Michele Y. TERRAN, as legal representative of Julie F. TERRAN, a minor, Petitioner-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent-Appellee.
No. 98-5161.
United States Court of Appeals, Federal Circuit.
Oct. 27, 1999.
We therefore vacate the award, and remand the matter to the district court. Because of the subjective nature of the City‘s promotion process, the district court was unable to identify two individual class members who should have received the 1992 promotions. On remand, we therefore direct the district court to award each certified officer candidate a pro rata share of the monetary vаlue of the promotion for which they were eligible.7
III.
In sum, the district court‘s remedial award was excessive, and should have been limited to a pro rata division among those officers certified for the 1992 promotions. The twelve sergeant candidates should share, on a pro rata basis, the value of the sergeant promotion. The twenty-three lieutenant candidates should share, on a pro rata basis, the value of the lieutenant promotion. Accordingly, we vacate the district court‘s award and remand.
VACATED IN PART AND REMANDED.
Claudia G. Gangi, Trial Attorney, Torts Branch, Civil Division, Department of Justice, of Washington, DC, argued for respondent-appellee. With her on the brief were Helene M. Goldberg, Director and John Lodge Euler, Deputy Director.
Before PLAGER, LOURIE, and CLEVENGER, Circuit Judges.
Opinion for the court filed by Circuit Judge CLEVENGER. Dissenting opinion filed by Circuit Judge PLAGER.
CLEVENGER, Circuit Judge.
Michele Terran appeals from the judgment by the United States Court of Federal Claims sustaining the Special Master‘s decision to deny compensation to Julie F. Terran under the National Child Vaccine Injury Act of 1986 (the “Vaccine Act” or “Act“). See Terran v. Secretary of Dept. of Health & Human Services, 41 Fed.Cl. 330 (Fed.Cl.1998). Terran argues that the Vaccine Injury Table applied by the Special Master to her claim is invalid because the statutory scheme pursuant to which it was created is unconstitutional, and also that the Court of Federal Claims erred both legally and factually in sustaining the Special Master‘s ruling. We hold, however, that the Vaccine Act does not violate separation of powers principles, and that the Court of Federal Claims committed no reversible error. We therefore affirm.
This appeal raises three issues: (i) whether the Court of Federal Claims has jurisdiction to adjudicate constitutional challenges to the validity of the current Vaccine Injury Table, which was promulgated by the Secretary pursuant to
A
The relevant facts are not in dispute. Julie Terran was born on February 10, 1992, in Phoenix, Arizona, and was discharged in good health from the hospital the next day. Julie received her first diphtheria-pеrtussis-tetanus (“DPT“) vaccination when she was two months old, and her second DPT vaccination when she was three and one-half months old. On August 10, 1992, when Julie was six months old, she received her third DPT vaccination. Julie received her fourth DPT vaccination on September 22, 1993. All of the vaccinations were given by Dr. Gary Berebitsky, Julie‘s pediatrician, at her well-baby care checkup examinations. The first three DPT vaccines utilized whole cell pertussis bacteria, whereas the fourth was an acellular DPT vaccine. Julie‘s third vaccination, which occurred on August 10, 1992, is the basis for this dispute.
On August 11, 1992, the day after her third DPT vaccination, Julie experienced a seizure lasting approximately seven seconds which caused one of her arms to become stiff. The next day, August 12, Julie suffered four afebrile seizures, each lasting roughly one minute in length. Immediately after the seizures, Julie was rushed by ambulance to Phoenix Children‘s Hospital, where she was admitted. On August 13, in the presence of hospital personnel, Julie suffered another seizure lasting approximately five and one-half minutes. Hospital personnel then administered the anti-convulsant drug Phenobarbital to Julie. In the seven days following Julie‘s third DPT vaccination, she experienced a total of aрproximately twelve minutes of seizure activity. On September 12, roughly one month after the vaccination in question, Julie suffered a seizure lasting 50 minutes even though she was on Phenobarbital at the time. Julie‘s seizures continue to this day.
On September 13, 1993, Dr. Berebitsky noted that Julie was “well appearing” and “neurologically intact.” However, in November 1993, he noted a problem with Julie‘s neurological condition, indicating that she scored a borderline passing grade on the Denver Developmental Screening Test. Julie is currently mentally retarded.
