Pafford v. Leavitt - Opposition

No. 06-1047

In the Supreme Court of the United States

LISA ANN PAFFORD AND RICHARD LEON PAFFORD, PARENTS AND NEXT FRIENDS OF RICHELLE LORRAE PAFFORD, A MINOR, PETITIONERS

v.

MICHAEL O. LEAVITT, SECRETARY OF
HEALTH AND HUMAN SERVICES

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record
PETER D. KEISLER
Assistant Attorney General

MARK W. ROGERS
MELONIE J. MCCALL
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTIONS PRESENTED

1. Whether special masters who conduct proceed ings under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. 300aa-1 et seq., are inferior officers who may be appointed by a court of law or the head of a department, or instead are superior officers who must be nominated by the President and confirmed by the Senate.

2. Whether a deferential standard of review of the special masters' determinations violates the Fifth Am endment's Due Process Clause.

In the Supreme Court of the United States

No. 06-1047

LISA ANN PAFFORD AND RICHARD LEON PAFFORD, PARENTS AND NEXT FRIENDS OF RICHELLE LORRAE PAFFORD, A MINOR, PETITIONERS

v.

MICHAEL O. LEAVITT, SECRETARY OF

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 57-78) is reported at 451 F.3d 1352. The opinion of the Court of Federal Claims (Pet. App. 24-56) is reported at 64 Fed. Cl. 19. The opinion of the Court of Federal Claims special master (Pet. App. 1-23) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on June 20, 2006. A petition for rehearing was denied on October 24, 2006 (Pet. App. 79-80). The petition for a writ of certiorari was filed on January 22, 2007. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. a. Congress enacted the National Childhood Vac cine Injury Act of 1986 (Vaccine Act or the Act), 42 U.S.C. 300aa-1 et seq., to promote childhood immuniza tion programs. The Act first creates a National Vaccine Program "to achieve optimal prevention of human infec tious diseases through immunization and to achieve opti mal prevention against adverse reactions to vaccines." 42 U.S.C. 300aa-1. It then establishes a National Vac cine Injury Compensation Program (the Program), funded by a special tax on vaccines, under which "com pensation may be paid for a vaccine-related injury or death." 42 U.S.C. 300aa-10(a); see 26 U.S.C. 9510.

A claimant under the Program is not required to demonstrate that a vaccine was defective or that its manufacturer was negligent. Instead, a claimant must establish causation in one of two ways. An injury is pre sumed to have been caused by a vaccine, and therefore to be compensable, if it is listed on the Program's Vac cine Injury Table (the Table), and first manifests within a set period of time, also prescribed by the Table, after administration of the vaccine. See 42 U.S.C. 300aa- 11(c)(1)(C)(i), 300aa-13(a)(1)(A), 300aa-14(a); 42 C.F.R. 100.3(a). The presumption of causation, if it applies, may be rebutted by evidence that the injury was "due to factors unrelated to the administration of the vac cine." 42 U.S.C. 300aa-13(a)(1)(B). If a claimant's in jury is not presumed compensable under the Table, the claimant may nonetheless obtain compensation by prov ing that the vaccine in fact caused or significantly aggra vated an injury. 42 U.S.C. 300aa-11(c)(1)(C)(ii), 300aa- 13(a)(1)(A).

The compensation available under the Act includes unreimbursed medical expenses, rehabilitation, special education, vocational training, residential and custodial care, special equipment, lost earnings, pain and suffer ing, and attorneys' fees. 42 U.S.C. 300aa-15(a) and (e). A claimant who is dissatisfied with a Program award may reject the award and bring a civil action under state tort law, subject to certain limitations. 42 U.S.C. 300aa- 11(a), 300aa-21. State statutes of limitations are tolled during the pendency of a Vaccine Act claim. 42 U.S.C. 300aa-16(c).

b. The Act establishes an office of special masters within the United States Court of Federal Claims (CFC), and specifies the duties of the special masters and the procedures by which they are to evaluate peti tions for compensation. 42 U.S.C. 300aa-12(c). Within 30 days of the issuance of a special master's decision, the parties may seek review by the CFC. 42 U.S.C. 300aa- 12(e). The CFC's decision may be reviewed by the Court of Appeals for the Federal Circuit. 42 U.S.C. 300aa-12(f).

