VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_24-vv-00196
Package ID: USCOURTS-cofc-1_24-vv-00196
Petitioner: Houston Byrd, Jr.
Filed: 2024-02-05
Decided: 2025-03-14
Vaccine: influenza
Vaccination date: 2015-10-01
Condition: headaches, stomachaches, elevated blood sugar levels, and weight loss
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Houston Byrd, Jr. filed a petition in February 2024, alleging injury from a flu and pneumonia vaccine administered simultaneously on April 21, 2023. However, the court found that Mr. Byrd was attempting to relitigate a prior 2017 case concerning flu and Pneumovax vaccinations he received in October 2015, which resulted in alleged headaches, stomachaches, elevated blood sugar, and weight loss. That prior case was dismissed for failure to prosecute and affirmed by the Court of Federal Claims and the Federal Circuit. In the current 2024 case, Mr. Byrd failed to provide any evidence of vaccination or injury, and did not comply with court orders to submit medical records. The special master dismissed the petition for failure to prosecute, insufficient evidence, and failure to state a claim. Mr. Byrd sought review of this dismissal, arguing the special master abused her discretion. The court affirmed the special master's decision, noting that the claim was barred by claim preclusion due to the prior litigation, and that the current petition was untimely and lacked the necessary supporting documentation. The court also found that Mr. Byrd's attempts to reopen the 2017 case were time-barred under the relevant rules and that his motion for review of the 2024 decision was also untimely.

Theory of causation field:
unclear

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_24-vv-00196-0
Date issued/filed: 2024-10-09
Pages: 15
Docket text: PUBLIC DECISION (Originally filed: 08/23/2024) regarding 26 DECISION of Special Master. Signed by Special Master Nora Beth Dorsey. (aevw) Service on parties made.
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Case 1:24-vv-00196-MRS Document 33 Filed 10/09/24 Page 1 of 15
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: August 23, 2024
Reissued for Public Availability: October 9, 2024
* * * * * * * * * * * * * * *
HOUSTON BYRD, JR., * PUBLISHED
*
Petitioner, * No. 24-196V
*
v. * Special Master Dorsey
*
SECRETARY OF HEALTH * Dismissal; Failure to State a Claim.
AND HUMAN SERVICES, *
*
Respondent. *
*
* * * * * * * * * * * * * * *
Houston Byrd, Jr., pro se, Newmark, OH, for Petitioner.
Mallori Browne Openchowski, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION GRANTING RESPONDENT’S MOTION TO DISMISS1
I. INTRODUCTION
On February 5, 2024, Houston Byrd, Jr. (“Petitioner”), acting pro se, filed a petition for
compensation under the National Vaccine Injury Compensation Program (“Vaccine Act” or “the
Program”), 42 U.S.C. § 300aa-10 et seq. (2018).2 Petition (ECF No. 1). On June 6, 2024,
Respondent filed a motion to dismiss Petitioner’s petition. Respondent’s Motion to Dismiss
(“Resp. Mot.”), filed June 7, 2024 (ECF No. 16). For the reasons described below, the
undersigned hereby grants Respondent’s motion to dismiss, and further dismisses the petition for
failure to prosecute. The undersigned also denies Petitioner’s other motions discussed below.
II. BACKGROUND
1 Pursuant to Vaccine Rule 18(b), this Decision was initially filed on August 23, 2023, and the
parties were afforded 14 days to propose redactions. The parties did not propose any redactions.
Accordingly, this Decision is reissued in its original form for posting on the court’s website.
2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National
Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended,
42 U.S.C. §§ 300aa-10 to -34 (2018) (“Vaccine Act” or “the Act”). All citations in this Decision
to individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa.
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Case 1:24-vv-00196-MRS Document 33 Filed 10/09/24 Page 2 of 15
On February 5, 2024, Petitioner filed a petition. Petition. Petitioner’s filings appear to
allege a claim arising out of a vaccine administered on April 21, 2023, and address issues which
appear to be related to his previous 2017 Vaccine Act case,3 a matter that was ultimately
dismissed by the United States Court of Appeals for the Federal Circuit. Byrd v. Sec’y of Health
& Hum. Servs., 778 F. App’x 924, 928 (Fed. Cir. 2019).
The present case was reassigned to the undersigned on February 22, 2024, and an initial
order, informing Petitioner about an initial conference and requesting the filing fee or an
application to proceed in forma pauperis, issued that day. Notice of Reassignment dated Feb. 22,
2024 (ECF No. 6); Order dated Feb. 22, 2024 (ECF No. 7). Thereafter, Petitioner filed several
letters and motions directed to this court, court personnel, and the Court of Federal Claims Chief
Judge, suggesting Petitioner did not intend to bring a new vaccine injury case but rather raising
concerns with his previously dismissed case. See ECF Nos. 8-10; Appendices A-G, K.
On February 27, 2024, Petitioner filed a motion for recusal. ECF No. 9. That same day,
he also filed a “Motion for Objection R. 46[4] and Findings and Conclusions, R. 52[5] to the
3 On July 3, 2017, Petitioner, also acting pro se, filed a petition for compensation under the
Vaccine Act, alleging that he suffered from headaches, stomach aches, elevated blood sugar
levels, and weight loss as a result of influenza (“flu”) and Pneumovax vaccinations he received
on October 1, 2015. Byrd v. Sec’y of Health & Hum. Servs., No. 17-900V, 2018 WL 6918820
(Fed. Cl. Spec. Mstr. Nov. 29, 2018), reconsideration den’d, 2019 WL 1024996, at *1 (Fed. Cl.
Spec. Mstr. Feb. 7, 2019), mot. for rev. den’d, 142 Fed. Cl. 79 (2019), aff’d, 778 F. App’x at
924. On November 29, 2018, the undersigned entered a decision dismissing the petition for
failure to prosecute, after determining that Petitioner had failed to establish that his injury had
persisted for at least six months, or that Petitioner had satisfied the causation requirements set
forth in Althen v. Secretary of Health & Human Services, 418 F.3d 1274, 1278 (Fed. Cir. 2005).
Id. at *2.
Petitioner moved for review by the Court of Federal Claims, challenging the
undersigned’s dismissal and arguing that the undersigned “violated procedural rules and laws.”
Byrd, 142 Fed. Cl. at 83. The Court of Federal Claims denied Petitioner’s motion for review and
affirmed the undersigned’s dismissal decision on February 7, 2019. Id. at 87. Petitioner
appealed, again challenging the undersigned’s dismissal, asserting unspecified factual and legal
errors in the undersigned’s analysis. On July 10, 2019, the Federal Circuit Court of Appeals
affirmed the undersigned’s dismissal decision. Byrd, 778 F. App’x at 924. Accordingly, that
case has been closed since 2019.
4 Rule 46 of the Rules of the Court of Federal Claims (“RCFC”) governs objections to a ruling or
order: “When the ruling or order is requested or made, a party need only state the action that it
wants the court to take or objects to, along with the grounds for the request or objection.” RCFC
46.
5 Rule 52 of the RCFC refers to findings and conclusions by the court and judgment related to
partial findings.
2

Case 1:24-vv-00196-MRS Document 33 Filed 10/09/24 Page 3 of 15
Alleged New Case Relevance,” in which Petitioner stated, “We are petitioning the court and
Respondents to address, [w]hy are not case No. 17-900V before the Federal Claims Court and
[that same case] before the United States Court of Appeals for the Federal Circuit in Default . . .
.” ECF No. 10 at 2.
In a letter dated March 18, 2024, Petitioner stated “Why is Federal Claims Court []
attempting to restart case No. 17-900V before the Federal Claims Court and [the same case]
before the United States Court of Appeals due to the Federal Circuit failure to ethically rule, in
compliance with the rules, upon the cases with a new and unnecessary case 1:24-vv-00196-UNJ,
received on February 17, 2024?” Appendix C at 1; see also Appendix E at 7 (“We are still
alleging abuse, waste and fraud. The prior case is in default.” (emphasis omitted)); Appendix F
at 1 (“The matter is in [d]efault and there is nothing new nor novel that a conference or hearing
will unveil.”); Appendix G at 3 (“Petitioner strenuously [o]bjects to the felonious attempts of
relitigating a case in [d]efault . . . .”). Petitioner also filed three documents dated February and
March 2019. Appendices H-J.
After these filings, including Petitioner’s waiver to an initial conference, the undersigned
ordered Respondent to file a responsive pleading, motion, or Rule 4(c) report, responsive to
Petitioner’s pleadings. Appendix G (waiver of all conferences and hearings); Order dated Apr.
