Greene v. Hhs

Case: 20-1544 Document: 36 Page: 1 Filed: 12/28/2020

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

ROY GREENE,
Petitioner-Appellant

v.

SECRETARY OF HEALTH AND HUMAN
SERVICES,
Respondent-Appellee
______________________

2020-1544
______________________

Appeal from the United States Court of Federal Claims
in No. 1:11-vv-00631-MMS, Chief Judge Margaret M.
Sweeney.
______________________

Decided: December 28, 2020
______________________

ROY GREENE, Spring, TX, pro se.

HEATHER LYNN PEARLMAN, Vaccine/Torts Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent-appellee. Also represented by
JEFFREY B. CLARK, C. SALVATORE D'ALESSIO, CATHARINE E.
REEVES.
______________________
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2 GREENE v. HHS

Before NEWMAN, O’MALLEY, and TARANTO, Circuit Judges.
Opinion for the court filed PER CURIAM.
Dissenting opinion filed by Circuit Judge O’MALLEY.
PER CURIAM.
Roy Greene sought compensation under the National
Childhood Vaccine Injury Act of 1986 (Vaccine Act), 42
U.S.C. §§ 300aa-1 to -34, based on his claim that the teta-
nus-diphtheria (Td) vaccine he received in July 2009
caused his brachial neuritis. The special master first con-
cluded that Mr. Greene did not meet a precondition for in-
voking a presumption of causation under the relevant
provision of the Vaccine Injury Table, a ruling not at issue
here. The special master then considered whether, without
the aid of the Table presumption, Mr. Greene had proved
that the vaccine caused his condition. The special master
found that Mr. Greene did not prove actual causation and
so was not entitled to recover under the Vaccine Act. The
United States Court of Federal Claims (Claims Court) af-
firmed the special master’s denial of recovery. Applying
the required deferential standard of review to the special
master’s findings, we affirm.
I
On July 22, 2009, Mr. Greene received treatment at
Clear Lake Regional Medical Center for a puncture wound
on his hand. As part of that treatment, he received a Td
vaccination. About six weeks later, Mr. Greene began ex-
periencing symptoms of brachial neuritis. 1

1 The Vaccine Injury Table identifies brachial neuri-
tis, in relevant part, as “dysfunction limited to the upper
extremity nerve plexus (i.e., its trunks, divisions, or
cords),” marked upon onset by “severe aching pain in the
shoulder and upper arm.” 42 C.F.R. § 100.3(c)(6).
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GREENE v. HHS 3

In 2011, Mr. Greene filed this action in the Claims
Court against the Secretary of Health and Human Ser-
vices, seeking relief under the Vaccine Act, § 300aa-11, and
alleging that the Td vaccine he received caused his brachial
neuritis. Initially, Mr. Greene asserted both (1) a claim un-
der the Vaccine Injury Table, 42 C.F.R. § 100.3(a)(I)(B),
which provides for a presumption of causation when bra-
chial neuritis symptoms begin within twenty-eight days of
the Td vaccination date, and (2) a non-Table claim, for
which Mr. Greene had to establish actual causation of the
brachial neuritis. In 2015, after an evidentiary hearing,
the special master found that Mr. Greene’s symptoms of
brachial neuritis began no earlier than forty-one days after
vaccination—more than the twenty-eight days specified in
the Table, and on that basis dismissed Mr. Greene’s Table
claim. Greene v. Sec’y of Health & Human Servs., No. 11-
631V, 2015 WL 9056034, at *1 (Fed. Cl. Spec. Mstr. July
31, 2015).
Mr. Greene continued to pursue his theory of actual
causation under our three-part approach laid out in Althen
v. Secretary of Health & Human Services, 418 F.3d 1274
(Fed. Cir. 2005). In support of his claim, Mr. Greene filed
several expert reports, including two from Dr. Thomas W.
Wright, and, at the special master’s direction, a report from
Dr. Marcel Kinsborne. The Secretary moved for a ruling in
its favor on the record, which the special master granted in
May 2017.
Mr. Greene sought reconsideration under Vaccine Rule
10(e), attaching a second report from Dr. Kinsborne and
eighteen scientific articles, as well as a letter from Dr. Vera
Byers. The special master granted reconsideration, but
again denied entitlement, explaining that the “record does
not support [his] allegation that his Td vaccine more likely
than not caused his brachial neuritis.” Greene v. Sec’y of
Health & Human Servs., No. 11-631V, 2017 WL 5382856,
at *7 (Fed. Cl. Spec. Mstr. Sept. 26, 2017). On appeal, how-
ever, the Claims Court vacated the decision, as having
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4 GREENE v. HHS