Julie also had a meningocele lump removed from her skull as a young child. Prior to her third DPT vaccination, Julie‘s doctors conducted several tests to determine whether she suffered any permanent brain damage as a result of the lump. These tests concluded that she had no brain abnormalities. An MRI scan conducted on May 18, 1992, showed that Julie had normal brain structure, and a test showed that there was no cancer in the removed lump. A certified pediatric neurosurgeon conducted a follow-up on Julie‘s surgery and found her neurological condition to be unremarkable except for moderate strabismus. Two MRI‘s conducted after Julie‘s third vaccination showed that she had nо structural pathology in her brain. In connection with Terran‘s claim for compensation under the Vaccine Act, the Government requested that Julie undergo two separate genetic workups, both of which showed normal results.
B
Childhood vaccinations, though an important part of the public health program, are not without risk. Because vaccines often contain either killed bacteria or live
Accordingly, in 1986, Congress passed the National Childhood Vaccine Injury Act of 1986, Pub.L. No. 99-660, 1986 U.S.C.C.A.N. (100 Stat.) 3755 (codified as amended at
To aid the Vaccine Program‘s goal of providing efficient compensation for vaccine injuries, Congress provided, in the form of a table, a list of vaccines, a parallel list of adverse medical conditions commonly associated with the use of each vaccine, and, for certain medical conditions, a time period in which the first symptoms should become apparent following vaccination. See id.
Congress included the Initial Table in the Vaccine Act legislation, rather than delegating the creation of the first injury table to the Secretary, because it was concerned that the administrative process would significantly delay the implementation of the Vaccine Compensation Program. See Vaccine Injury Compensation: Hearings on H.R. 5810 Before the Subcomm. on Health and the Env‘t of the House Comm. on Energy and Commerce, 98th Cong. 210-11 (1984) (letter from Martin H. Smith, Vice President, American Academy of Pediatrics to Representative Henry A. Waxman). Congress intended the Secretary to revise and update the Initial Table with more accurate information that would become available as a result of the research on vaccine injuries mandated by the Vaccine Act. See National Childhood Vaccine Injury Act of 1986, Pub.L. No. 99-660, § 312, 1986 U.S.C.C.A.N. (100 Stat.) 3755, 3779-81 (requiring the Secretary to make findings on the accuracy of the Initial Table with respect to, inter alia, pertussis vaccines and to propose regulations to modify the Initial Table accordingly); H.R.Rep. No. 99-908, at 18, reprinted in 1986 U.S.C.C.A.N. 6344, 6359. Thus, the Vaccine Act gives the Secretary the express power to promulgate regulations that modify the Table by adding to, or deleting from, the list of compensable disorders and by revising the time periods contained in the Table. See
C
Terran filed a petition for compensation with the Court of Federal Claims on July 12, 1995. The petition alleged that Julie‘s third DPT vaccination, administered on August 10, 1992, caused Julie to suffer both RSD and encephalopathy. Because the 1995 Table does not list RSD as a compensable injury associated with DPT vaccine, the Special Master concluded that Terran must establish causation in fact to prevail on this count. With respect to encephalopathy, Terran conceded that Julie‘s disorder did not meet the definition of an encephalopathy as set forth in the revised QAIs, and the Special Master accordingly concluded that Terran could prevail only if she demonstrated causation in fact for this illness as well. See Terran v. Secretary of Health & Human Services, No. 95-451V, slip op. at 8-9 (Fed. Cl. (Special Master) Jan. 23, 1998). After examining the medical records and testimony, the Special Master determined that Terran failed to establish a prima facie case of causation in fact for either of Julie‘s conditions and denied compensation. See id. at 18.
Terran sought review of the Special Master‘s findings in the Court of Federal Claims. In her motion for review, Terran first alleged that the Vaccine Act is unconstitutional insofar as it authorizes the Secretary to modify the statutorily-enacted Initial Table found at
II
We consider first the Court of Federal Claims‘s ruling that it does not have jurisdiction to consider appellant‘s constitutional challenge to the Vaccine Act. We review questions involving the jurisdiction of the Court of Federal Claims de novo. See Widdoss v. Secretary of Dept. of Health & Human Services, 989 F.2d 1170, 1174 (Fed.Cir.1993). Determining the jurisdiction of the Court of Federal Claims necessarily involves statutory interpretation, which we likewise review de novo. See Munn v. Secretary of Dept. of Health & Human Services, 970 F.2d 863, 870 (Fed.Cir.1992); Neher v. Secretary, Dept. of Health & Human Services, 984 F.2d 1195, 1197-98 (Fed.Cir.1993).