8, 2024 (ECF No. 15).
On June 6, 2024, Respondent filed a motion to dismiss. Respondent’s Motion to Dismiss
(“Resp. Mot.”), filed June 7, 2024 (ECF No. 16). Respondent asserted “Petitioner’s 2024 case
should be dismissed because the petition fails to state a claim or provide any of the required
attachments (namely medical records)” pursuant to the Vaccine Act. Id. at 3 (citing Vaccine
Rule 2(c)(1)-(2)). To the extent Petitioner asserts any new injury arising from the October 1,
2015 flu vaccine, Respondent argued such a claim would be barred by the statute of limitations.
Id. (citing § 16(a)(2)).
In response to Respondent’s motion to dismiss, Petitioner filed a motion for sanctions, a
motion for “Objection, R. 46 and Findings and Conclusions, R. 52 to the Respondent’s June 7,
2024 Motion to Dismiss,” and a motion for default. ECF Nos. 17-19. The filings do not address
the issues raised in Respondent’s motion to dismiss. Petitioner seeks compensation in the
amount of $257,000.00 for pain and suffering from his “documented injury” ($250,000.00), and
compensation for “unnecessary waste of [] resources” ($7,000.00). ECF No. 19 at 2.
Respondent filed a response to Petitioner’s motion for default on July 26, 2024. Resp.
Response to ECF No. 19 (“Resp. Response”), filed July 26, 2024 (ECF No. 20). That same day,
Petitioner sent an email to court personnel regarding Respondent’s response, and that email was
filed into the record on July 29, 2024. Appendix K. On August 7, 2024, Petitioner filed a
motion for production of documents. ECF No. 23.
III. LEGAL STANDARDS
A. Motion to Dismiss
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Although the Vaccine Act and the Vaccine Rules contemplate case dispositive motions,
the dismissal procedures included within the Vaccine Rules do not specifically include a
mechanism for a motion to dismiss. See §§ 12(d)(2)(C)-(D); Vaccine Rule 21. However,
Vaccine Rule 1 provides that for any matter not specifically addressed by the Vaccine Rules, the
special master may regulate applicable practice consistent with the rules and the purpose of the
Vaccine Act. Vaccine Rule 1(b). Vaccine Rule 1 also provides that the Rules of the Court of
Federal Claims (“RCFC”) apply to the extent they are consistent with the Vaccine Rules.
Vaccine Rule 1(c).
Accordingly, there is a well-established practice of special masters entertaining motions
to dismiss in the context of RCFC 12(b)(6), which allows dismissal for “failure to state a claim
upon which relief can be granted.” See, e.g., Bakeman v. Sec’y of Health & Hum. Servs., No.
18-1861V, 2020 WL 1486836 (Fed. Cl. Spec. Mstr. Feb. 19, 2020); Gordon v. Sec’y of Health &
Hum. Servs., No. 16-374V, 2016 WL 2753503 (Fed. Cl. Spec. Mstr. Apr. 4, 2016); Herren v.
Sec’y of Health & Hum. Servs., No. 13-1000V, 2014 WL 3889070 (Fed. Cl. Spec. Mstr. July 18,
2014); Bass v. Sec’y of Health & Hum. Servs., 12-135V, 2012 WL 3031505, at *5 (Fed. Cl.
Spec. Mstr. June 22, 2012); Guilliams v. Sec’y of Health & Hum. Servs., No. 11-716V, 2012
WL 1145003, at *9-10 (Fed. Cl. Spec. Mstr. Mar. 14, 2012); Warfle v. Sec’y of Health & Hum.
Servs., 05-1399V, 2007 WL 760508 (Fed. Cl. Spec. Mstr. Feb. 22, 2007).
Under RCFC 12(b)(6), a case should be dismissed “when the facts asserted by the
claimant do not entitle him to a legal remedy.” Extreme Coatings, Inc. v. United States, 109 Fed.
Cl. 450, 453 (2013) (quoting Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002)). In
considering a motion to dismiss under RCFC 12(b)(6), allegations must be construed favorably
to the pleader. Id. (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). However, the pleading
must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Golden v. United States, 137 Fed. Cl. 155, 169 (2018) (quoting Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009)); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007).
To properly state a claim upon which relief can be granted, a petitioner must provide “a
short and plain statement of the claim, which shows that the petitioner is entitled to relief.”
Totes–Isotoner Corp. v. United States, 594 F. 3d 1346 (Fed. Cir. 2010) (quoting Bell, 550 U.S. at
555); see also Vaccine Rule 2(c). A petition does not need to include detailed factual allegations,
but “factual allegations must be enough to raise a right to relief above the speculative level . . .
on the assumption that all the allegations in the complaint are true (even if doubtful in fact).”
Bell, 550 U.S. at 555.
“To determine whether a complaint states a plausible claim for relief, the court must
engage in a context-specific analysis and ‘draw on its judicial experience and common sense.’”
Golden, 137 Fed. Cl. at 169 (quoting Ashcroft, 556 U.S. at 679). In assessing motions to dismiss
in the Vaccine Program, special masters have concluded that they “need only assess whether the
petitioner could meet the Act’s requirements and prevail, drawing all inferences from the
available evidence in petitioner’s favor.” Herren, 2014 WL 3889070, at *2; see also Warfle,
2007 WL 760508, at *2; Swint-Moore v. Sec’y of Health & Hum. Servs., No. 18-1112V, 2022
WL 1124478, at *6 (Fed. Cl. Spec. Mstr. Mar. 29, 2022) (“In ruling on a motion to dismiss, like
4

Case 1:24-vv-00196-MRS Document 33 Filed 10/09/24 Page 5 of 15
ruling on a motion for summary judgment, special masters must draw every inference concerning
disputed facts in favor of the nonmoving party.”).
“[I]n ruling on a motion to dismiss, the special master must accept as true the facts
asserted by the petitioner in determining whether the claim for relief under the Vaccine Act is
both ‘sufficient’ and plausible on its face.’” Felix ex rel. E.A.F. v. Sec’y of Health & Hum.
Servs., No. 21-1728V, 2024 WL 3807273, at *3-4 (Fed. Cl. Aug. 14, 2024) (citing W.J. v. Sec’y
of Health & Hum. Servs., 93 F.4th 1228, 1235 (Fed. Cir. 2024)) (discussing the similar standards
for adjudicating a motion to dismiss and a motion for summary judgment6 in the Vaccine
Program); Warfle, 2007 WL 760508, at *2; Guilliams, 2012 WL 1145003, at *9-10.
In the Vaccine Program, motions to dismiss are entertained throughout the course of
litigation. See, e.g., Bakeman, 2020 WL 1486836 (granting Respondent’s motion to dismiss for
failure to state a claim filed one year after the petition was filed); Dean v. Sec’y of Health &
Hum. Servs., No. 16-1245V, 2018 WL 3104388 (Fed. Cl. Spec. Mstr. May 29, 2018) (granting
Respondent’s motion to dismiss filed one year after the petition was filed); Muller ex rel. A.M. v.
Sec’y of Health & Hum. Servs., No. 14-801V, 2017 WL 2333637 (Fed. Cl. Spec. Mstr. Apr. 28,
2017) (dismissing a case pursuant to a motion to dismiss after a hearing was conducted and two
years after the petition was filed).
B. Vaccine Act
To be eligible for compensation under the Vaccine Act, a petitioner must demonstrate
that he “received a vaccine set forth in the Vaccine Injury Table.” § 11(c)(1)(A). Further, a
petitioner must demonstrate that he sustained an injury caused by a vaccine covered by the
Vaccine Act. § 11(c)(1)(C).
Petitioner must prove either (1) that he suffered a “Table Injury”—i.e., an injury falling
within the Vaccine Injury Table—corresponding to the vaccination, or (2) that he suffered an
injury that was actually caused by a recognized vaccination. See §§ 11(c)(1), 13(a)(1)(A). A
review of the record does not uncover any evidence that Petitioner suffered a “Table Injury,” nor
does he allege that he suffered a “Table Injury.” Therefore, Petitioner must prove a vaccine he
received caused his injury. To do so, Petitioner must establish, by preponderant evidence: “(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.” Althen, 418 F.3d at 1278.