rested on an incorrect legal standard, and remanded for
further proceedings. Greene v. Sec’y of Health & Human
Servs., 136 Fed. Cl. 445, 453–54 (2018).
On remand, the special master denied the Secretary’s
motion for a ruling on the record, but authorized the Sec-
retary to file an expert report, which the Secretary had not
previously done. Greene v. Sec’y of Health & Human Servs.,
No. 11-631V, 2018 WL 3238611, at *1 (Fed. Cl. Spec. Mstr.
May 7, 2018). The Secretary submitted a report from Dr.
Eric Lancaster, to which Mr. Greene responded with his
own reports from Dr. Kinsborne, as well as a new report
from Dr. Lawrence Steinman. In August 2019, the special
master held a hearing to evaluate Mr. Greene’s claim of ac-
tual causation. Greene v. Sec’y of Health & Human Servs.,
No. 11-631V, 2019 WL 4072110, at *1 (Fed. Cl. Spec. Mstr.
Aug. 2, 2019).
At the hearing, Mr. Greene’s experts, Drs. Steinman
and Kinsborne, compared brachial neuritis to Guillain-
Barré syndrome (GBS). They cited scientific literature for
the proposition that both GBS and brachial neuritis are au-
toimmune conditions with a common pathogenesis. And
they testified that—because six weeks was a reasonable
time of onset for GBS—brachial neuritis could also develop
in that timeframe. Id. at *3–10.
The Secretary’s expert, Dr. Lancaster, rejected the
analogy between GBS and brachial neuritis, testifying that
GBS differs from brachial neuritis in several important re-
spects. Id. at *11. Specifically, he stated that brachial neu-
ritis tends to be an “axonal” injury with a “localized nature
of the inflammation,” whereas GBS is primarily considered
a “demyelination” injury that tends to be multifocal or bi-
lateral. Id. Next, Dr. Lancaster testified that Mr. Greene’s
medical records were consistent with brachial neuritis, ra-
ther than GBS, stating that the “electrodiagnostic test re-
sults . . . suggested to him the presence of ‘severe axonal
injury.’” Id. at *12. Dr. Lancaster also observed that no
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GREENE v. HHS 5

one who treated Mr. Greene for brachial neuritis had indi-
cated that his condition may have been caused by his Td
vaccine, and he opined that there may have been other trig-
gers for the condition, such as an injury Mr. Greene suf-
fered in early September 2009. Id.
On August 2, 2019, the special master found that Mr.
Greene had not met his burden of proving actual causation.
Id. at *22. The special master stated that forty-one days
was not a medically acceptable timeframe for the vaccine
to have caused the brachial neuritis. Id. at *21. In his de-
cision, he explained that Dr. Lancaster’s testimony persua-
sively undermined the reliance on GBS by Mr. Greene’s
experts for their opinions about Mr. Greene’s brachial neu-
ritis. Id. at *19–20. Next, the special master articulated
several independent bases for his conclusion that “[t]he rec-
ord provides no objective evidence whatsoever—direct, cir-
cumstantial, or otherwise—that [Mr. Greene] was
experiencing an autoimmune-derived injury attributable
to vaccination,” including that (1) Mr. Greene did not ex-
hibit any symptoms until September 2009, when he went
to an emergency room with acute pain consistent with bra-
chial neuritis, (2) “nothing from the pre- or post-vaccina-
tion record suggest[s] that an autoimmune reaction was
brewing in a subclinical form,” and (3) Mr. Greene’s treat-
ing doctors never “implicated the tetanus vaccine as caus-
ative of his injuries” or suggested intravenous
immunoglobin treatment. Id. at *21. On those bases, the
special master concluded that Mr. Greene had not estab-
lished either a proximate temporal relationship between
his vaccination and his brachial neuritis (one requirement
of Althen) or a logical cause-and-effect sequence between
his vaccination and his brachial neuritis onset (another re-
quirement of Althen). Id. at *20–21.
Mr. Greene sought review in the Claims Court, which
affirmed the special master’s decision. Greene v. Sec’y of
Health & Human Servs., 146 Fed. Cl. 655 (2020). Although
the court determined that some of the special master’s
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6 GREENE v. HHS

