                                                                     REISSUED FOR PUBLICATION
                                                                                   MAR 4 2019
                                                                                     OSM
                                                                         U.S. COURT OF FEDERAL CLAIMS
               3Jn tbe Wniteb ~tates QC:ourt of jfeberal QC:lai111s
                                OFFICE OF SPECIAL MASTERS
                                    Filed: February 7, 2019

* * * * * * * * * * * * * *                    *
HOUSTON BYRD, JR.,                             *       UNPUBLISHED
                                               *
                 Petitioner,                   *       No. 17-900V
                                               *
V.                                             *       Chief Special Master Dorsey
                                               *
SECRETARY OF HEALTH                            *       Motion for Reconsideration; Vaccine Rule
AND HUMAN SERVICES,                            *       l0(e)(l); Manifest Injustice.
                                               *
                 Respondent.                   *
                                               *
* * * * * * * *            * * * * * * *
Houston Byrd, Jr., Newmark, OH, pro se.
Mallori B. Openchowski, US Department of Justice, Washington, DC, for respondent.

       ORDER DENYING PETITIONER'S MOTION FOR RECONSIDERATION 1

        On July 3, 2017, Houston Byrd, Jr. ("petitioner") filed a petition for compensation under
the National Vaccine Injury Compensation Program ("the Program"). 2 Petitioner alleged that he
suffered from headaches, stomachaches, elevated blood sugar levels, and weight loss after
receiving influenza ("flu") and Pneumovax3 vaccinations on October 1, 2015. Petition at 1-2.
On November 29, 2018, the undersigned dismissed the petition for failure to prosecute and
insufficient proof. Decision dated Nov. 29, 2018 (ECF No. 47). Petitioner subsequently filed a
timely motion for reconsideration. Motion for Reconsideration ("Mot.") dated Dec. 20, 2018


       1
         The undersigned intends to post this Order on the United States Court of Federal
Claims' website. This means the Order will be available to anyone with access to the
Internet. In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to
redact medical or other information, the disclosure of which would constitute an unwarranted
invasion of privacy. If, upon review, the undersigned agrees that the identified material fits
within this definition, the undersigned will redact such material from public access. Because this
unpublished Order contains a reasoned explanation for the action in this case, the undersigned is
required to post it on the United States Court of Federal Claims' website in accordance with the
E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion
of Electronic Government Services).

       2
           Petitioner has not been represented by counsel at any point during these proceedings.

       3
         Because the Pneumovax vaccine is not covered by the Vaccine Act, any claim based on
this vaccine must be dismissed. See 42 U.S.C. § 300aa-1 l(c)(l)(A).
                                                   1
(ECF No. 48). 4 For the reasons discussed below, petitioner's motion for reconsideration is
DENIED.

    I.       Background

        The facts and procedural history of this case are thoroughly documented in the
undersigned's Decision dismissing the petition for failure to prosecute and insufficient proof;
they are incorporated by reference here. Decision at 1-3. Petitioner's motion for reconsideration
does not explain his failure to comply with past comi orders, nor does it offer new evidence.
Instead, the motion seems to make five primary arguments, reiterating many of the objections
petitioner has voiced throughout this litigation:

             •   Petitioner alleges that he has filed all available medical records. Mot. at 2.

             •   Petitioner alleges that respondent did not "review the accompanying documents to
                 determine whether all information necessary to enable respondent to evaluate the
                 merits of the claim has been filed" within 30 days after the filing of his petition.
                 Mot. at 2 (citing Vaccine Rule 4).

             •   Petitioner alleges that because the Decision was not issued within 240 days after
                 his petition was filed, the Decision was untimely. Mot. at 2-3.

             •   Petitioner alleges that the Pneumovax vaccine is, in fact, covered by the Vaccine
                 Act. Mot. at 3.

             •   Petitioner alleges that respondent submitted filings through Chad A. Readler, who
                 was not their attorney of record. Mot. at 4-5.

Petitioner filed a brief to supplement his motion for reconsideration on January 17, 2019. Suppl.
Filing dated Jan. 17, 2019 (ECF No. 52). This brief did not contain any substantively new
arguments or evidence.

