathy. First, petitioner cites Dr. Henkind’s testimony that she would have admitted Isabela to the hospital if she had been aware of the symptoms that Isabela experienced in the seventy-two hours after her vaccine (March 28 through April 1, 2008). Pet. 10 (quoting Hr’g Tr. 29:16–30:6 (docket entry 31, April 28, 2011)). Petitioner seems to argue that this testimony is sufficient to satisfy § 100.3(b)(2)(i). See Pet. 3 (quoting § 100.3(b)(2)(i)(A) (defining an acute encephalopathy as “one that is sufficiently severe so as to require hospitalization (whether or not hospitalization occurred)”)). Second, petitioner argues that the actual cause of Isabela’s injury is unknown. Pet. 10–12. The Court understands petitioner to be arguing that, if the actual cause of the injury is unknown, it should be considered a Table injury. See Pet. 3 (quoting § 100.3(b)(2)(iii) (“If at the time a decision is made on a petition filed under section 2111(b) of the Act for a vaccine-related injury or death, it is not possible to determine the cause by a preponderance of the evidence of an encephalopathy, the encephalopathy shall be considered to be a condition set forth in the Table.”)). Neither of petitioner’s two arguments is reason to reverse the special master’s decision. 5 Petitioner’s first argument, based on § 100.3(b)(2)(i), ignores the exception contained in § 100.3(b)(2)(i)(E). It is true that § 100.3(b)(2)(i) defines an acute encephalopathy as an encephalopathy that is severe enough to require hospitalization. The QAI requires, however, additional evidence other than seizures. § 100.3(b)(2)(i)(E) (“Seizures in themselves are not sufficient to constitute a diagnosis of encephalopathy. In the absence of other evidence of an acute encephalopathy, seizures shall not be viewed as the first symptom or manifestation of the onset of an acute encephalopathy.”). Petitioner does not dispute, however, that Isabela’s symptoms were seizures. Therefore, the special master correctly determined that Isabela’s symptoms were insufficient to establish an acute encephalopathy. Petitioner’s second argument—that the actual cause of Isabela’s injury is unknown— relies on an incorrect reading of § 100.3(b)(2)(iii), which does not govern how a petitioner may prove an encephalopathy. Rather, that regulation governs how a respondent may rebut a petitioner’s proof of an encephalopathy. See Nilson v. Sec’y of Health & Human Servs., 69 Fed. Cl. 678, 682–83 (2006). Given that the special master correctly determined that Isabela’s seizures did not constitute an acute encephalopathy, the special master did not consider the question of whether respondent had proved a non-vaccine cause of Isabela’s injury. See Argueta v. Sec’y of Health & Human Servs., No. 07-784V, 2011 WL 2945803, at *2 n.5 (Fed. Cl. Spec. Mstr. June 30, 2011). Thus, § 100.3(b)(2)(iii) is irrelevant to petitioner’s Table injury claim and therefore does not excuse petitioner from the requirement of proving that Isabela’s injury satisfied the QAI requirements for an acute encephalopathy. CONCLUSION In view of the foregoing, the Court upholds the special master’s findings of fact and conclusions of law as well as the special master’s decision denying petitioner’s claim for compensation under the Vaccine Act. Accordingly, petitioner’s motion for review is DENIED and Special Master Lord’s August 8, 2012 decision is AFFIRMED. IT IS SO ORDERED. s/ George W. Miller GEORGE W. MILLER Judge 6 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_09-vv-00318-cl-extra-855948 Date issued/filed: 2013-02-28 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 855948 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS ************************* KELLY ARANGO, Parent of * ISABELA OROZCO, A Minor, * * No. 09-318V Petitioner, * Special Master Christian J. Moran * v. * Filed: February 28, 2013 * SECRETARY OF HEALTH * Attorneys’ fees and costs; reasonable basis; AND HUMAN SERVICES, * award in the amount to which respondent * has not objected. Respondent. * * ************************* UNPUBLISHED DECISION ON FEES AND COSTS1 David E. Marmelstein, Enfield, CT, for Petitioner; Ryan D. Pyles, U.S. Department of Justice, Washington, D.C., for Respondent. Respondent filed a stipulation of fact concerning final attorneys’ fees and costs in the above-captioned matter on February 26, 2013. Previously, petitioner Kelly Arango submitted a draft final application for attorneys’ fees and costs to respondent for review. Upon review of petitioner’s application, respondent does not object to the amount of fees and costs requested for the proceedings in this case. The Court awards the amount to which respondent does not object. Ms. Arango, on behalf of her daughter, Isabela, filed for compensation alleging that Isabela was injured by the diphtheria, tetanus, and acellular pertussis, haemophilus influenza type B, inactivated poliovirus, Prevnar (pneumococcal 7-valent conjugate), and rotavirus vaccines she received on March 8, 2008. An entitlement hearing was held on March 25, 2011. Special Master Lord found insufficient evidence of causation and dismissed petitioner’s petition on August 23, 2012. Ms. Arango timely filed a motion for review with the Court of Federal 1 The E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17, 2002), requires that the Court post this decision on its website. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special master will appear in the document posted on the website. Claims. The Court affirmed Special Master Lord’s decision and denied petitioner’s motion for review. Opinion and Order, issued February 4, 2013. Even though compensation was denied, a petitioner who brings her petition in good faith and who has a reasonable basis for the petition may be awarded attorneys’ fees and costs. See 42 U.S.C. § 300aa–15(e)(1). Here, counsel for petitioner gathered and filed medical records, retained an expert to write a report and testify, brought the case to hearing, and sought review of the decision denying compensation. Thus, because petitioner’s counsel acted in good faith and there was a reasonable basis for proceeding, petitioner is eligible for an award of attorneys’ fees and costs. Respondent does not contend that petitioner failed to satisfy these criteria. Ms. Arango seeks a total of $29,946.36 in attorneys’ fees and costs for petitioner’s counsel. Additionally, Ms. Arango, in compliance with General Order No. 9, states that she incurred no out-of-pocket litigation expenses while pursuing this claim. Respondent has no objection to the amount requested for attorneys’ fees and costs. After reviewing the request, the court awards a check made payable to petitioner and petitioner’s attorney in the amount of $29,946.36 for attorneys’ fees and other litigation costs. The court thanks the parties for their cooperative efforts in resolving this matter. The Clerk shall enter judgment accordingly.2 IT IS SO ORDERED. s/Christian J. Moran Christian J. Moran Special Master 2 Pursuant to Vaccine Rule 11(a), the parties can expedite entry of judgment by each party filing a notice renouncing the right to seek review by a United States Court of Federal Claims judge.