findings of fact were arbitrary and capricious (e.g., regard-
ing the experts’ credentials), it ultimately decided that
those findings were “unnecessary for [the special master’s]
conclusion that [Mr. Greene] did not establish that the Td
vaccine caused his brachial neuritis.” Id. at 665–66. The
Claims Court concluded that, although it “likely would
have reached a different conclusion on the merits of [Mr.
Greene’s] claim” had it been the finder of fact, it could not
disturb the special master’s decision under the governing
deferential standard of review. Id. at 669.
Mr. Greene filed a timely notice of appeal on March 6,
2020. We have jurisdiction under 42 U.S.C. § 300aa-12(f).
II
For Vaccine Act claims, we review the Claims Court’s
decision de novo, “‘applying the same standard of review as
[that court] applied to its review of the special master’s de-
cision.’” Lozano v. Sec’y of Health & Human Servs., 958
F.3d 1363, 1368 (Fed. Cir. 2020) (quoting Griglock v. Sec’y
of Health & Human Servs., 687 F.3d 1371, 1374 (Fed. Cir.
2012)). Although we review any legal rulings de novo, the
standard of review for factual matters is highly deferential.
Id. We determine only “whether the special master’s find-
ings were arbitrary and capricious.” Lampe v. Sec’y of
Health & Human Servs., 219 F.3d 1357, 1360 (Fed. Cir.
2000). “We do not reweigh the factual evidence, assess
whether the special master correctly evaluated the evi-
dence, or examine the probative value of the evidence or
the credibility of the witnesses.” Porter v. Sec’y of Health
& Human Servs., 663 F.3d 1242, 1249 (Fed. Cir. 2011); see
also Cedillo v. Sec’y of Health & Human Servs., 617 F.3d
1328, 1338 (Fed. Cir. 2010). At least here, where the chal-
lenge involves a weighing of evidence, “reversible error is
extremely difficult to demonstrate if the special master has
considered the relevant evidence of record, drawn plausible
inferences and articulated a rational basis for the decision.”
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GREENE v. HHS 7

Lampe, 219 F.3d at 1360 (internal quotation marks omit-
ted).
Under the Vaccine Act, the burden of proof on whether
the vaccine actually caused the injury rests with the claim-
ant, who “must show that the vaccine was ‘not only a but-
for cause of the injury but also a substantial factor in bring-
ing about the injury.’” Lozano, 958 F.3d at 1368–69 (quot-
ing Shyface v. Sec’y of Health & Human Servs., 165 F.3d
1344, 1352 (Fed. Cir. 1999)). To do so, a claimant must
prove, by a preponderance of the evidence, three elements
specified in Althen:
(1) a medical theory causally connecting the vac-
cine 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 proxi-
mate temporal relationship between vaccination
and injury.
418 F.3d at 1278. For the first element, the claimant must
demonstrate that the vaccine at issue can cause the injury
alleged. Pafford v. Sec’y of Health & Human Servs., 451
F.3d 1352, 1355–56 (Fed. Cir. 2006). For the second ele-
ment, the claimant “must show that the vaccine was the
‘but for’ cause of the harm.” Id. at 1356. For the third ele-
ment, the claimant must prove “that the onset of symptoms
occurred within a timeframe for which, given the medical
understanding of the disorder’s etiology, it is medically ac-
ceptable to infer causation in-fact.” de Bazan v. Sec’y of
Health & Human Servs., 539 F.3d 1347, 1352 (Fed. Cir.
2008).
In this case, the special master agreed that Mr. Greene
proved the first element, citing expert testimony and the
“ample prior decisions associating vaccines containing a
tetanus component with brachial neuritis.” Greene, 2019
WL 4072110, at *16. But the special master found that Mr.
Greene had not proved the other two Althen elements—a
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8 GREENE v. HHS