        On January 22, 2019, respondent submitted a response to petitioner's motion. 5
Respondent's Response dated Jan. 22, 2019 (ECF No. 53). Respondent emphasizes that the
undersigned "did not err by requiring petitioner to file medical evidence to corroborate his
claim," concluding that "it was completely within [the undersigned's] discretion to dismiss this
case for failure to prosecute." Id. at 7, 9. Respondent also asserts that contrary to petitioner's

         4
         Petitioner submitted a single filing titled "Motion for Reconsideration/Review, En Banc
Review and Findings." For procedural purposes, the Clerk of the Court has docketed this filing
separately as a motion for reconsideration (ECF No. 48) and a motion for review (ECF No. 49).

         5
         Respondent's submission was docketed as a response to petitioner's motion for review.
However, because petitioner submitted a single document as a combined motion for review and
motion for reconsideration, the undersigned accepts respondent's filing as a response to both
motions.
                                                   2
claims, he conducted a preliminary review of the petition and filed a timely response, in
compliance with Vaccine Rule 4 and the orders of the assigned special master. Id. at 9-10.

    II.       Analysis

              a. Standards for Reconsideration

        Vaccine Rule 10(e), which governs motions for reconsideration, provides, "[ e]ither party
may file a motion for reconsideration of the special master's decision within 21 days after the
issuance of the decision .... " Vaccine Rule lO(e)(l). A party seeking reconsideration "must
support the motion by a showing of extraordinary circumstances which justify relief." Fru-Con
Constr. Corp. v. United States, 44 Fed. Cl. 298, 300 (1999). The motion for reconsideration
"must be based 'upon manifest error of law, or mistake of fact, and is not intended to give an
unhappy litigant an additional chance to sway the court."' Prati v. United States, 82 Fed. Cl.
373, 376 (2008) (quoting Fru-Con Constr. Corp., 44 Fed. Cl. at 300).

        "A court may grant [a motion for reconsideration] when the movant shows '(1) that an
intervening change in the controlling law has occurred; (2) that previously unavailable evidence
is now available; or 3) that the motion is necessary to prevent manifest injustice." System Fuels,
Inc. v. United States, 79 Fed. Cl 182, 184 (2007) (quoting Amber Resources Co. v. United
States, 78 Fed. Cl. 508, 514 (2007)). Granting such relief requires "a showing of extraordinary
circumstances." Caldwell v. United States, 391 F.3d 1226, 1235 (Fed. Cir. 2004) (citation
omitted), cert. denied, 546 U.S. 826 (2005). Special masters have the discretion to grant a
motion for reconsideration if doing so would be in the "interest of justice." Vaccine Rule
10(e)(3).

        Petitioner does not claim that there has been an intervening change in the law, nor does
he contend that there is new evidence that was unavailable at the time the undersigned issued the
Decision. Thus, to prevail on his motion for reconsideration, petitioner must demonstrate that
the denial of his motion would result in manifest injustice. See Hall v. Sec'y of Health & Human
Servs., 93 Fed. Cl. 239,251 (2010), affd, 640 F.3d 1351 (Fed. Cir. 2011); Vaccine Rule
10(e)(3). As noted by other special masters, there is little case law interpreting Vaccine Rule
10(e)(3) beyond the conclusion that it is within the special master's discretion to decide what the
"interest of justice" is in a given case. See Krakow v. Sec'y of Health & Human Servs., No 03-
632V, 2010 WL 5572074, at *3 (Fed. Cl. Spec. Mstr. Jan. 10, 2011) (granting reconsideration of
motion to dismiss case for failure to prosecute).

             b. Petitioner's Motion for Reconsideration

          The undersigned will consider each of petitioner's primary allegations in turn:

                i.   Petitioner alleges that he has filed all available medical records.

          Assuming, arguendo, that petitioner has indeed filed all available medical records, he has
still failed to demonstrate that his injury persisted for longer than six months. As the
undersigned discussed in her Rule 5 Order, "Although petitioner has stated that he still suffers


                                                   3
from headaches, stomachaches, elevated blood sugar levels, and difficulty gaining weight, none
of these symptoms are documented in recent medical records. This statement, without
documentation from a medical provider, is insufficient to meet the statutory six-month
requirement." Rule 5 Order dated June 28, 2018 (ECF No. 44) at 3 (internal citation omitted);
see also Decision at 2.

              ii.   Petitioner alleges that respondent did not "review the accompanying
                    documents to determine whether all information necessary to enable
                    respondent to evaluate the merits of the claim has been filed" within 30
                    days after the filing of his petition.