A
The Court of Federal Claims found that it lacked jurisdiction on two grounds. Reciting the well-known fact that it only has jurisdiction to hear claims against the Government for money damages, the court ruled that Terran‘s argument that the Vaccine Act violated the Presentment Clаuse of the Constitution, see
It is well understood that the Court of Federal Claims, like all federal courts, is a court of limited jurisdiction. Its jurisdiction is defined by the Tucker Act, which gives that court authority to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.
We think that the Court of Federal Claims misconstrued the scope of its jurisdiction. The Presentment Clause of the Constitution states that before becoming law, a legislative act must be approved by both houses of Congress and must be presented to the President of the United
Because jurisdiction is proper, the Court of Federal Claims had the power to address Terran‘s argument based on the Constitution. See Beck v. Secretary, 924 F.2d 1029, 1036 (Fed.Cir.1991) (“It is, however, reasonable to infer that the [Vaccine] Act must confer on the Claims Court that power which is necessary to adjudicate the controversy before it.“); compare Connolly, 716 F.2d at 887 (holding that the Court of Claims did not have jurisdiction over plaintiff‘s First Amendment claim of improper removal) with Jackson v. United States, 192 Ct.Cl. 765, 428 F.2d 844, 846 (Ct.Cl.1970) (holding that the Court of Claims did have jurisdiction over plaintiff‘s statutory claim for back pay, including arguments based on the First Amendment). We are therefore convinced that Terran‘s claim for compensation under the Vaccine Act properly lies within the jurisdiction of the Court of Federal Claims, unless ousted on the second ground decided by the court.
B
The Court of Federal Claims also held that a provision in the Vaccine Act providing for immediate judicial review of rules promulgated under the Act precluded it from reviewing Terran‘s challenge to the validity of the 1995 Table. That statutory review provision states:
A petition for review of a regulation under this part may be filed in a court of appeals of the United States within 60 days from the date of the promulgation of the regulation or after such date if such petition is based solely on grounds arising after such 60th day.
Again, we disagree with the jurisdictional analysis by the Court of Federal Claims. The first and most important step when interpreting a statute is, of course, analyzing its text. It is significant that the language of section
Nevertheless, we recognize that there are cases in which courts have held that statutory review provisions specifying a limited time period for challenging regulations in a particular forum preclude later challenges to those regulations. The District of Columbia Circuit, for example, has held that statutory time limits on review of agency rulemaking can foreclose subsequent challenges to those rules. See, e.g., Eagle-Picher, 759 F.2d at 911; Natural Resources Defense Council v. NRC, 666 F.2d 595, 601-03 (D.C.Cir.1981). These cases, however, do not support the Government‘s broad contention that review of vaccine regulations is never proper after expiration of the 60-day statutory review period. In Eagle-Picher, for example, the statutory provision at issue was section 113(a) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (“CERCLA“) which, as already mentioned, specifically stated that agеncy rules had to be challenged within 90 days, and any matter which could have been raised in that time period was not subject to later judicial review. See
Terran‘s claim in this case—that the 1995 Table is an invalid regulation because that section of the Vaccine Act authorizing its creation is unconstitutional—is a substantive challenge to the validity of the 1995 Table. In addition, the Special Master clearly applied the 1995 Table to Terran‘s claim for compensation in an adjudication, which in many ways is similar to the agency actions discussed in NLRB Union and Functional Music. Therefore, even if section
III
We turn next to the substance of Terran‘s constitutional challenge to the Vac-
A
The Presentment Clause requires, in relevant part, that “[e]vеry Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it,”
The Presentment Clause is inapplicable to administrative rulemaking in general, of course, because rulemaking is by definition not a legislative act, but rather an exercise of executive function properly entrusted to administrative agencies. See, e.g., American Trucking Assns., Inc. v. United States, 344 U.S. 298, 310-13, 73 S.Ct. 307, 97 L.Ed. 337 (1953). Nevertheless, because the Initial Table was made a part of the Vaccine Act, see
The Constitution does not authorize members of the executive branch to enact, amend, or repeal statutes. See Clinton, 524 U.S. at 438. Instead, this legislative power is vested exclusively in Congress, and the exercise of such legislative power must follow the procedures set forth in the Constitution. See Chadha, 462 U.S. at 954 (“Amendment and repeal of statutes, no less than enactment, must conform with Art[icle] I.“). The critical question in this case is therefore whether the Secretary‘s action in promulgating the 1995 Table should properly be understood as an amendment or a repeal of an existing law.