logical cause-and-effect sequence and a proximate tem-
poral relationship between the vaccine and injury. Id.
III
On appeal, Mr. Greene principally argues that the spe-
cial master failed to account adequately for specific pieces
of evidence, including Mr. Greene’s full medical history and
certain medical literature relevant to the six-week time
from vaccine to the onset of brachial neuritis in his case.
Inf. Br. for Pet. at *1–2. Mr. Greene also seeks relief on the
grounds that (1) his counsel did not follow his instructions,
(2) he did not receive a jury trial, and (3) he is entitled to
costs. Id. We review these contentions in turn, applying
the required deferential standard of review to factual find-
ings of the special master. 2
A
Regarding Mr. Greene’s challenge to the special mas-
ter’s treatment of evidence, we note first that Mr. Greene
cannot now challenge the special master’s 2015 finding
that the date of onset of his brachial neuritis was forty-one

2 Mr. Greene mentions certain other contentions
that, in the Claims Court, did not appear in his counsel-
signed Memorandum of Objections, but only in an adden-
dum that the Claims Court rejected because it was not
signed by counsel (when Mr. Greene was represented). See
Inf. Br. at *1; Pet. Addendum at *1–2 (filed Sept. 9, 2019).
Because Mr. Greene has not shown error in the Claims
Court’s rejection of the addendum, we do not consider con-
tentions that appeared only in that document.
In response to Mr. Greene’s request for access to cer-
tain trial-court record material now that he is proceeding
pro se, we ordered the government to supply him two tran-
scripts from the proceedings before the special master, and
the government did so. We provided Mr. Greene an oppor-
tunity to file a new brief, but he did not file one.
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GREENE v. HHS 9

days after vaccination. Although Mr. Greene testified that
his symptoms began earlier, he did not contest the special
master’s finding as to the date of onset before the Claims
Court. Memorandum of Objections for Pet. at 4 n.3 (“While
Mr. Greene does not agree with [the date of onset as deter-
mined by the special master], Mr. Greene is not challeng-
ing the ruling.”). Arguments not properly preserved are
forfeited. R. Ct. Fed. Cl., Appendix B, Vaccine Rule 8(f)(1)
(“Any fact or argument not raised specifically in the record
before the special master will be considered waived and
cannot be raised . . . on review of a special master’s deci-
sion.”).
Mr. Greene contends that the special master did not
consider his “[f]ull medical [h]istory.” Inf. Br. at *1. But
he has not so demonstrated. The special master considered
Mr. Greene’s medical records in his decision, noting that
September 2009 was the first time Mr. Greene experienced
symptoms of brachial neuritis, that there was no indication
in the records of any subclinical form of brachial neuritis,
and that Mr. Greene’s treating physicians never suggested
in the records any link between his Td vaccine and his bra-
chial neuritis. Greene, 2019 WL 4072110, at *21. Mr.
Greene has not shown a material failure to consider medi-
cal records that would affect resolution of the causation is-
sue once, as required, the binding determination of date of
onset is accepted.
Mr. Greene suggests that the special master did not
consider certain medical-record information. But as to
some of the information he now cites, the Secretary states
that the information was not before the special master, and
Mr. Greene has not indicated, let alone shown, otherwise.
See Br. of Resp. at 7 (discussing amount of tetanus in Mr.
Greene’s body and number of tetanus-containing vaccines
he received). In any event, Mr. Greene has not shown that
the special master failed to consider medical-record
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10 GREENE v. HHS