Petitioner can show actual causation by filing medical records or an expert medical opinion in
support of his claim. Under the Vaccine Act, a petitioner may not receive compensation based
6 Vaccine Rule 8(d) states “the special master may decide a case on the basis of written
submissions without conducting an evidentiary hearing. Submissions may include a motion for
summary judgment, in which event the procedures set forth in RCFC 56 will apply.” Pursuant to
RCFC 56, summary judgment is appropriate when “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” RCFC
56(a).
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Case 1:24-vv-00196-MRS Document 33 Filed 10/09/24 Page 6 of 15
solely on the petitioner’s claims alone; rather, the petition must be supported by either medical
records or by the opinion of a competent physician. § 13(a)(1).
Moreover, § 11(c) and Vaccine Rule 2(c) set forth the requirements for which a petition
for compensation must include. A petition must set forth
(A) a short and plain statement of the grounds for an award of compensation,
including:
(i) the name of the individual to whom the vaccine was administered;
(ii) the date and place of the vaccination;
(iii) a specific description of the injury alleged; and
(iv) whether the injury claimed is contained within the Vaccine Injury Table .
. . and
(B) a specific demand for relief to which the petitioner asserts entitlement or a
statement that such demand will be deferred pursuant to [] § []11(e).
Vaccine Rule 2(c)(1)(A)-(B). Additionally, as required by § 11(c), the petition must be
accompanied by “a certified copy of all available medical records supporting the allegation in the
petition,” and if medical records are not submitted, the petitioner must include an affidavit
detailing the efforts made to obtain such records and the reasons for their unavailability.”
Vaccine Rule 2(c)(2)(A)-(B).
C. Jurisdiction
The United States Court of Federal Claims special masters shall “have jurisdiction over
proceedings to determine if a petitioner under [§] 300aa-11 of this title is entitled to
compensation under the Program and the amount of such compensation.” § 12(a). “The United
States Court of Federal Claims may issue and enforce such orders as the court deems necessary
to assure the prompt payment of any compensation awarded.” Id. “Special masters may not
entertain matters in which they lack jurisdiction, may not waive jurisdictional requirements, nor
may they apply discretion in allowing a petitioner to proceed in the Program.” Williams v. Sec’y
of Health & Hum. Servs., No. 20-367V, 2022 WL 3369717, at *3 (Fed. Cl. Spec. Mstr. July 20,
2022). “Only one petition may be filed with respect to each administration of a vaccine.” §
11(b)(2)
IV. DISCUSSION AND ANALYSIS
Petitioner, through his petition and additional filings, appears to raise several issues. The
undersigned addresses these issues below.
A. Petitioner’s Standard Form 95
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Petitioner filed “Standard Form 95,” as his petition. Standard Form 95 is a form used to
initiate an action under the Federal Tort Claims Act (“FTCA”).7 Petition at 3. Petitioner,
however, indicated that the appropriate “federal agency” to file his petition was the Court of
Federal Claims and the Chief Judge, and the honorable Elaine Kaplan, the Chief Judge of the
Court of Federal Claims. Id. at 2.
The Court of Federal Claims, however, is not the proper court in which to file an FTCA
action. Instead, a complaint filed pursuant to the FTCA must be filed in the Federal District
Court in the relevant jurisdiction. See 28 U.S.C.A. § 1346(b)(1) (stating the United States
District Courts have exclusive jurisdiction over FTCA claims); Henderson v. United States, 785
F.2d 121, 123 (4th Cir. 1986) (quoting 28 U.S.C.A. § 2675(a)) (a claimant “shall have first
presented the claim to the appropriate Federal agency” prior to filing action under the FTCA in
Federal District Court); 28 U.S.C.A. § 2401(b) (within six months of presenting the claim to the
agency or within six months of denial of the claim by the agency, a claimant may file an action
in Federal District Court). Thus, any claim asserting an FTCA claim must be dismissed for lack
of jurisdiction. See § 12(a) (Special masters in the Court of Federal Claims only “have
jurisdiction over proceedings to determine if a petitioner under [§] 11 of this title is entitled to
compensation under the Program and the amount of such compensation.”); Williams, 2022 WL
3369717, at *3 (“Special masters may not entertain matters in which they lack jurisdiction, may
not waive jurisdictional requirements, nor may they apply discretion in allowing a petitioner to
proceed in the Program.”).
The FTCA allows “civil actions on claims against the United States . . . for injury or loss
of property, or personal injury or death caused by the negligent or wrongful act or omission of
any employee of the Government while acting within the scope of his office or employment.” 28
U.S.C.A. § 1346(b)(1). “The Vaccine Act does not ‘fall within’ the FTCA. It is a separate no-
fault tort reform program in which ‘wrongfulness’ or negligence is irrelevant.” Krenik v. Sec’y
of Health & Hum. Servs., No. 03-2755V, 2014 WL 4387219, at *8 (Fed. Cl. Spec. Mstr. July 25,
2014). The Vaccine Act does not use the same standards as the FTCA. See, e.g., id. (“Claims
filed under the Vaccine Act are subject to its statute of limitations as set forth in § 16(a), not the
FTCA’s statute of limitations (28 U.S.C.A. § 2401(a)).”); Flannery v. Sec’y of Health & Hum.
Servs., No. 99-963V, 2003 WL 1699396, at *11 (Fed. Cl. Spec. Mstr. Mar. 14, 2003) (“Unlike
the [FTCA], . . . the Vaccine Act does not incorporate state standards.”).
Therefore, the undersigned finds that to the extent that Petitioner alleges a FTCA claim,
the claim must be dismissed in this Court, for lack of jurisdiction and for failure to state a claim
upon which relief can be granted.
7 “Under the FTCA, the federal government acts as a self-insurer, and recognizes liability for the
negligent or wrongful acts or omissions of its employees acting within the scope of their official
duties.” Federal Tort Claims Act, United States House of Representatives,
https://www.house.gov/doing-business-with-the-house/leases/federal-tort-claims-act (last visited
July 26, 2024). “The statute substitutes the United States as the defendant in such a suit and the
United States—not the individual employee—bears any resulting liability.” Id. The FTCA is
codified at 28 U.S.C.A. Chapter 171.
7

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B. Vaccine Act Claim Based on Date of Vaccination April 21, 2023
In his filing, Petitioner wrote the “National Vaccine Injury Compensation Program
(VICP) covers all seasonal influenza vaccines, including trivalent and quadrivalent influenza
vaccines.” Petition at 2. According to Petitioner he seeks compensation of $257,400.00,
pursuant to the Vaccine Program. Id. He further states that, “Due to mitigating factors and
errors, a flu vaccine vaccination and Pneumonia were improperly given at the same time and
date. I became sick pursuant to the Vaccine Program. I am still suffering side effects from the
injury.” Id. Petitioner identified April 21, 2023 as the “date and day of accident.” Id. However,
Petitioner has filed no evidence to show that a vaccine was administered to him on this date.
“Proof of vaccination is a fundamental threshold issue in all Vaccine Program cases.”
Capri v. Sec’y of Health & Hum. Servs., No. 22-1698V, 2024 WL 940524, at *14 (Fed. Cl.
Spec. Mstr. Feb. 9, 2024), appeal dismissed, No. 2024-1513, 2024 WL 3310816 (Fed. Cir. July
5, 2024). To be entitled to compensation under the Vaccine Act, a petitioner must demonstrate
that he received a vaccine set forth in the Vaccine Injury Table and that he experienced an injury
caused by that vaccine. See § 11(c). Absent evidence that a covered vaccine was administered,
a petitioner does not have a basis to proceed with his claim. See, e.g., Rich v. Sec’y of Health &
Hum. Servs., No. 12-742V, 2013 WL 4476751 (Fed. Cl. Spec. Mstr. July 26, 2013); § 11(c)(1)
(describing necessary contents for a petition, which include establishing proof of vaccination).
Vaccine Rule 2 states, in accordance with § 11(c), that a petition shall be accompanied by “all
available medical records supporting the allegations in the petition, including physician and
hospital records relating to: the vaccination itself.” Vaccine Rule 2(c)(2)(A)(i).
Within his initial filing, Petitioner did not state the place of vaccination, did not provide a
specific description of the injury, and did not set forth whether the claimed injury is contained
within the Vaccine Injury Table, pursuant to Vaccine Rule 2(c)(A)(ii)-(iv).