We are convinced that the Vaccine Act does not authorize the Secretary to amend or repeal portions of the Act, but rather merely grants her the power to promulgate new regulations as contemplated in the Act. First, as a formal matter, the Act does not in fact allow the Secretary to explicitly amend the Initial Table. Although we acknowledge that the statutory language in section
Realizing this, Terran argues instead that the Act effectively allows the Secre-
The Supreme Court‘s recent decision in Clinton v. New York is not to the contrary. In holding the Line Item Veto Act unconstitutional in Clinton, the Court identified three factors distinguishing that statute from the one at issue in Field v. Clark, 143 U.S. 649, 12 S.Ct. 495, 36 L.Ed. 294 (1892), in which the Court upheld the constitutionality of the Tariff Act of 1890 that authorized the President to suspend legislatively-enacted import duty exemptions on certain goods whenever he felt that the exporting country was treating United States products unfairly. See Clinton, 524 U.S. at 442-43; Act of Oct. 1, 1890, § 3, 26 Stat. 612. First, the Court noted that the President‘s suspension power under the Tariff Act was contingent on conditions that did not exist when that law was passed, whereas the five-day time limit for canceling an appropriations line item under the Line Item Veto Act meant that the President‘s action was necessarily based on the same conditions contemplated by Congress. See id. at 443. In the Vaccine Act, as in the Tariff Act, Congress anticipated that the facts underlying its legislation might change in the future. See, e.g.,
Finally, the Clinton Court considered it important that the President was fulfilling Congress‘s policy under the Tariff Act when he suspended certain import duty exemptions, whereas he was clearly contravening Congress‘s policy judgment when he canceled spending items under the Line Item Veto Act. See Clinton, 524 U.S. at 444. The brief outline of the Vaccine Act already provided above demonstrates compellingly that the Secretary was executing congressional policy when she promulgated the 1995 Table. Indeed, the Act explicitly directed the Secretary to study pertussis vaccines and to promptly promulgate a revised injury table based on such findings. See National Childhood Vaccine Injury Act of 1986, Pub.L. No. 99-360, § 312, 1986 U.S.C.C.A.N. (100 Stat.) 3755, 3779-80. Thus, we conclude that the Secretary‘s actions in this case are controlled by Field v. Clark, rather than Clinton.
Under section
B
We next consider Terran‘s argument that, by granting the Secretary the power to promulgate revised vaccine injury tables, the Vaccine Act effects an unconstitutional delegation of legislative power to the Secretary. Under the “non-delegation doctrine,” Congress may “seek[] assistance from another branch” of the Government, as long as “the extent and character of that assistance [are] fixed according to common sense and the inherent needs of Governmental co-ordination.” J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 406, 48 S.Ct. 348, 72 L.Ed. 624 (1928). Accordingly, “[i]f Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform, such legislative action is not a forbidden delegation of legislative power.” Id. at 409.
We have little doubt that the Vaccine Act sets forth such an intelligible principlе to guide the Secretary‘s actions. Again with reference to the statute, Congress has provided the Secretary with both substantive guideposts and procedural requirements that must be observed. For example, the Initial Table in the Act itself operates as an intelligible principle that
Congress provided ample guidance and limits on the Secretary‘s authority to promulgate revised vaccine injury tables, and thus Congress‘s commitment of power to the Secretary under the Vaccine Act does not violate the nondelegation doctrine. Accordingly, the 1995 Table is a valid regulatory enactment.