         During a status conference on August 3, 2017, one month after the petition was filed,
Special Master Moran instructed petitioner on the medical records that remained to be filed. See
Order dated Aug. 4, 2017 (ECF No. 11). Moreover, respondent submitted his Rule 4(c) Report
on March 30, 2018, further describing deficiencies in petitioner's filings. See Rule 4(c) Report
(ECF No. 33). Particularly in light of these filings, the undersigned is not aware how
respondent's alleged failure to comply with Vaccine Rule 4 could have hindered petitioner's
ability to prosecute his case, or how it constitutes "manifest injustice."

            iii.    Petitioner alleges that because the Decision was not issued within 240
                    days after his petition was filed, the Decision was untimely.

    The Vaccine Act provides:

       [if] a special master fails to make a decision on a petition within the 240 days
       prescribed by subsection (d)(3)(A)(ii) ... , the special master or court shall notify
       the petitioner under such petition than the petitioner may withdraw the petition ...
       or the petitioner may choose ... to have the petitioner remain before the special
       master or court.

§ 300aa-12(g). The Vaccine Act further states that petitioner may file "a notice in writing
choosing to continue or withdraw the petition," and that "[s]uch a notice shall be filed within 30
days of the provision of the notice required by[§ 300aa-12(g)]." § 300aa-21(b).

        On February 28, 2018, petitioner was informed that the statutory 240-day time period for
the special master's issuance of a decision in his case had expired. See Formal Notice dated Feb.
28, 2018 (ECF No. 24). Although petitioner was notified that he could withdraw his petition
within 30 days of the notice, he chose not to do so. See id. The fact that petitioner failed to
exercise his statutory right to withdraw his petition, by the statutory deadline, does not affect the
validity of the undersigned's Decision.

             iv.    Petitioner alleges that the Pneumovax vaccine is, in fact, covered by the
                    Vaccine Act.

      As noted in the undersigned's Decision, the Pneumovax vaccine is not covered by the
Vaccine Act. See§ 300aa-1 l(c)(l)(A); Cielencki v. Sec'y of Health & Human Servs., No. 15-


                                                  4
632V, 2015 WL 10767150, at *3 (Fed. Cl. Spec. Mstr. Dec. 22, 2015) (dismissing claim
involving Pneumovax vaccine). The URL provided in petitioner's motion provides no evidence
to the contrary. See Mot. at 3.

               v.   Petitioner alleges that respondent submitted filings through Chad A.
                    Readier, who was not their attorney of record.

        Petitioner has made a number of previous complaints that respondent has communicated
through "non appearance" attorneys. See, e.g., Pet. Mot. dated May 14, 2018 (ECF No. 41); Pet.
Mot. dated Dec. 18, 2017 (ECF No . 20). As the undersigned has explained in the past, the fact
that Mr. Readier is listed as Acting Assistant Attorney General on respondent's filings does not
imply that he has improperly acted as the attorney of record. See Order Denying Mot. for
Recusal dated June 6, 2018 (ECF No. 42) at 2.

   III.      Conclusion

        The undersigned allowed petitioner over a year to file all necessary medical records, and
she offered petitioner a number of opportunities to discuss his claim during status conferences.
Her Decision thoroughly documents petitioner's repeated failure to follow Court orders and his
inability to establish any of the Al then prongs by preponderant evidence. Given the facts of this
case and the history of the litigation, petitioner has not demonstrated that the Decision
contravenes the "interest of justice."

       For the reasons stated above, the undersigned hereby DENIES petitioner's motion for
reconsideration.


          IT IS SO ORDERED.


          Dated: ;) -   7- ia D/9          -----/Zo-- v , ,,   ~CVL~ c.
                                             Nora Beth Dorsey
                                             Chief Special Master                    u "-. _
                                                                                      ~
                                                                                     e'




                                                 5