Additionally, Petitioner did not include the necessary documents as required under §
11(c) (requiring the petition to contain an affidavit and supporting documentation that the person
who suffered an injury received a vaccine listed on the Vaccine Injury Table including
“vaccination records associated with the vaccine allegedly causing the injury, pre- and post-
injury physician or clinic records” and “all post-injury inpatient and outpatient records” and if
any of the records are unavailable, an affidavit stating the reason for the unavailability). No
medical records were filed and there was no affidavit filed detailing the reason for the records’
unavailability. Therefore, there is no supporting evidence that a vaccine was administered or
evidence of a vaccine-related injury.
In the Court’s initial order, Petitioner was informed of the requirement to file medical
records in support of his claim.8 Order dated Feb. 22, 2024, at 2. In his first letter, dated
February 23, 2024, Petitioner quoted Vaccine Rule 2 stating that when commencing an action, a
petitioner must include “all available medical records supporting the allegations in the petition.”
8 The initial order also included information about scheduling an initial conference in which
medical records would be discussed; however, Petitioner waived all “conference hearings”.
Appendix G; see Order dated Feb. 22, 2024, at 1.
8

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ECF No. 8 at 5. In Petitioner’s motion for objection, dated February 27, 2024, Petitioner alleged
he provided over 25 years of medical records; however, no such records were filed. ECF No. 10
at 9. In Petitioner’s March 17, 2024 email, he wrote “[t]he court has all supporting documents so
what is the purpose of any conference at a waste of tax payers and out money?” Appendix B at
1.
When a petitioner fails to comply with court orders to prosecute his case, the court may
dismiss the case. Sapharas v. Sec’y of Health & Hum. Servs., 35 Fed. Cl. 503 (1996); Tsekouras
v. Sec’y of Health & Hum. Servs., 26 Cl. Ct. 439 (1992), aff’d, 991 F.2d 819 (Fed. Cir. 1993);
Vaccine Rule 21(c); see also Adkins v. United States, 816 F.2d 1580, 1583 (Fed. Cir. 1987)
(affirming dismissal of cases for failure of party to respond to discovery requests); Henderson v.
Sec’y of Health & Hum. Servs., No. 21-857V, 2023 WL 2748959, at *3 (Fed. Cl. Spec. Mstr.
Apr. 3, 2023) (dismissing the petition for failure to file evidence of vaccination); Jahn v. Sec’y of
Health & Hum. Servs., No. 21-1846V, 2022 WL 17959446, at *2-3 (Fed. Cl. Spec. Mstr. Dec.
27, 2022) (same).
Here, Petitioner has failed to comply with orders to produce supportive records. He has
failed to file a single record to show that he received flu and pneumonia vaccinations on April
21, 2023. He also failed to file records to show that he sustained any alleged vaccine-related
injury. Without evidence of vaccination or injury, the undersigned finds that the record does not
support a claim under the Vaccine Act, or otherwise demonstrate that Petitioner sustained any
vaccine injury. Moreover, Petitioner’s failure to provide supporting evidence of a vaccine injury
and failure to participate in any conferences indicates a disinterest in pursing his claim.
Petitioner has failed to provide support for the basic elements of a Vaccine Act claim.
Therefore, the undersigned finds that the petition must be dismissed for failure to prosecute,
insufficient evidence, and failure to state a claim upon which relief can be granted.
C. Reopening 2017 Claim
Petitioner’s first letter, dated February 20, 2024, stated “We aren’t requesting a new case
at an expense to us and taxpayers. . . . We have wasted enough time and money on a clear and
compelling [p]etition.” ECF No. 8 at 1. Petitioner stated the “[i]ssues for [r]eview” are whether
the prior case is in default and whether prior judges, the undersigned, and clerks overlooked and
violated procedural items and rules. Id. at 2, 4-5. Petitioner argues he is entitled to
compensation from his prior case and that the court “erroneously denied the claim.” Id. at 2.
Petitioner’s prior case, filed on July 3, 2017 (17-900V), was dismissed by the
undersigned on November 29, 2018 for failure to prosecute, after determining that Petitioner had
failed to establish that his injury had persisted for at least six months, or that Petitioner had
satisfied the causation requirements set forth in Althen. Byrd, 2018 WL 6918820, at *2.
On December 20, 2018, Petitioner filed a motion for review of the undersigned’s decision
of his prior case (17-900V). The Court of Federal Claims denied Petitioner’s motion for review.
Byrd, 142 Fed. Cl. at 81, 87. The Court addressed Petitioner’s concerns regarding the
substantive and procedural reasons for the dismissal and affirmed the undersigned’s decision. Id.
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Case 1:24-vv-00196-MRS Document 33 Filed 10/09/24 Page 10 of 15
at 84-87. Petitioner then appealed his case to the Federal Circuit Court of Appeals, who also
affirmed the undersigned’s decision. Byrd, 778 F. App’x at 924. The Federal Circuit found the
undersigned applied the correct procedural standards and law and found Petitioner’s arguments
on appeal were without merit. See id. at 927-28. Thus, these issues have been addressed by both
the Court of Federal Claims and the Federal Circuit and Petitioner’s case was closed in 2019.
Special masters “have jurisdiction over proceedings to determine if a petitioner under [§]
11 of this title is entitled to compensation under the Program and the amount of such
compensation.” § 12(a). The undersigned previously determined Petitioner was not entitled to
compensation in his prior case and that decision was affirmed by the Court of Federal Claims
and the Federal Circuit Court of Appeals. The undersigned does not have authority to review
decisions by those higher courts.
In his letter dated March 18, 2024, Petitioner asks “Why is Federal Claims Court []
attempting to restart case No. 17-900V.” Appendix C at 1. Petitioner asserts that his prior case
(17-900V) is in default, and demands compensation based on the petition filed in 2017. Id. As
stated, Petitioner appears to be asking the undersigned to reopen his 2017 case. In his motion to
dismiss, Respondent opines “Petitioner’s 2024 claim may be construed as an attempt to reopen
his 2017 claim or to seek reconsideration of its dismissal.” Resp. Mot. at 3.
Under Vaccine Rule 36, a party may seek relief from judgment pursuant to Rule 60 of the
RCFC. Rule 60(b) provides an “‘exception to finality,’ that ‘allows a party to seek relief from a
final judgment, and request reopening of his case, under a limited set of circumstances.’”
Kennedy v. Sec’y of Health & Hum. Servs., 99 Fed. Cl. 535, 548 (2011) (quoting Gonzales v.
Crosby, 545 U.S. 524, 529 (2005)). The court may grant relief from a final judgment on the
following grounds:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence . . . ;
(3) fraud . . . misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on an
earlier judgment that has been reversed or vacated; or applying it prospectively is
no longer equitable;
(6) any other reason that justifies relief.
RCFC 60(b).
A motion under RCFC 60(b) must be made “within a reasonable time—and for reasons
(1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the
proceeding.” RCFC 60(c)(1). A motion based on a ground enumerated in clauses (1)-(3) is
completely barred if not made within the requisite one-year time period. See Freeman v. Sec’y
of Health & Hum. Servs., 35 Fed. Cl. 280, 283 (Fed. Cl. 1996).
Respondent identifies several issues with Petitioner attempting to reopen his 2017 case.
Resp. Mot. at 3-8. First, Respondent opines Petitioner has not pursued a proper relief from
10

Case 1:24-vv-00196-MRS Document 33 Filed 10/09/24 Page 11 of 15
judgment pursuant to RCFC 60(b).9 Id. at 4. “In cases not previously reviewed by a judge of the
Court of Federal Claims (not applicable here), Vaccine Rule 36(a)(2) authorizes a special master
to consider in the first instance, a motion seeking relief from judgment under RCFC 60.” Id.
Motions seeking such relief under Rule 60(b) must be filed within a reasonable time or within
one year from the date of the judgment at issue. Id. at 5 n.1; RCFC 60(c). “Because the mandate
from the Court of Appeals dismissing the case entered on September 3, 2019, and this new cause
of action was not filed until February 5, 2024 (more than four years later), [P]etitioner may not
rely on RCFC 60(b)(1), (2), or (3).” Resp. Mot. at 5 n.1. Respondent also argues Petitioner has
not made a showing that exceptional or extraordinary circumstances exist here for relief from
judgment under Rule 60(b) as required. Id. at 5-6 (citing Matos v. Sec’y of Health & Hum.
Servs., 30 Fed. Cl. 223, 225 (1993); Louisville Bedding Co. v. Pillowtex Corp., 455 F.3d 1377,
1380 (Fed. Cir. 2006)).