IV
A
Having determined that the 1995 Table is valid, we finally turn to the merits of the case. Terran‘s first argument in favor of reversal, notwithstanding the validity of the regulations at issue, is that the 1995 Table should not apply to her, because her claim arose before the effective date of the regulations. That is, Terran argues that because Julie was assertedly injured by a vaccination on August 10, 1992, her claim arose well before the March 1995 effective date of the Table regulations. Terran suggests that to apply the 1995 Table to her case would work an impermissible retroactive application of law. We disagree.
While we concur with Terran‘s authoritative citation that “retroactivity is not favored in the law,” see Landgraf v. USI Film Prods., 511 U.S. 244, 264, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), it does not follow that the 1995 Table does not apply to her case. For it is equally clear that “where congressional intent is clear, it governs.” Id. (quoting Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 837, 110 S.Ct. 1570, 108 L.Ed.2d 842 (1990)). Here, the statute specifically states that newly-promulgated Table regulations “shall apply only with respect to petitions for compensation under the Program which are filed after the effective date of such regulation.”
B
Terran next argues that the Special Master erred in discounting the causation-in-fact testimony of her expert. The Special Master, applying the factors set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), determined that the expert‘s theory regarding the causal link between the pertussis toxin and Julie‘s condition did not meet the standards for scientific reliability enunciated in Daubert.
Terran first argues that the application of Daubert to this realm of expert knowledge, “general medical issues,” was erroneous. She suggests that the Daubert framework is narrowly intended to prevent the introduction of “junk science” into trials, rather than as a broader tool for analyzing the admissibility of scientific testimony. We disagree. To the extent we had any doubt at all regarding the permissible use of the Daubert framework outside the “scientific” areas specifically discussed in that case, the Supreme Court‘s recent decision in Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), has clarified the issue. Kumho Tire specifically notes that the general principles of Daubert apply broadly to “scientific, technical, or other specialized knowledge,” and that the rules of evidence require that the trial judge determine “whether the testimony has ‘a reliable basis in the knowledge and experience of [the relevant] discipline.‘” Id. at 1175 (quoting Daubert, 509 U.S. at 592). Thus, the Special Master did not err in analyzing the proffered testimony according to Daubert.
Terran next argues that the Special Master improperly applied the Daubert factors to the expert‘s testimony. In particular, Terran suggests that the Special Master erred by requiring the evidence to meet each of the four Daubert factors.2 However, we do not read the Special Master‘s decision as requiring that Terran‘s proffered evidence meet all of the Daubert factors. Instead, we view the Special Master‘s analysis as using Daubert‘s questions as a tool or framework for conducting the inquiry into the reliability of the evidence. See Kumho Tire, 526 U.S. at 1175 (”Daubert‘s list of factors was meant to be helpful, not definitive.“). The Special Master found that the Daubert inquiry raised serious questions about the testimony, and thus concluded that the proffered theory of causation was not sufficiently reliable. See Terran v. Secretary of Health & Human Services, No. 95-45IV, slip op. at 14 (Fed. Cl. (Special Master) Jan. 23, 1998). Because we view the Special Master‘s application of the Daubert factors to be reasonable, see Kumho Tire, 526 U.S. at 1176 (“[A] trial court should consider the specific factors identified in Daubert where they are reasonable measures of the reliability of expert testimony.“), and do not discern any abuse of discretion in the analysis, see Burns v. Secretary of Dept. of Health & Human Services, 3 F.3d 415, 416-17 (1993) (reviewing the Special Master‘s evidentiary determinations for abuse of discretion), we affirm the Special Master‘s decision to discount the testimony.
C
Terran‘s final argument is that the Special Master, and thus the Court of Federal Claims, did not address her “straightforward” causation-in-fact argu-
V
In summary, we hold that the Vaccine Act does not violate either the Presentment Clause of the Constitution or the nondelegation doctrine that emanates from separation of powers principles. We affirm the ruling by the United States Court of Federal Claims that the 1995 Table applies to these facts, and that Terran failed to present a prima facie case for compensation under the Act.
COSTS
No costs.
AFFIRMED
PLAGER, Circuit Judge, dissenting.
Under the United States Constitution, Congress may legislatively declare the rights and liabilities of its citizens in one, and only one, way, and that is by a “Bill which shall have passed the House of Representatives and the Senate, [and] shall, before it becomes a Law, be presented to the President of the United States” for approval or veto.