As originally enacted, the Vaccine Act placed juris diction over Vaccine Act cases in the district courts of the United States. Vaccine Act, Pub. L. No. 99-660, Tit. III, § 2112(a), 100 Stat. 3761. It also provided that the special master would prepare and submit to the court proposed findings of fact and conclusions of law. § 2112(c)(2)(E), 100 Stat. 3762. The district court could consider any matter de novo. § 2112(d)(1), 100 Stat. 3762. Congress later amended the Act to confer juris diction over Vaccine Act petitions in the United States Claims Court, the CFC's predecessor. Vaccine Compen sation Amendments of 1987, Pub. L. No. 100-203, Tit. IV, Subtit. D, § 4307, 101 Stat. 1330-224 (42 U.S.C. 300aa-12).

In 1989, Congress amended the Vaccine Act again in order to correct "fundamental problems" in the "nature of the adjudication of petitions," and to "re-dedicat[e] * * * all parties to the creation of an expeditious, non- adversarial, and fair system." H.R. Rep. No. 247, 101st Cong., 1st Sess. 509 (1989). Under the amendments, a special master may issue a decision, including findings of fact and conclusions of law, rather than submitting proposed findings and conclusions of law to the CFC. 42 U.S.C. 300aa-12(d)(3). The CFC now reviews factual findings under the arbitrary-and-capricious standard, and reviews legal determinations for accordance with law. 42 U.S.C. 300aa-12(e)(2). That change in the stan dard of review reflects the expectation "that the Special Master and the powers given to the Master [would] al low the proceedings to be direct and straightforward." H.R. Rep. No. 247, supra, at 510.

2. On March 22, 2001, petitioners sought compensa tion under the Act on the ground that their daughter, Richelle Lorrae Pafford, first showed signs of systemic onset juvenile rheumatoid arthritis, also known as Still's disease, after receiving vaccinations. Gov't C.A. Br. 2; Pet. App. 1, 4. The timing of the onset of Richelle's Still's disease did not give rise to a presumption of com pensability under the Vaccine Injury Table. Id. at 9. After considering the evidence, the special master con cluded that petitioners had not shown by a preponder ance of the evidence that Richelle's vaccinations actually caused her disease. Id. at 23. He accordingly denied compensation. Ibid.

3. The CFC sustained the special master's decision. Pet. App. 24-56. Following a thorough discussion of the special master's decision and the evidence of record, the CFC found that petitioners' claim lacked merit because petitioners failed: (1) to establish that the onset of Ri chelle's condition occurred within a medically accepted time frame from the date of vaccination, and (2) to ad dress adequately the range of other potential causes of Richelle's condition suggested by the record. Id. at 51- 55. With regard to petitioners' contention that the spe cial master abused his discretion by failing to provide notice that he would consider the time frame issue, the CFC found that petitioners were on notice of the need for such proof. Id. at 50-51.

4. The court of appeals affirmed. Pet. App. 57-78. It held that petitioners had failed to produce evidence to establish the medically accepted time frame in which Still's disease might develop following vaccination and, therefore, failed to establish that Richelle's vaccinations caused her Still's disease. Id. at 64-65. The court noted that the record contained other known, contemporane ous events unrelated to the vaccinations that were just as likely as the vaccinations to cause Still's disease. Id. at 66-67.

The court of appeals also rejected petitioners' argu ment that the special master violated their due process rights by raising the temporal relationship issue sua sponte at the close of trial without providing a full and fair opportunity for petitioners to present evidence on that issue. Pet. App. 67-68. The court noted that the record demonstrated that petitioners were on notice of the temporal relationship issue well before the end of trial and had, in fact, presented medical testimony on that point. Ibid.

Judge Dyk dissented on causation. Pet. App. 68-78. He did not dissent on the due process issue. See ibid.

ARGUMENT

Petitioners seek (Pet. 10) a "sweeping, remedial ex ercise of this Court's supervisory jurisdiction" to review numerous aspects of the Vaccine Act Program. They assert (Pet. i) two specific legal challenges: an Appoint ments Clause challenge to the appointment of special masters by the judges of the CFC; and a Due Process Clause challenge to the standard of review under which the CFC reviews factual findings by special masters. As a remedy for those alleged violations, petitioners seek (Pet. 10) to impose "the strictures and procedural pro tections of the Administrative Procedure Act," along with uniform rules of pleading, proof, causation, and stare decisis that they consider to be lacking in the cur rent system. The questions presented in the petition were neither pressed nor passed upon below. There is no conflict among the circuits on those issues, and peti tioners' assertions lack merit in any event. Accordingly, further review is not warranted.