For support, Respondent cites a Vaccine Act case in which relief from judgment was
denied when the petitioner’s only stated objection to the judgment merely “reiterate[d]
arguments already rejected by both courts or variations on them that he could have raised
earlier.” Webb v. Sec’y of Health & Hum. Servs., No. 15-803V, 2023 WL 4287500, at *2 (Fed.
Cl. Spec. Mstr. June 8, 2023), reconsideration den’d, No. 15-803V, 2023 WL 5321089 (Fed. Cl.
Spec. Mstr. July 25, 2023), adhered to sub nom. Webb v. United States, No. 15-803V, 2023 WL
7638911 (Fed. Cl. Oct. 17, 2023). As explained, Rule 60 “is not a mechanism for unsuccessful
litigants to re-litigate their respective cases,” emphasizing that “[t]his is particularly so once a
decision has been appealed and affirmed.” Id.
Second, Respondent argues that while a petitioner may move for reconsideration under
Vaccine Rule 36 (pursuant to RCFC 59),10 such motion must be made within 28 days of
judgment. Id. (citing RCFC 59(b)(1)). A motion for reconsideration under RCFC 59 may be
granted
(A) for any reason for which a new trial has heretofore been granted in an action
at law in federal court;
(B) for any reason for which a rehearing has heretofore been granted in a suit in
equity in federal court; or
(C) upon the showing of satisfactory evidence, cumulative or otherwise, that any
fraud, wrong, or injustice has been done to the United States.
RCFC 59 (a)(1)(A).
9 Petitioner did not specifically seek relief from judgment under this rule.
10 Petitioner did not specifically seek a motion for reconsideration under this rule.
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Case 1:24-vv-00196-MRS Document 33 Filed 10/09/24 Page 12 of 15
Petitioner’s response to Respondent’s motion to dismiss did not discuss any of the issues
raised by Respondent. Instead, Petitioner filed a motion for sanctions, a motion for objection,
and a motion for default.11
Petitioner seeks to reopen his prior case more than four years after judgment entered.
This effort is time barred under both RCFC 59 and 60. Moreover, Petitioner has not presented
evidence entitling him relief to judgment or for reconsideration. Therefore, the undersigned
denies Petitioner’s request to reopen his 2017 case.
D. Motion for Default
The Vaccine Rules do not specifically include a mechanism for a motion for default.
However, Vaccine Rule 1 provides that for any matter not specifically addressed by the Vaccine
Rules, the special master may regulate applicable practice consistent with the rules and the
purpose of the Vaccine Act. Vaccine Rule 1(b). Vaccine Rule 1 also provides that the RCFC
may apply to the extent they are consistent with the Vaccine Rules. Vaccine Rule 1(c).
RCFC 55 governs default and default judgment. “When a party against whom judgment
for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown
by affidavit or otherwise, the clerk must enter the party’s default.” RCFC 55(a). A default
judgment may be entered by the court “only if the claimant establishes a claim or right to relief
by evidence that satisfies the court.” RCFC 55(b)(2).
Petitioner raises the issue of default in several contexts. First, Petitioner argues he filed a
“Findings and Objection” motion on June 10, 2024, and Respondent was required to respond by
June 24, 2024, but failed to timely respond. ECF No. 19 at 1. Regarding this allegation, the
undersigned finds Respondent did not fail to plead or otherwise defend. While Petitioner filed a
motion for objection on June 10, it was filed in response to Respondent’s motion to dismiss filed
on June 7. See ECF No. 18 (Petitioner’s motion for objection stating it is Petitioner’s objection
to Respondent’s June 7, 2024 motion to dismiss). A reply is not required following a response.
Vaccine Rule 20(b)(2) (stating a reply to a response or an objection may be filed as opposed to
shall be filed). Moreover, a response is not required to an objection. See id.
Second, Petitioner argues that since Respondent’s motion to dismiss was not made within
21 days of the complaint, Petitioner is entitled to default judgment. ECF No. 18 at 3. There is
no provision in the Vaccine Act or the Vaccine Rules that require a respondent to file a motion to
dismiss within 21 days of the filing of a petition. Further, in the Vaccine Program, motions to
dismiss are entertained throughout the course of litigation. See, e.g., Bakeman, 2020 WL
1486836; Dean, 2018 WL 3104388; Muller, 2017 WL 2333637. Moreover, Respondent filed the
motion to dismiss pursuant to the undersigned’s order to file a motion to dismiss, responsive
11 Respondent indicated he construes these as a response to his motion to dismiss. Resp.
Response at 1. Respondent stated “Petitioner has not advanced any new legal arguments or
supplied any evidence providing any basis for reviving his previously adjudicated 2017 claim.”
Id. Therefore, Respondent maintained the matter is ripe for adjudication and should be
dismissed. Id.
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Case 1:24-vv-00196-MRS Document 33 Filed 10/09/24 Page 13 of 15
pleading, or Rule 4(c) report. Accordingly, the undersigned does not find Petitioner’s argument
persuasive as a basis for granting default judgment.
In response to other statements that appear to seek default judgment, the undersigned
finds Petitioner has not established a claim or right to relief by satisfactory evidence. And there
is no judgment awarding compensation to the Petitioner which is in default. For these reasons,
the undersigned denies Petitioner’s motion for default.
E. Motion for Recusal
Recusal is required “in any proceeding in which [the judge’s or special master’s]
impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). This is an objective test,
which mandates recusal “when a reasonable person, knowing all the facts, would question the
judge’s impartiality.” Allphin v. United States, 758 F.3d 1336, 1344 (Fed. Cir. 2014) (quoting
Hewlett-Packard Co. v. Bausch & Lomb, Inc., 882 F.2d 1556, 1568 (Fed. Cir. 1989)).
In his motion for recusal, Petitioner wrote that the “perjurious actions of the Special
Master have been costly and reprehensible. . . . The matter is undeniable, the Petitioner suffered
an injury. Compensations are due without further delay.” ECF No. 9 at 9. More specifically,
Petitioner wrote,
Special Master Dorsey has patently shown partiality and the willingness to
commit perjury. The prior cases are in Default and the Special Master has
misconstrued the Vaccine Rules. We are stating, the special master is a deterrent
to the rendering of the expeditious rendering of justice, our Constitutional Rights
to the access of an impartial court and clearly does not know the meaning of 1.)
all available medical records and 2.) the word OR!
Id. at 2 (emphasis omitted). This statement along with others appear to raise issues from
Petitioner’s prior case (17-900V). See id. at 2-9.
The issue of recusal from Petitioner’s prior case was discussed by the Court of Federal
Claims in its February 2019 opinion. The Court found Petitioner failed to provide evidence to
support his position. Byrd, 142 Fed. Cl. at 86. And “[d]isagreement with the special masters’
interpretation and application of legal standards or case management orders provides no grounds
for recusal.” Id.
Here, Petitioner did not provide evidence that calls into question the undersigned’s
impartiality. Therefore, Petitioner’s motion for recusal is denied.
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Case 1:24-vv-00196-MRS Document 33 Filed 10/09/24 Page 14 of 15
F. Judicial Complaint
In Petitioner’s filing dated March 28, 2024, Petitioner addresses the Judicial Conduct and
Disability Act.12 Appendix E at 1 (citing 28 U.S.C. §§ 351-64). Petitioner requests to “please
accept this judicial complaint against Chief Judge Kaplan for condoning the fraud and perjury”
under the Judicial Conduct and Disability Act. Id. Petitioner again restates concerns about his
prior case. See id. at 1-7; see also § 12(a) (Special masters in the Court of Federal Claims only
“have jurisdiction over proceedings to determine if a petitioner under [§] 11 of this title is
entitled to compensation under the Program and the amount of such compensation.”). The
undersigned lacks jurisdiction over a complaint brought under the Judicial Conduct and
Disability Act. Accordingly, Petitioner’s March 28, 2024 filing related to a judicial complaint
must be dismissed.
G. Motions for Objection, Sanctions, and Production of Documents
On February 27, 2024, Petitioner filed a “Motion for Objection R. 46 and Findings and
Conclusions, R. 52 to the Alleged New Case Relevance,” in which Petitioner stated, “We are
petitioning the court and Respondents to address, [w]hy are not case No. 17-900V before the
Federal Claims Court and [that same case] before the United States Court of Appeals for the
Federal Circuit in Default.” ECF No. 10 at 2.13 Petitioner appears to assert that his case is in
default. However, Petitioner’s case No. 17-900V was not and is not in default. Thus, any such
allegations are without merit.
Petitioner also “strenuously [o]bjects to the felonious attempts of extortion, any filing
fees, and this current proceeding in particular under the supervision of Special Master Dorsey.”