In this case, Congress purported to provide for the amendment of existing legislation, which was otherwise valid and enforceable by the courts of the United States, in a manner different from that provided in the Constitution, namely by authorizing an Executive Branch official to do it. That effort must necessarily fail. The majority‘s valiant effort to uphold the purported amended legislation must also fail, since no amount of verbal adroitness can change the reality of what happened. I respectfully dissent.
1.
The essentials of this case are simple. In 1986 Congress enacted legislation, approved by the President, which entitled persons injured by certain childhood vaccines to a financial recovery paid from the Treasury of the United States. The legislation, inter alia, set out in detail the particulars of certain injuries caused by the specified vaccines and the evidence of their happening; if a person established those particulars, he or she was entitled to a recovery. The injuries thus described were known as “table injuries“, since the particulars were set out in the legislation in the form of a Vaccine Injury Table. See
In a separate subsection of the legislation,
Some years later, in 1995, the Secretary chose to exercise that power, and purportedly amended the statute. Plaintiff-Appellant in this case alleges that she would be entitled to an award under the terms of the Congressionally-enacted table, but that under the table аs amended by the Secretary she is not so entitled. She challenges the application of the amended statute to her case.
Given the clarity with which the Constitution speaks to this question, and the Supreme Court‘s unequivocal honoring of the Presentment Clause in Chadha and Clinton, one might suppose that this would be a not-difficult case to decide. The majority, however, seeks to find a way around the Constitution, and it is to that effort that I now turn.
2.
As a preliminary matter, I agree with the result reached by the majority in Part IIA of its opinion, i.e., that the Court of Federal Claims has jurisdiction to adjudicate Terran‘s constitutional challenges to the Vaccine Act, though I cannot join the majority‘s convoluted analysis in reaching that conclusion. The majority devotes considerable energy to analyzing whether Terran‘s claim is for money damages. The “money damages” requirement for claims before the Court of Federal Claims arises from that court‘s jurisdiction under the Tucker Act. See, e.g., United States v. Mitchell, 463 U.S. 206, 216-17, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983); United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). While it is true that the Court of Federal Claims is a court of limited jurisdiction, the Tucker Act is not the only statute expressly granting that court jurisdiction.
As the majority seems to recognize, slip op. at 1314, the Vaccine Act itself provides the Court of Federal Claims with jurisdiction to detеrmine whether Terran is entitled to compensation and the amount of such compensation. See
The Court of Federal Claims has jurisdiction “to determine if a petitioner ... is entitled to compensation under the [National Vaccine Injury Compensation] Program.”
Moving on to Part IIB of its opinion, the majority there considers at some length whether
By its plain language,
Terran‘s claim in this case is not a challenge to the manner of promulgation or to the content itself of the regulation that amended the 1995 Table. It is instead a challenge to the underlying enabling statute,
3.
The heart of my dissent lies in my disagreement with the majority‘s conclusion in Part IIIA that
Congress enacted into law the initial version of the Vaccine Injury Table by following proper enactment and presentment procedures in accordance with Article I of the Constitution. As noted, the Supreme Court as recently as last year has made clear that any modification to a statute must follow those same procedures. See Clinton, 524 U.S. at 448-49. Because
The majority holds that the Vaccine Act does not authorize the Secretary to amend the original Vaccine Injury Table, but that it merely authorizes the creation of an entirely new table by regulation, the new table of course superseding the old one. That is little more than a transparent attempt to find a verbal formula for disguising the reality of what transpired. The
Indeed, the crux of the majority‘s argument derives from the following syllogism: “This new table applies only prospectively. ... The Initial Table remains codified and unaltered, and continues to apply to all petitions filed before the revision. Therefore, the Initial Table is not amended.” Slip op. at 1313. The unstated major premise is that an amendment that leaves the earlier provision unrepealed means that the earlier provision is not “amended.” It does not require much analysis to recognize the fundamental flaw in that argument.