1. Petitioners first contend (Pet. 10-13) that the Vac cine Act violates the Appointments Clause because it authorizes special masters of the CFC to issue decisions that are not subject to de novo review in all respects by CFC judges.

a. Petitioners did not advance that claim below, and the lower courts did not reach it. This Court does not ordinarily consider claims that were neither pressed nor passed upon below. See, e.g., United States v. Williams, 504 U.S. 36, 41 (1992). Petitioners note that this Court has on occasion considered similar constitutional issues that were raised for the first time in this Court. See Pet. 7 & n.12, 8 n.14 (citing Freytag v. Commissioner, 501 U.S. 868, 879 (1991); Glidden Co. v. Zdanok, 370 U.S. 530, 535-536 (1962) (plurality opinion)). This is not, however, "one of those rare cases" warranting a depar ture from this Court's ordinary practice. See Freytag, 501 U.S. at 879. To the contrary, petitioners' broadside on numerous aspects of the carefully crafted Vaccine Act compensation system only underscores one of the rea sons this Court does not ordinarily address claims in the first instance-even if the questions presented other wise warranted this Court's review, the Court would benefit from the views of the lower courts that adminis ter this compensation scheme, pursuant to Congress's grant of exclusive jurisdiction.

b. In any event, petitioners' Appointments Clause challenge lacks merit. The Appointments Clause pro vides that the President:

shall nominate, and by and with the Advice and Con sent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise pro vided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

U.S. Const. Art. II, § 2, Cl. 2 (emphasis added). By di recting the judges of the CFC to appoint special masters (42 U.S.C. 300aa-12(c)(1)), Congress exercised its au thority under the Appointments Clause to vest the ap pointment of special masters in that body. This Court has consistently upheld similar exercises of appointing authority. See Freytag, 501 U.S. at 883, 890-892 (hold ing that the Tax Court is a court of law that may appoint special trial judges to hear certain tax cases); id. at 901 (Scalia, J., concurring in part and in the judgment) (con cluding that the Chief Judge of the Tax Court is the head of a department who may appoint inferior judges); Edmond v. United States, 520 U.S. 651, 666 (1997) (hold ing that judges of the Coast Guard Court of Criminal Appeals need not be nominated by the President or con firmed by the Senate).

Petitioners nonetheless argue (Pet. 10-13) that spe cial masters exercise authority that can only be con ferred on superior officers nominated by the President and confirmed by the Senate. In petitioners' view (Pet. 12-13), that conclusion follows from the deferential stan dard of review under which the CFC and the Federal Circuit review special masters' factual determinations. That contention is wrong.

As this Court has explained, the fact that a judge exercises "significant authority on behalf of the United States" helps to show that the judge is an officer subject to the Appointments Clause, but does not mean that the judge is a superior officer, rather than an inferior one, and must therefore be nominated by the President and confirmed by the Senate. Edmond, 520 U.S. at 662-663. Instead, "[g]enerally speaking, the term 'inferior officer' connotes a relationship with some higher ranking officer or officers below the President: Whether one is an 'infe rior officer' depends on whether he has a superior." Id. at 662. Here, the special masters have superiors-the judges of the CFC, who have authority to hire, fire, and determine the compensation of the special masters. 42 U.S.C. 300aa-12(c)(1), (2) and (5).

Edmond specifically refutes petitioners' contention (Pet. 13) that "[t]he power of a Court of Law to make de novo determinations has always been essential to the validity of the appointment of a subordinate official of that court." Superiors seldom have the time or re sources to review de novo all of their subordinates' work, but that hardly means that the subordinates are not subordinates. Thus, this Court held in Edmond, contrary to petitioners' legal theory, that judges of the Coast Guard Court of Criminal Appeals are inferior offi cers even though their superior court, the Court of Ap peals for the Armed Forces, exercises a "narrower" scope of review than the Court of Criminal Appeals by considering only whether "there is some competent evi dence in the record to establish each element of the of fense beyond a reasonable doubt." 520 U.S. at 665. There is no reason to apply a stricter standard in civil cases.1

Moreover, petitioners overstate the deference ac corded to special masters. The CFC may "set aside any findings of fact or conclusions of law of the special mas ter found to be arbitrary, capricious, an abuse of discre tion, or otherwise not in accordance with law and issue its own findings of fact and conclusions of law." 42 U.S.C. 300aa-12(e)(2)(B). Claimants and the Secretary may also appeal to the Federal Circuit. 42 U.S.C. 300aa- 12(f).