information that was before him and material to causation
given the date of onset.
The only medical-record information Mr. Greene iden-
tifies as placed before the special master is the record in-
formation considered at the special master’s hearing to
determine the date of onset of Mr. Greene’s symptoms. See
Addendum for Pet. at *2. Mr. Greene notes that the special
master credited the records of physician Dr. Jeffery Watts,
but required testimony about other treating physicians’
records needing clarification—notably, those of Dr. Chu.
Id. Mr. Greene has not shown error in this regard, much
less error material to the causation question. The special
master had good reason to scrutinize Dr. Chu’s records be-
cause they, unlike Dr. Watts’s records, suggested conflict-
ing symptom-appearance dates. Ruling Regarding
Findings of Fact, No. 11-631V, ECF No. 56, at *12 (July 31,
2015). Dr. Chu, in his testimony, explained the different
date references as applying to an incident, on one hand,
and symptom appearance, on the other. See Testimony of
Dr. Chu, ECF No. 53, Tr. 23–24, 27 (Mar. 25, 2015). The
special master reasonably credited the explanation in find-
ing the date of onset. Mr. Greene has not shown otherwise.
He also has not shown how requiring Dr. Watts to testify
as to the accuracy of his records could cast doubt on the
special master’s inferences drawn from the records dis-
cussed or why even if one adopted Mr. Greene’s interpreta-
tion of Dr. Chu’s records, the special master had to view
those records, dated over a month after Mr. Greene first
reported to the emergency room with symptoms of brachial
neuritis, should be considered as more persuasive than the
contemporaneous records from Mr. Greene’s other treating
physicians, all of whom indicated that the symptoms began
in September 2009. See Cucuras v. Sec’y of Health & Hu-
man Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993) (Contem-
poraneous “[m]edical records, in general, warrant
consideration as trustworthy evidence.”).
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GREENE v. HHS 11

Mr. Greene has not shown lack of substantial evidence
to support the determination of what those records as a
whole showed or failed to show about a cause-effect connec-
tion between the vaccine and the brachial neuritis in Mr.
Greene’s case. The Claims Court concluded that one of the
special master’s three subsidiary findings was deficient—
the finding that it was significant that the records did not
reveal “subclinical” evidence of brachial neuritis. Greene,
2019 WL 4072110, at *21. But the Claims Court also con-
cluded that the other two findings about the records were
adequately supported and themselves allowed the special
master to find that the records as a whole undermined ra-
ther than supported the claim of causation of the injury by
the vaccine. We agree.
The special master found that Mr. Greene did not ex-
perience symptoms of brachial neuritis until September
2009, nearly six weeks after receiving his Td vaccine but
only days after suffering an injury from physical exertion,
thus presenting a plausible alternative cause. Id. at *21–
22. The special master also found that Mr. Greene’s medi-
cal records indicated that none of Mr. Greene’s treating
doctors had suggested in the records that his symptoms
were caused by his Td vaccine. Id. Such “medical records
. . . are favored in vaccine cases, as treating physicians are
likely to be in the best position to determine whether ‘a log-
ical sequence of cause and effect show[s] that the vaccina-
tion was the reason for the injury.’” Capizzano v. Sec’y of
Health & Human Servs., 440 F.3d 1317, 1326 (Fed. Cir.
2006) (alteration in original) (quoting Althen, 418 F.3d at
1280); see also Cucuras, 993 F.2d at 1528. The special mas-
ter’s findings are plausibly drawn from the records as a
whole. See Cedillo, 617 F.3d at 1338. We reject Mr.
Greene’s challenge to the special master’s determination
that Mr. Greene did not establish a logical cause-and-effect
relationship between vaccine and injury by a preponder-
ance of the evidence.
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12 GREENE v. HHS