When Congress changes an existing law, for example by increasing the amount of a penalty for prohibited conduct, or by modifying the criteria for an entitlement, it is almost invariably the case that the provisions of the original statute remain in effect for all cases arising prior to the effective date of the amendment, and that the changed requirements apply only prospectively, to newly-arising matters. As the Supreme Court has admonished, “retroactivity [of legislation] is not favored in the law.” Landgraf v. USI Film Products, 511 U.S. 244, 264, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), with the result that Congress rarely makes such changes retroactive. Under the majority‘s syllogistic reasoning, it would follow that Congress does nоt “amend” a statute when it makes changes in existing legislation, and leaves the earlier enactment unrepealed; only in the rare case of total repeal with retroactivity is the change an “amendment.” That conclusion takes generally understood legal terminology and stands it on its head.
Putting aside such verbal obfuscation, what is clear is that, as a result of the regulation promulgated by the Secretary in 1995, the initial Vaccine Injury Table is no longer legally effective with regard to cases arising after the effective date of the amendment. The Secretary has deleted a provision which, but for the deletion, would be available for the benefit of persons like Terran. Absent the regulation, the original Vaccine Injury Table would continue to apply to Terran and all others similarly situated; with the regulatorily-amended Table, only the amended table applies to those who file their petitions after the effective date of the regulation.
It matters not whether we say, as the majority says, that the original Vaccine Injury Table was not amended, but that just a new Table was put into law, or whether we acknowledge the obvious reality that the then-existing Table was effectively amended by the regulаtion. The result is the same—the statutory table as enacted by Congress does not apply to petitions filed after the Secretary‘s regulation took effect. To paraphrase the words the Supreme Court used in Clinton, “[i]n both legal and practical effect, the [Secretary] has amended [an Act] of Congress by repealing a portion of [it],” and “[t]he cancellation of one section of a statute may be the functional equivalent of a partial repeal even if a portion of the section is not canceled.” Clinton, 524 U.S. at 438, 441.
In further support of its judgment, the majority suggests that the statute by inference has a “sunset” provision. That simply is not the case. Congress did not decide when the initial Vaccine Injury Table would become ineffective, either by specifying a date or by defining a particular event that would render the initial table ineffective. To suggest, as the majority does, that the Secretary‘s action is an event selected by Congress to trigger the effective repeal of the initial Vaccine Injury Table is nothing more than circular reasoning, for it is the Secretary‘s action in
Congress could have chosen to write the statute differently. If Congress in the Vaccine Act had specified certain external events upon the happening of which the enacted table became no longer effective, and at which time the Secretary was to create a revised injury table, and left to the Secretary the determination of when the specified events in fact occurred, the analysis might be different. See Clinton, 524 U.S. at 445 (explaining that the Tariff Act of 1890 was upheld in Field v. Clark, because “Congress itself made the decision to suspend or repeal the particular provisions at issue upon the occurrence of particular events subsequent to enactment, and it left only the determination of whether such events occurred up to the President“). But we are not presented with such a situation. The Vaccine Act gives the Secretary complete authority to modify the table, unrestrained by any prerequisite conditions established by Congress, beyond those procedural steps alluded to earlier.
As an alternative, in enacting the Vaccine Act Congress, presumably without violating the Constitution, might have established appropriate criteria under which the Secretary was given authority to create the initial table through an administrative rulemaking procedure, along with the power to revise the table from time to time consistent with those criteria. Congress, however, did not choose this route either, and instead, for whatever reason, included the initial Vaccine Injury Table in the statute itself. Having done so, Congress can render the enacted statute inapplicable to those who come within it only by repealing or amending the statute in compliance with the bicameralism and presentment procedures of Article I of the Constitution.
The majority‘s statement, slip op. at 1313, that Congress intended that the Secretarially-revised table would supersede its statutory table is irrelevant. See Clinton, 524 U.S. at 445-46 (“The fact that Congress intended such a result is of no moment.“). Thus there is little question that
4.
Words have consequences. The Constitution‘s constraints have served us well. Judges regularly attend to the constraints the Constitution places upon their own performance, such as the requirement for a genuine “case” or “controversy” before a federal court may exercise judicial power. See
Because I would hold that the 1995 attempt by the Secretary to revise the initial Vaccine Injury Table is of no legal effect, I would not reach Plaintiff‘s alternative theory of causation-in-fact which the majority addresses in Part IV of its opinion. Instead, I would vacate the judgment of the Court of Federal Claims, and remand the case to that court with instructions to analyze Terran‘s claims under the legislatively-enacted table in