Thus, contrary to petitioners' contention (Pet. 12), special masters' authority is not "unbridled." As the statute makes clear, a special master's legal conclusions are reviewed de novo by the CFC and the Federal Cir cuit under the "not in accordance with law" standard. 42 U.S.C. 300aa-12(e)(2)(B); see Bradley v. Secretary of the Dep't of HHS, 991 F.2d 1570, 1574 n.3 (Fed. Cir. 1993) ("Legal conclusions are, of course, always reviewed de novo."). Factual findings are also subject to review un der the same "arbitrary and capricious" standard used in the Administrative Procedure Act (APA) and other statutes. See 42 U.S.C. 300aa-12(e)(2)(B) (Vaccine Act); 5 U.S.C. 706(2)(A) (APA). That degree of deference to special masters is integral to Congress's intent to create a "quick, flexible, and streamlined system" under which "awards [would] be made to vaccine-injured persons quickly, easily, and with certainty and generosity." H.R. Rep. No. 247, supra, at 509; H.R. Rep. No. 908, 99th Cong., 2d Sess. 3 (1986).

Petitioners' attack on the Vaccine Act's incorporation of APA standards of review is difficult to square with their assertion (Pet. 10) that, as a remedial matter, this Court should "impose upon [the Vaccine Act] the stric tures and procedural protections of the Administrative Procedures Act." A petitioner who is dissatisfied with the results of Vaccine Act proceedings has greater rights than a dissatisfied party in APA proceedings, because he may reject the Vaccine Act judgment and pursue a civil action for damages. 42 U.S.C. 300aa-21(a). In any event, the Appointments Clause analysis ultimately turns on whether special masters have superiors other than the President (which they do), not on the extent to which their decisions are reviewed deferentially.

2. Nor does petitioners' due process claim warrant further review. The question presented in the petition asks (Pet. i) what "maximum judicial deference" may constitutionally be afforded to special masters. In con trast, the body of the petition (Pet. 14-18) advances a due process challenge to the Act's decisional structure, arguing that claimants are not fairly apprised of the is sues or the applicable law. The latter contentions are not fairly included in the question presented, and do not warrant further review in any event.

a. Petitioners' broadside on the Vaccine Act's deci sional structure was neither pressed nor passed upon below. In the lower courts, petitioners advanced the narrower, fact-bound claim that they lacked an opportu nity to be heard on the specific question whether the onset of Richelle's alleged vaccine-related injury oc curred within a medically acceptable time period follow ing vaccination. See Pet. C.A. Br. 1. The CFC and the Federal Circuit both rejected that claim because the record shows that petitioners were on notice of the need to prove that the injury occurred within the required time period, and that petitioners in fact submitted evi dence on that point. Pet. App. 49-51, 67-68. The lower courts' unanimous assessment of the factual record does not warrant this Court's review. Cf. Graver Tank & Mfg. Co. v. Linde Air Prods. Co., 336 U.S. 271, 275 (1949) (explaining that the Court will not "undertake to review concurrent findings of fact by two courts below in the absence of a very obvious and exceptional showing of error").

In any event, the lower courts' assessment of the record is correct. Petitioners state (Pet. 2) that they sought "to satisfy the legal causation-in-fact 'test' articu lated * * * in the published opinion styled as Stevens v. Secretary of DHHS." As petitioners acknowledge (Pet. 2 n.2), that "test" includes "proof of a medically acceptable temporal relationship between the vaccina tion and the onset of the injury." Thus, petitioners were aware that, as part of their case-in-chief, they needed to prove a medically acceptable temporal relationship. Indeed, as the court of appeals noted, petitioners pre sented evidence on that issue through the testimony of Dr. Mark Geier, and argued below that Dr. Geier's testi mony was "on all fours" regarding the timing issue. Pet. C.A. Br. 9, 35; see Pet. App. 67-68. As the court of ap peals explained, "[w]hile Dr. Geier did not supply suffi cient admissible evidence to satisfy this critical portion of the causation test, Pafford's admitted reliance on Dr. Geier in this regard impeaches her Due Process argu ment." Pet. App. 67-68.

