Davis v. Secretary of Health & Human Services

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
__________________________

LEONARD R. DAVIS,
Petitioner-Appellant,
v.
SECRETARY OF HEALTH AND HUMAN
SERVICES,
Respondent-Appellee.
__________________________

2010-5135
__________________________

Appeal from the United States Court of Federal
Claims in case no. 09-VV-346, Senior Judge Eric G.
Bruggink.
__________________________

Decided: February 14, 2011
__________________________

PATRICIA FINN, Patricia Finn Attorney, P.C., of Pier-
mont, New York, for petitioner-appellant.

HEATHER L. PEARLMAN, Trial Attorney, Torts Branch,
Civil Division, United States Department of Justice, of
Washington, DC, for respondent-appellee. With her on
the brief were TONY WEST, Assistant Attorney General,
TIMOTHY P. GARREN, Director, MARK W. ROGERS, Deputy
DAVIS v. HHS 2

Director, GABRIELLE M. FIELDING, Assistant Director, and
TRACI R. PATTON, Trial Attorney.
__________________________

Before LOURIE, MAYER, and GAJARSA, Circuit Judges.
PER CURIAM.
Leonard R. Davis appeals a judgment of the United
States Court of Federal Claims denying his petition for
review of a special master’s decision dismissing his claim
for compensation under the National Childhood Vaccine
Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (“Vaccine
Act”). See Davis v. Sec’y of Health & Human Servs., No.
09-VV-346 (Ct. Fed. Cl. May 12, 2010) (“Court of Federal
Claims Decision”). We affirm.
I.
Davis received an influenza vaccination on November
13, 2003. He visited the emergency room at his local
hospital several times over the next two days, complain-
ing of chest pain and other ailments. Davis continued to
seek medical attention for multiple symptoms including
“chest pain and heart trouble” throughout 2005. Davis v.
Sec’y of Health & Human Servs., No. 09-0346V, 2009 U.S.
Claims LEXIS 718, at *2 (Fed. Cl. Spec. Mstr. Dec. 18,
2009) (“Vaccine Court Decision”). Davis “began associat-
ing the symptoms with his vaccination as early as Febru-
ary 2005.” Id.
On May 28, 2009, Davis filed a petition seeking com-
pensation under the Vaccine Act. He contended that he
suffered from “muscle weakness, rapid heart rate, brain
fog, lightheadedness, and heightened levels of mercury”
as a result of the flu vaccine he had received in 2003. He
also asserted that in April 2008, he had undergone labo-
ratory testing to check his metal levels and that these
3 DAVIS v. HHS

tests indicated that he had “somewhat high levels of
mercury, lead, and other metals.”
On July 17, 2009, the government filed a motion to
dismiss the petition, arguing that it was barred by the
Vaccine Act’s statute of limitations. In response, Davis
contended that his petition was timely because it was
filed within three years of the onset of his alleged mercury
toxicity. The special master, however, rejected this argu-
ment, concluding that if Davis suffered from vaccine-
related mercury toxicity, the introduction of mercury into
his “system was accomplished at the time of the vaccine’s
administration.” Vaccine Court Decision, 2009 U.S.
Claims LEXIS 718, at *14.
The special master noted that two separate time lim-
its apply to Vaccine Act claims. Id. at *4-7. Pursuant to
42 U.S.C. § 300aa-16(a)(2), if a claimant suffers an injury
from a vaccine listed on the Vaccine Injury Table, he must
file his claim within three years after the date of the
“onset” or “manifestation” of vaccine-related symptoms.
Pursuant to 42 U.S.C. § 300aa-16(b), however, if a claim-
ant “has received a vaccine that is subsequently added to
the Table, the petitioner may file the petition pertaining
thereto within two years of that addition, but may only do
so if the vaccine at issue was received eight years or less
before that addition.” Vaccine Court Decision, 2009 U.S.
Claims LEXIS 718, at *6. Because Davis did not file his
petition within three years of the onset of his symptoms—
or within two years of the time the influenza vaccine was
added to the Vaccine Injury Table—the special master
concluded that Davis’ petition was “patently untimely.”
Id. at *14.
On January 19, 2010, Davis filed a motion for review
of the special master’s decision with the Court of Federal
Claims. He argued that the time limits for filing a claim
DAVIS v. HHS 4