ECF No. 10 at 2. Petitioner further alleges there were ex parte communications between the
Court and Respondent in this case. Id. Petitioner also alleges perjury, fraud, and bribery.
However, Petitioner has offered no proof of felonious activity, extortion, ex parte
communications, or evidence of perjury, fraud, or bribery. See generally id.
Petitioner also appears to take issue with Respondent-Appellee’s brief for the Court of
Appeals allegedly being tardy in the 2017 case. ECF No. 10 at 3-4. The filing of these briefs
was over five years ago in 2019. See id. Petitioner acknowledges his 2017 case was dismissed
in 2019. Id. at 5. Nonetheless, Petitioner alleges “ex parte communications due to the fact that
we didn’t receive Respondent-Appellee’s initial [i]nformal [b]rief.” Id. at 4. Petitioner also
12 The Judicial Conduct and Disability Act “establishes a process by which any person can file a
complaint alleging a federal judge has engaged in ‘conduct prejudicial to the effective and
expeditious administration of the business of the courts’ or has become, by reason of a mental or
physical disability, ‘unable to discharge all the duties’ of the judicial office.” Judicial Conduct &
Disability, United States Courts, https://www.uscourts.gov/judges-judgeships/judicial-conduct-
disability (last visited Aug. 1, 2024).
13 In this motion, Petitioner noted the vaccine complaint was filed on July 3, 2017, and that
compensation is due from that case. ECF No. 10 at 1, 10. This further evidences Petitioner’s
attempt to relitigate his previously dismissed case.
14

Case 1:24-vv-00196-MRS Document 33 Filed 10/09/24 Page 15 of 15
argues that the judgment in his prior 2017 case “failed to address the February 7, 2019 [o]pinions
and [o]rder that was under appeal.” Id. at 5. Petitioner’s 2017 case has been closed since 2019
and, as stated above, the undersigned does not have authority to review issues governed by the
higher courts.
On June 10, 2024, Petitioner filed a motion for sanctions. ECF No. 17. Petitioner states
he submits the motion for sanctions pursuant to Federal Rule of Civil Procedure 11 against Chief
Judge Elaine Kaplan, Heather Pearlman, and the undersigned. Id. at 1. His reasons for the
motion are 1) the prior original case has been and is in default, 2) the court is aware of such, 3)
there are pending motions before this Court, and 4) the Vaccine Program covers all seasonal flu
vaccines. Id. at 1-2. The undersigned finds that these allegations and the motion for sanctions
unwarranted. Petitioner’s prior case is not in default, the pending motions are adjudicated
herein, and therefore there is no basis for awarding sanctions.
Lastly, on August 7, 2024, Petitioner filed a motion for production of documents. ECF
No. 23. Petitioner states “[t]his is a follow-up to a request for the Office of Disciplinary for DOJ
attorneys or agency that regulates federal attorneys.” Id. at 1. Petitioner lists the motions he has
filed in this 2024 case and states they are outstanding and response times set by the rules have
passed. Id. at 2. He adds, “In the interest of justice what is going on? Needlessly, I have wasted
so much money and time on a legal and valid complaint pursuant to” the Vaccine Act. Id.
Petitioner does not specifically ask for any documents to be produced. The undersigned does not
have jurisdiction to adjudicate proceedings under any agency that regulates federal attorneys, and
therefore, relief cannot be granted under this motion.
V. CONCLUSION
For the reasons discussed above, Respondent’s motion to dismiss is GRANTED and the
petition is DISMISSED. Further, the petition is DISMISSED for failure to prosecute.
Additionally, Petitioner’s pending motions are DENIED. In the absence of a timely filed motion
for review filed pursuant to Vaccine Rule 23, the clerk is directed to enter judgment consistent
with this Decision.
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Special Master
15

================================================================================
DOCUMENT 2: USCOURTS-cofc-1_24-vv-00196-1
Date issued/filed: 2025-03-14
Pages: 11
Docket text: JUDGE VACCINE REPORTED OPINION (PUBLIC VERSION) (originally filed 02/26/2025) denying 35 motion for review. Signed by Judge Molly R. Silfen. (ck) Service on parties made. Document Emailed to Petitioner by Clerk (tjk).
--------------------------------------------------------------------------------
Case 1:24-vv-00196-MRS Document 39 Filed 03/14/25 Page 1 of 11
In the United States Court of Federal Claims
HOUSTON BYRD, JR.,
Plaintiff,
v. No. 24-196V
(Filed March 14, 2025)
SECRETARY OF HEALTH AND HUMAN
SERVICES,
Defendant.
Houston Byrd, Jr., Newark, Ohio, pro se.
Mallori B. Openchowski, Civil Division, United States Department of Justice, Washington, DC,
for defendant.
OPINION AND ORDER
Denying Mr. Byrd’s Motion for Review
SILFEN, Judge.
Houston Byrd, Jr., proceeding without an attorney, filed a petition under the National
Childhood Vaccine Injury Act of 1986 (Vaccine Act) seeking compensation for injuries that he
alleges resulted from receiving a flu vaccine and pneumonia vaccine at the same time.1 ECF No.
1 at 2. The special master determined that Mr. Byrd’s petition was an attempt to relitigate his
previously dismissed 2017 Vaccine Act claim. ECF No. 26 at 9-12. The special master dismissed
Mr. Byrd’s case, explaining that, in addition to having already litigated his claim to a final decision
(id. at 11), Mr. Byrd’s claim was barred by the statute of limitations (id. at 8-9, 12). The special
1 This opinion was originally issued under seal. The parties had no proposed redactions. The court
reissues this opinion publicly.
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Case 1:24-vv-00196-MRS Document 39 Filed 03/14/25 Page 2 of 11
master also explained that Mr. Byrd had not provided the required supporting information showing
that he received a covered vaccine or sustained any vaccine-related injury, which also precluded
any relief under the vaccine program. Id. at 8-9.
Mr. Byrd seeks review of that dismissal, arguing that the special master abused her discre-
tion. The special master correctly determined that Mr. Byrd already fully litigated his Vaccine Act
claim in 2017 and did not abuse her discretion in dismissing Mr. Byrd’s complaint. This court
therefore denies Mr. Byrd’s motion for review and affirms the special master’s decision.
I. Background
In October 2015, Mr. Byrd received flu and pneumonia vaccinations.2 Byrd v. Secretary of
Health and Human Services, No. 17-900V, 2018 WL 6918820, at *1 (Fed. Cl. Nov. 29, 2018).
Mr. Byrd alleges that he then began to suffer from persistent headaches, stomachaches, elevated
blood-sugar levels, and weight loss. Id. Mr. Byrd filed a Vaccine Act claim in 2017 alleging that
the two vaccines caused his injuries. Id. The special master dismissed his claim for failure to pros-
ecute because he did not submit the required documents with his petition. Id. at 2. Mr. Byrd sought
reconsideration, and the special master denied his motion for reconsideration. Byrd v. Secretary of
Health and Human Services, No. 17-900V, 2019 WL 1024996 (Fed. Cl. Feb. 7, 2019). He also
filed a motion for review of the special master’s initial decision, and this court affirmed the special
master’s decision. Byrd v. Secretary of Health and Human Services, 142 Fed. Cl. 79 (2019). He
then appealed, and in September 2019, the Federal Circuit affirmed. Byrd v. Secretary of Health
and Human Services, 778 F. App’x 924, 927 (Fed. Cir. 2019).
2 Mr. Byrd’s petition, ECF No. 1, does not include any details about the date and place of the
vaccinations or a description of any injury. See ECF No. 1. Instead, Mr. Byrd’s filings in this case
reference an earlier case he filed in 2017. ECF No. 8.
2

Case 1:24-vv-00196-MRS Document 39 Filed 03/14/25 Page 3 of 11
In February 2024, Mr. Byrd filed a petition alleging a vaccine injury in April 2023 stem-
ming from the improper administration of a flu vaccine and a pneumonia vaccine. ECF No. 1. In
Mr. Byrd’s later filings, he explained that he is not alleging a new injury but is seeking compen-
sation for his claim from 2017, believing that the earlier case is in “default,” entitling him to com-
pensation. See ECF No. 8 at 1 (“We aren’t requesting a new case”); ECF No. 9 at 1 (“The vaccine
complaint was submitted on June 20, 2017, and filed July 3, 2017”); ECF No. 13-3 at 1 (“Case
No. 17-900V is in Default and will always be in default.”).