B
Mr. Greene argues that the special master did not ad-
equately consider certain medical literature bearing on
whether he established a proximate temporal relationship
between his vaccine and his brachial neuritis under the
third requirement of Althen. 3 We reject this contention on
its merits, while noting that, in any event, the special mas-
ter’s finding as to the cause-and-effect relationship inde-
pendently supports affirmance here.
In his decision, the special master thoroughly reviewed
several of the articles presented by the parties and the tes-
timony given by their experts. Greene, 2019 WL 4072110,
at *3–13. On that basis, the special master found that, for
brachial neuritis, an onset no earlier than six weeks after
the vaccine was not temporally proximate. In particular,
the special master relied on his finding that Dr. Lancaster
credibly showed that the studies on which Mr. Greene prin-
cipally relied—which concerned the onset of GBS—were
not a persuasive foundation for a finding that six weeks
was temporally proximate for brachial neuritis, a different
condition. Id. at *16–21.
Mr. Greene suggests a failure on the part of the special
master to consider certain significant medical literature.
“We generally presume that a special master considered
the relevant record evidence even though he does not ex-
plicitly reference such evidence in his decision.” Moriarty
v. Sec’y of Health & Human Servs., 844 F.3d 1322, 1328
(Fed. Cir. 2016); see also Hazlehurst v. Sec’y of Health &
Human Servs., 604 F.3d 1343, 1352 (Fed. Cir. 2010) (same).

3 Mr. Greene describes this literature as addressing
“Parsonage Turner Syndrome.” Inf. Br. at *1. The parties
and their experts agree that some medical literature refers
to brachial neuritis by that name. See Greene, 2019 WL
4072110, at *1 n.3.
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GREENE v. HHS 13

And here, Mr. Greene has not shown that the special mas-
ter failed to consider any literature that was presented to
the special master and needed to be discussed, over and
above the literature that was discussed, in order for a find-
ing to be sufficiently supported.
The only literature that Mr. Greene has identified as
not adequately addressed is not helpful to his case or is
merely cumulative of the literature that the special master
did discuss. Specifically, Mr. Greene identifies: (1) pages
taken from a report on the 1966 “proceedings of the inter-
national conference on tetanus,” Addendum for Pet. at *8–
11; (2) a 1948 study discussing “Shoulder-Girdle” syndrome
and its relationship to “injection of serum,” id. at *12–17;
(3) a 1985 study reviewing medical personnel for compli-
ance with tetanus vaccination guidelines, id. at *18–21; (4)
a sentence from the abstract of an investigation of the “de-
toxification mechanism of formaldehyde-treated tetanus
toxin,” id. at *22–23; and (5) a page from the New England
Journal of Medicine (dated 1969) that discusses the preva-
lence of tetanus and suggests a schedule for vaccination,
id. at *28. This literature, even if properly raised, focuses
on the pathology of tetanus and the proper dosage and pro-
cedures for administering a Td vaccine. None of the docu-
ments even mentions GBS or brachial neuritis, let alone
provides evidence that symptoms like Mr. Greene’s could
arise within forty-two days from receiving a Td vaccine.
Therefore, Mr. Greene has not shown how the special
master’s finding about temporal proximity could reasona-
bly have been altered by this literature, given what Mr.
Greene’s experts said about this literature and the special
master’s crediting of Dr. Lancaster’s response to Mr.
Greene’s evidence. The evidence Mr. Greene says was not
adequately considered was, in context, essentially redun-
dant of or irrelevant to the evidence the special master ex-
pressly discussed.
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14 GREENE v. HHS