under the Vaccine Act were unconstitutional because they
were ambiguous and unreasonably short.
In a thorough and well-reasoned opinion, the Court of
Federal Claims rejected Davis’ arguments and dismissed
his petition. The trial court determined that Davis had
waived the right to challenge the constitutionality of the
Vaccine Act’s statute of limitations because he had failed
to raise the issue before the special master. Court of
Federal Claims Decision, slip op. at 4. The court con-
cluded, moreover, that the time limits set forth in sections
16(a)(2) and 16(b) “passe[d] constitutional muster” be-
cause they were “reasonably related to a permissible
government goal.” Court of Federal Claims Decision, slip
op. at 5. The court explained that the three-year time
limit set out in section 16(a)(2) was designed “to provide
sufficient time for proper diagnosis of injury prior to
filing.” The time limit set forth in section 16(b), by con-
trast, was designed to give claimants a two-year “grace
period” for filing suit in situations where a new vaccine is
added to the Vaccine Injury Table. Id. (internal quotation
marks omitted). Both of these time limits, the trial court
concluded, were “rationally related to the Vaccine Act’s
dual objective[s] of achieving expeditious resolution of
claims and protecting manufacturers from uncertain tort
liability.” Id. at 6 (citations and internal quotation marks
omitted).
Davis then timely appealed to this court. We have ju-
risdiction under 42 U.S.C. § 300aa-12(f).
II.
On appeal, Davis advances several arguments in sup-
port of his contention that the time limits for filing suit
under the Vaccine Act are unconstitutional. Because he
failed to raise these arguments before the special master,
however, he is precluded from asserting them here. See
5 DAVIS v. HHS

Weddel v. Sec’y of Health & Human Servs., 23 F.3d 388,
390 n.2 (Fed. Cir. 1994); Jay v. Sec’y of Health & Human
Servs., 998 F.2d 979, 983 n.4 (Fed. Cir. 1993). Although
Davis’ attorney argues that she orally raised the issue of
whether the Vaccine Act’s statute of limitations is consti-
tutional in a status conference with the special master,
she provides no citation to the record in support of her
assertion. Under Vaccine Rule 8(f)(1), any argument that
is “not raised specifically in the record before the special
master will be considered waived and cannot be raised by
either party in proceedings on review of a special master’s
decision.” Rules of the U.S. Ct. of Fed. Cl., Vaccine Act
Rule 8(f)(1) (emphasis added). Because Davis’ counsel
points to nothing in the record establishing that argu-
ments related to the constitutionality of the Vaccine Act’s
time limits were adequately presented to the special
master, we decline to consider those arguments on appeal.
See Jay, 998 F.2d at 983 n.4 (Even where claimants
raised an issue in their Vaccine Act petition, it would not
be considered on appeal because the claimants “did not
pursue or defend the [issue] either in their case in chief or
on motions for summary judgment.”); see also Singleton v.
Wulff, 428 U.S. 106, 120 (1976) (“It is the general rule, of
course, that a federal appellate court does not consider an
issue not passed upon below.”).
Furthermore, although we conclude that Davis
waived the right to present constitutional challenges to
the Vaccine Act’s time limits, we note that this court has
previously rejected arguments that the Vaccine Act is
unconstitutional. See Black v. Sec’y of Health & Human
Servs., 93 F.3d 781, 788-90 (Fed. Cir. 1996). Because the
Act “does not implicate any fundamental right,” its provi-
sions will not be deemed unconstitutional if they are
rationally related to legitimate government objectives. Id.
at 787 (citations and internal quotation marks omitted).
DAVIS v. HHS 6

Here, as the Court of Federal Claims correctly recognized,
the time limits set out in the Vaccine Act are rationally
related to Congress’ goal of providing expeditious resolu-
tion of vaccine-related claims. See Brice v. Sec’y of Health
& Human Servs., 240 F.3d 1367, 1373 (Fed. Cir. 2001)
(emphasizing that Congress’ objective in passing the
Vaccine Act was “to settle claims quickly and easily”).