The government moved to dismiss the petition. ECF. No. 16. The special master granted
the government’s motion and dismissed the petition. ECF No. 26. The special master explained
that Mr. Byrd had failed to prosecute his new case and had not provided any reason to reopen his
2017 case. Id. Mr. Byrd now seeks review of the special master’s decision dismissing his 2024
case.
II. Discussion
This court has jurisdiction to review a special master’s decision under the Vaccine Act.
42 U.S.C. § 300aa-12(e). On a motion for review, this court may uphold the special master’s find-
ings of fact and conclusions of law, set them aside, or remand to the special master for further
action. 42 U.S.C. § 300aa-12(e)(2); accord Rules of the Court of Federal Claims, Appendix B,
Rule 27 (“Vaccine Rule 27”).
This court reviews the decision of a special master to determine whether it is arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law. 42 U.S.C. § 300aa-
12(e)(2)(B); Masias v. Secretary of Health and Human Services, 634 F.3d 1283, 1287 (Fed. Cir.
2011); accord Vaccine Rule 27. That standard is “well understood to be the most deferential pos-
sible.” Munn v. Secretary of Health and Human Services, 970 F.2d 863, 870 (Fed. Cir. 1992).
3

Case 1:24-vv-00196-MRS Document 39 Filed 03/14/25 Page 4 of 11
This court reviews the special master’s findings of fact to determine whether they are ar-
bitrary or capricious. Hodges v. Secretary of Health and Human Services, 9 F.3d 958, 961 (Fed.
Cir. 1993). “If the special master has considered the relevant evidence of record, drawn plausible
inferences and articulated a rational basis for the decision, reversible error will be extremely diffi-
cult to demonstrate.” Hines v. Secretary of Health and Human Services, 940 F.2d 1518, 1528 (Fed.
Cir. 1991). The court, like the Federal Circuit, does “not reweigh the factual evidence, assess
whether the special master correctly evaluated the evidence, or examine the probative value of the
evidence or the credibility of the witnesses—these are all matters within the purview of the fact
finder.” Porter v. Secretary of Health and Human Services, 663 F.3d 1242, 1249 (Fed. Cir. 2011);
see Munn, 970 F.2d at 871-72 (explaining that the Federal Circuit and this court apply the same
standard).
For questions of law, including whether a claim is barred by a statute of limitations or
barred by claim preclusion, this court reviews the special master’s legal conclusions de novo.
Avera v. Secretary of Health and Human Services, 515 F.3d 1343, 1347 (Fed. Cir. 2008); Cloer v.
Secretary of Health and Human Services, 654 F.3d 1322, 1330 (Fed. Cir. 2011) (en banc) (stating
that the Federal Circuit and Court of Federal Claims review de novo what event triggers the run-
ning of the Vaccine Act’s statute of limitations); Phillips / May Corp. v. United States, 524 F.3d
1264, 1267 (Fed. Cir. 2008) (explaining that the application of res judicata, including claim pre-
clusion, is reviewed without deference).
A. To the extent that this is a case alleging a new vaccine administration, the spe-
cial master reasonably dismissed for failure to prosecute
A Vaccine Act petition “must include a certified copy of all available medical records sup-
porting the allegations in the petition, including physician and hospital records relating to: (i) the
vaccination itself; [and] (ii) the injury.” Vaccine Rule 2(c)(2)(A). Alternatively, “if the required
4

Case 1:24-vv-00196-MRS Document 39 Filed 03/14/25 Page 5 of 11
medical records are not submitted, the petitioner must include an affidavit detailing the efforts
made to obtain such records and the reasons for their unavailability.” Vaccine Rule 2(c)(2)(B)(i).
If a petitioner fails to “prosecute or comply with these rules or any order of the special master or
the court,” a special master “may dismiss a petition or any claim therein.” Vaccine Rule 21(c).
The special master reasonably determined that, to the extent that Mr. Byrd is alleging an
injury from a 2023 vaccination, he did not provide any evidence to support his allegations. ECF
No. 26 at 8-9. The special master explained that the petition did not meet the basic requirements
of the Vaccine Act, as it did not include an affidavit, any vaccination records, or any other sup-
porting evidence of a vaccine-related injury. Id. The special master notified Mr. Byrd that the
Vaccine Act required him to file medical records to support his claim (ECF No. 7 at 2 [¶3(b)]), but
he still did not submit any supporting documents. He also failed to participate in conferences with
the court. ECF No. 13. Mr. Byrd’s motion for review does not point to any evidence in the record
that the special master ignored and does not rebut any of her conclusions. ECF No. 35. Thus, the
special master reasonably found that the record did not support a new claim under the Vaccine
Act. ECF No. 26 at 8-9. The special master did not abuse her discretion in dismissing Mr. Byrd’s
case for failure to prosecute, for insufficient evidence, and for failure to state a claim upon which
relief can be granted.
B. To the extent that Mr. Byrd seeks relief from the judgment on his 2017 peti-
tion, that judgment is unreviewable
To the extent that Mr. Byrd is re-raising his 2017 Vaccine Act claim, claim preclusion bars
his attempt to relitigate that claim. A final judgment on a claim extinguishes “all rights of the
plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series
of connected transactions, out of which the action arose.” Hornback v. United States, 405 F.3d
999, 1001 (Fed. Cir. 2005) (marks and citation omitted). The special master dismissed Mr. Byrd’s
5

Case 1:24-vv-00196-MRS Document 39 Filed 03/14/25 Page 6 of 11
2017 claim for insufficient proof and for failure to prosecute after he did not file the documentation
required by the Vaccine Act. Byrd, 2018 WL 6918820 at *2. Mr. Byrd fully litigated his claim,
receiving decisions from the special master, this court, and the Federal Circuit, and is precluded
from litigating the same claim again. Hornback, 405 F.3d at 1001; see Brewer v. United States,
150 Fed. Cl. 248, 249 (2020) (holding that, “unless the dismissal order states otherwise, dismissal
pursuant to [this court’s rule] 41(b) for failure to prosecute operates as an adjudication on the
merits” (cleaned up)).
In her 2024 opinion, the special master correctly held that the Rules of the Court of Federal
Claims (“RCFC”) do not separately give Mr. Byrd an avenue to reopen his earlier case.
Under Vaccine Rule 36, a party may seek relief from judgment using RCFC 59 or 60. Both
rule 59 and rule 60 motions “must be supported by a showing of extraordinary circumstances
which justify relief.” Caldwell v. United States, 391 F.3d 1226, 1228 (Fed. Cir. 2004) (quotation
marks omitted). “Reconsideration, however, is not intended to allow a party to reassert arguments
that the court already has considered,” and “a motion for reconsideration is not to be used by a
dissatisfied party to relitigate the case.” Nyan v. United States, 154 Fed. Cl. 463, 464 (2021) (cita-
tions and quotation marks omitted).
Under RCFC 59, the court may grant a new trial or motion for reconsideration and may
reopen a case for additional proceedings. In this case, RCFC 59 required action within 28 days of
the judgment. RCFC 59(b)(1).
Under RCFC 60, the court may correct or relieve a party from a final judgment, order, or
proceeding. “The United States Supreme Court, however, has caution[ed] that [the Rule] should
only be applied in extraordinary circumstances.” Perry v. United States, 558 F. App’x 1004, 1006
(Fed. Cir. 2014) (cleaned up). Mr. Byrd makes no motion under RCFC 60, and no facts or
6

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allegations raised in his complaint suggest that his case qualifies for consideration under RCFC
60. A party seeking relief under RCFC 60(b)(1), (2), or (3) must file a motion within one year from
the date of judgment. A party seeking relief under RCFC 60(b)(4), (5), or (6) must file a motion
within a “reasonable time.” RCFC 60(c)(1).
The court entered final judgment in Mr. Byrd’s 2017 case in 2019. ECF No. 26 at 2 n.3.
Mr. Byrd filed this case more than four years later, in February 2024. ECF No. 26 at 11; ECF No.
1. The court has routinely found shorter delays to be unreasonable when a litigant fails to “explain[]
or support[] such a delay” and “merely rehashes clearly meritless arguments that the court of ap-
peals has already rejected.” Hill v. United States, 146 Fed. Cl. 523, 525 (2018) (holding an eight-
month delay to be unreasonable); see Rogero v. Secretary of Health and Human Services, 143 Fed.