Mr. Greene also challenges the special master’s consid-
eration of expert testimony pertaining to the relationship
between brachial neuritis and GBS. Inf. Br. at *1 (citing
Addendum for Pet. at *2). He argues specifically that Dr.
Lancaster “never gave the differences between Parsonage
Turner Syndrome, [b]rachial [n]euritis, and GBS.” Adden-
dum for Pet. at *2. Mr. Greene contends that this is error
because the special master ultimately found that GBS and
brachial neuritis were sufficiently different, such that evi-
dence that GBS could occur more than six weeks after Td
vaccination was not helpful in determining a medically rea-
sonable date of onset for brachial neuritis. Id.
Contrary to Mr. Greene’s assertion, the special master
expressly addressed the differences between GBS and bra-
chial neuritis (the latter also named Parsonage Turner
Syndrome). The special master, in reviewing Dr. Lancas-
ter’s testimony, noted that “Dr. Lancaster . . . took issue
with the efforts of [Mr. Greene’s] experts to borrow GBS
onset timeframes for this case, stressing the differences in
the two conditions.” Greene, 2019 WL 4072110, at *11; see
also Testimony of Dr. Lancaster, ECF No. 139, Tr. 87–90
(May 9, 2019) (explaining the “several important differ-
ence” between GBS and brachial neuritis). The special
master devoted two full paragraphs of his opinion to Dr.
Lancaster’s testimony about the distinctions between GBS
and brachial neuritis (relating to their distinct pathologies
and their defining symptoms). Greene, 2019 WL 4072110,
at *11. That testimony provides support for the special
master’s determination that “[d]espite some of their com-
mon features, GBS is simply not sufficiently comparable to
brachial neuritis to apply the same onset timeframe to
both.” Id. at *18. Because the special master considered
and weighed evidence concerning the relationship between
GBS and brachial neuritis, we do not disturb his findings
as to their dissimilarities or the reasonableness of forty-two
days as the time of onset for brachial neuritis.
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GREENE v. HHS 15

We conclude that the special master did not commit re-
versible error in finding no proven temporal proximity un-
der Althen.
C
Mr. Greene raises several other issues on appeal, none
of which calls for disturbing the judgment on appeal.
First, he argues that he was entitled to a jury trial. Inf.
Br. at *2. But the Vaccine Act does not authorize juries to
hear entitlement claims. Rather, in enacting the Vaccine
Act, Congress authorized special masters at the Office of
Special Masters to adjudicate claims to entitlement. 42
U.S.C. § 30aa-12. Nor does the jury-trial right stated in the
Seventh Amendment to the Constitution apply to a mone-
tary claim such as this one brought against the United
States as sovereign. See Lehman v. Nakshian, 453 U.S.
156, 160 (1981); Galloway v. United States, 319 U.S. 372,
388–89 (1943); Washington Int’l Ins. Co. v. United States,
863 F.2d 877, 878–79 (Fed. Cir. 1988).
Next, Mr. Greene argues that he is entitled to an award
of litigation costs and fees under the Vaccine Act, 42 U.S.C.
§ 300aa-15(e). Inf. Br. at *1–2. His request for fees and
costs, however, is still pending in the Claims Court and is
not properly part of the present appeal.
Finally, Mr. Greene expresses dissatisfaction with his
counsel’s conduct during the proceedings before the special
master and the Claims Court. Inf. Br. at *1. He did not
properly present this grievance to the Claims Court, how-
ever, and the issue is therefore not preserved for purposes
of this appeal. Vaccine Rule 8(f)(1). Timely initial presen-
tation to the trial court of such a claim is especially im-
portant given the Supreme Court’s long recognition of a
strong rule that “each party is deemed bound by the acts of
his lawyer-agent.” Link v. Wabash R.R. Co., 370 U.S. 626,
634 (1962); see also Pioneer Investment Servs. Co. v.
Case: 20-1544 Document: 36 Page: 16 Filed: 12/28/2020

16 GREENE v. HHS

Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 397
(1993); Smith v. Ayer, 101 U.S. 320, 326 (1879).
IV
For the foregoing reasons, the judgment of the Claims
Court is affirmed.
The parties shall bear their own costs on appeal.
AFFIRMED
Case: 20-1544 Document: 36 Page: 17 Filed: 12/28/2020

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

ROY GREENE,
Petitioner-Appellant

v.

SECRETARY OF HEALTH AND HUMAN
SERVICES,
Respondent-Appellee
______________________

2020-1544
______________________

Appeal from the United States Court of Federal Claims
in No. 1:11-vv-00631-MMS, Chief Judge Margaret M.
Sweeney.
______________________

O’MALLEY, Circuit Judge, dissenting.
Because I agree with the United States Court of Fed-
eral Claims that the special master’s credibility findings
were arbitrary and capricious and because multiple other
findings are unsupported by the record, I would reverse the
special master’s determination and remand. I, accord-
ingly, respectfully dissent.