b. Petitioners' broader contention that the Act's entire decisional structure violates the Due Process Clause was neither pressed nor passed upon below. It also lacks merit. Petitioners' contention is premised on the assertion (Pet. 15) that special masters have "unbri dled discretion" to decide cases based on their own in vestigation, without affording claimants notice and an opportunity to be heard on the issues that may underlie the special masters' decisions. That is not correct.

The Vaccine Act provides:

In conducting a proceeding on a petition, a special master-

(i) may require such evidence as may be rea sonable and necessary,

(ii) may require the submission of such infor mation as may be reasonable and necessary,

(iii) may require the testimony of any person and the production of any documents as may be reasonable and necessary,

(iv) shall afford all interested persons an op portunity to submit relevant written informa tion-(I) relating to the existence of the evidence described in section 300aa-13(a)(1)(B) of this title, or (II) relating to any allegation in a petition with respect to the matters described in section 300aa- 11(c)(1)(C)(ii) of this title, and

(v) may conduct such hearings as may be reasonable and necessary.

42 U.S.C. 300aa-12(d)(3)(B) (emphasis added).

Thus, the Act requires the special master to afford interested persons an opportunity to submit written in formation regarding causation. 42 U.S.C. 300aa- 12(d)(3)(B)(iv). And a special master's other decisions concerning the presentation of evidence are reviewed for abuse of discretion. 42 U.S.C. 300aa-12(e). Special mas ters must also enter findings of fact and conclusions of law on the record. 42 U.S.C. 300aa-12(d)(3)(A)(1). On their face, those statutory provisions are sufficient to safeguard due process. And as discussed, there is no as- applied concern in this case, because petitioners had notice and an opportunity to be heard on the dispositive time frame issue.

Petitioners' related suggestion (e.g., Pet. 8-9) that special masters invent ad hoc legal standards in individ ual cases is also incorrect. Proceedings are governed by the statute, as construed by the Federal Circuit. While petitioners complain that decisions of special masters and CFC judges do not establish binding precedents for subsequent cases, see Pet. 9 n.15 (citing Hanlon v. Sec retary of HHS, 40 Fed. Cl. 625, 630 (1998), aff'd, 191 F.3d 1344 (Fed. Cir. 1999), cert. denied, 530 U.S. 1210 (2000)), trial court decisions are not ordinarily preceden tial. Instead, appellate courts, including the Federal Circuit here, establish precedents binding on trial courts. Cf. Althen v. HHS, 418 F.3d 1274, 1281 (Fed. Cir. 2005) ("The special master's role is to assist the courts by judging the merits of individual claims on a case-by-case basis, not to craft a new legal standard."). That hardly makes trial court adjudications arbitrary or unconstitutional.

While Vaccine Act proceedings do not follow the same procedures as civil actions, the reason is that Con gress desired a quicker, more streamlined procedure for compensating claimants. H.R. Rep. No. 908, supra, at 3. And a claimant who is dissatisfied with an award un der the Act may reject it and bring an ordinary tort ac tion in court. 42 U.S.C. 300aa-11(a), 300aa-21. Con gress's use of more informal procedures in that context than in the context of binding civil adjudication does not violate the Due Process Clause.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
PETER D. KEISLER
Assistant Attorney General
MARK W. ROGERS
MELONIE J. MCCALL
Attorneys

MAY 2007

1 Petitioners' reliance (Pet. 13) on United States v. Raddatz, 447 U.S. 667 (1980), is unavailing. Raddatz-which did not consider an Appoint ments Clause challenge-held that district judges are not required to rehear evidence heard by magistrate judges. Id. at 673, 676. Raddatz also upheld, against an Article III challenge, the district courts' discre tion "to give to [a] magistrate's proposed findings of fact and recom mendations 'such weight as [their] merit commands and the sound dis cretion of the judge warrants.'" Id. at 683 (quoting Mathews v. Weber, 423 U.S. 261, 275 (1976)).