Cl. 21, 26 (2019) (holding a thirteen-month delay to be unreasonable). Mr. Byrd has not given any
reason for his four-year delay. Mr. Byrd’s motion is neither timely under any provision that names
a specific deadline nor filed within a “reasonable time” under the other provisions. Mr. Byrd did
not file a formal motion under either RCFC 59 or 60 in this case, and even if the court viewed Mr.
Byrd’s new suit as a motion for reconsideration, Mr. Byrd fails to show the extraordinary circum-
stances necessary to justify relief.
C. Mr. Byrd’s motion for review in this court is untimely
Even if this court could address the merits of Mr. Byrd’s allegations, he was untimely in
filing his motion in this court after the special master’s 2024 decision. A motion for review of a
special master’s decision must be filed within 30 days of the decision. 42 U.S.C. § 300aa-12(e)(1);
see also Vaccine Rule 23 (“No extensions of time will be permitted under this rule and the failure
of a party to file a motion for review in a timely manner will constitute a waiver of the right to
obtain review”). When the special master’s decision is served by mail, as in this case, three addi-
tional days are added to the 30-day period. Vaccine Rule 19(c).
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The special master’s decision was issued on August 23, 2024.3 ECF No. 26. Because the
decision was served by mail, Mr. Byrd’s deadline to file a motion for review was September 25.
Mr. Byrd filed a notice of appeal on October 2, which was directed to the Federal Circuit. ECF
No. 32. The special master rejected that filing as improperly filed in the wrong court (id.), but the
filing also skipped the required step of seeking review in this court before appealing to the Federal
Circuit. Mr. Byrd then filed a motion for this court’s review on October 10. ECF No. 35. Because
the limitation period expired on September 25, the documents on October 2 and October 10 were
both untimely.
The Federal Circuit has previously held that the 30-day period to file a motion for review
of a special master’s decision is jurisdictional. Widdoss v. Secretary of Health and Human Ser-
vices, 989 F.2d 1170, 1176-77 (Fed. Cir. 1993). Since Widdoss, the Supreme Court has distin-
guished “between jurisdictional prescriptions and nonjurisdictional claim-processing rules, which
seek to promote the orderly progress of litigation by requiring that the parties take certain proce-
dural steps at certain specified times.” Fort Bend County, Texas v. Davis, 587 U.S. 541, 548-49
(2019) (citation omitted). The Federal Circuit has declined to decide whether the motion-for-
3 Mr. Byrd may be arguing that he did not receive the special master’s decision, stating that he did
not receive “the required Electronic Mailing to the Appeals Court.” ECF No. 35 at 1. Mr. Byrd, as
a pro se party, does not necessarily receive electronic filings; the court mails orders to him by
certified mail. See Vaccine Rule 2(b)(2); ECF No. 2. According to the Postal Service, Mr. Byrd
received the decision on September 3, 2024. See ECF No. 26 (docket entry listing certified mail
tracking number, checked at usps.gov). The docket also notes that the court emailed the decision
to Mr. Byrd. Id.
The court issued another order on October 3 entering judgment in the case. ECF No. 31. Under the
court’s rules, Mr. Byrd’s deadline was calculated from the date of the special master’s decision,
not the date of the judgment. The later judgment issued by the clerk of the court reflects the court’s
determination that his time to seek review has passed. See Vaccine Rule 11(a) (“If a motion for
review under Vaccine Rule 23 is not filed within 30 days after … the filing of the special master’s
decision … the clerk will enter judgment immediately.”).
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review deadline in Vaccine Act cases is jurisdictional in light of that precedent. Ling v. Secretary
of Health and Human Services, No. 2023-1072, 2023 WL 8447276, at *3 (Fed. Cir. Dec. 6, 2023).
While the 30-day deadline appears to be nonjurisdictional, given that the filing is a motion for
review within the same court—the Court of Federal Claims—rather than an appeal to a separate
court of appeals, the court need not determine whether the 30-day limitation period is jurisdic-
tional. Mr. Byrd does not present any argument for tolling the deadline, and the court’s rules do
not allow extensions. Vaccine Rule 23.4 And even if Mr. Byrd could present a case for tolling the
deadline, as discussed above, the special master’s decision was not arbitrary or capricious.
D. Mr. Byrd’s remaining arguments do not show that the special master’s deci-
sion was arbitrary or capricious
Mr. Byrd’s motion for review raises other objections to the special master’s decision. None
of his objections demonstrate that the special master’s decision was arbitrary or capricious, an
abuse of discretion, or otherwise not in accordance with law.
Mr. Byrd alleges systemic fraud, waste, abuse, and perjury by the special master. ECF No.
35 at 2-4. A motion for review is designed to address whether the special master’s decision was
legally sound. As already discussed, nothing about Mr. Byrd’s petition shows any legal error in
the special master’s decision. And even if Mr. Byrd had raised valid allegations about the special
master’s conduct in the 2017 case, the court would not have the authority to reopen that case absent
a showing that he did not know and could not have known about his allegations earlier. See
4 It also appears that Mr. Byrd never paid the filing fee or filed an application to proceed in forma
pauperis in this case. ECF No. 5. As the court’s order explained to Mr. Byrd, it “may dismiss the
petition” on that basis. Id.; see Bryant v. United States, 618 F. App’x 683, 686 (Fed. Cir. 2015)
(“If a party fails to pay the requisite filing fee, despite adequate notice and ample opportunity to
do so, the Claims Court acts within its discretion when it dismisses the action.”). That would be
an independent reason not to proceed with this case, as Mr. Byrd has not paid the fee or requested
a waiver of the fee to proceed.
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generally Liljeberg v. Health Services Acquisition Corporation, 486 U.S. 847, 862-63 (1988) (ex-
plaining that a complaint about a judge’s conduct “does not, on its own, authorize the reopening
of closed litigation”).
Mr. Byrd also alleges that the special master did not address some of his motions, that the
government did not respond to them, and that the special master wrongly found them to be un-
timely. ECF No. 35 at 2-4. Mr. Byrd cites the motions he filed at ECF Nos. 10, 18, and 28. ECF
No. 35 at 3. The special master did not ignore any of Mr. Byrd’s filings, addressing each in her
anti-filing order or final decision or both. ECF No. 26 at 14-15 (addressing ECF No. 10); ECF No.
30 at 1 (addressing “two similar motions in June and August 2017,” which are ECF Nos. 18 and
28). Also, in the anti-filing order, the special master pointed out that her opinion addressed the
substance of Mr. Byrd’s motions. ECF No. 30 at 1. Contrary to Mr. Byrd’s allegations, the court
did not reject any motions as untimely. Mr. Byrd appears to take issue with the special master’s
deciding some motions without waiting for the government’s response (ECF No. 35 at 2-4), but a
special master may decide a motion without waiting for the government’s response. See Paalan v.
United States, 57 Fed. Cl. 15, 16 (2003).
Mr. Byrd generally complains about the special master’s anti-filing order (ECF No. 35 at
5), but that order does not prohibit any filings that are allowed by the court’s rules. It only explains
that, given that the case was already closed, Mr. Byrd could only file submissions that were
“clearly being filed pursuant to the Vaccine Rules and/or Rules of [the] Court of Federal Claims.”
ECF No. 30 at 2.
Mr. Byrd asserts that the special master failed to schedule a status conference. ECF No. 35
at 4. The special master is not obligated to hold an initial status conference. Instead, the rules
provide that a special master may hold an initial status conference within 45 days after the filing
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of the petition. Vaccine Rule 4(b). Mr. Byrd’s objection also ignores the record. The special master
attempted to hold an initial status conference, requesting Mr. Byrd’s availability at least three
times. See ECF Nos. 7, 13, 14. When Mr. Byrd finally responded, he stated that he waived the
right to any hearings or conferences. ECF Nos. 15, 15-1 (“I agree to waive my right to any Hear-
ings, i.e. conferences, or anything associated with the word’s [sic] hearings or conferences.”).
Finally, Mr. Byrd argues that the government’s paralegal should not have served docu-
ments, noting that a paralegal signed a certificate of service. ECF No. 35 at 4 (citing ECF No. 16
at 8). The rules require that all documents must be signed by an attorney of record (RCFC 11(a)),
but paralegals and other staff may serve documents that are signed by the attorney of record.
III. Conclusion
For the reasons stated above, this court denies Mr. Byrd’s motion for review and affirms
the special master’s decision. The clerk of the court shall enter judgment accordingly.
IT IS SO ORDERED.
s/ Molly R. Silfen
MOLLY R. SILFEN
Judge
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