Case: 21-2276 Document: 31 Page: 1 Filed: 04/11/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SAMUEL WEBB,
Petitioner-Appellant
v.
SECRETARY OF HEALTH AND HUMAN
SERVICES,
Respondent-Appellee
______________________
2021-2276
______________________
Appeal from the United States Court of Federal Claims
in No. 1:15-vv-00803-VJW, Senior Judge Victor J. Wolski.
______________________
Decided: April 11, 2022
______________________
SAMUEL WEBB, Tucson, AZ, pro se.
JULIA COLLISON, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent-appellee. Also represented by
BRIAN M. BOYNTON, C. SALVATORE D'ALESSIO, GABRIELLE
M. FIELDING, HEATHER LYNN PEARLMAN.
______________________
Before DYK, REYNA, and TARANTO, Circuit Judges.
Case: 21-2276 Document: 31 Page: 2 Filed: 04/11/2022
2 WEBB v. HHS
PER CURIAM.
Mr. Samuel Webb appeals a decision by the U.S. Court
of Federal Claims sustaining the special master’s decision
dismissing Mr. Webb’s petition for compensation for a vac-
cine injury. Mr. Webb argues that the special master
abused his discretion by failing to conduct a status confer-
ence after the government submitted its supplemental Vac-
cine Rule 4(c) report and that the special master acted
arbitrarily and capriciously in finding that Mr. Webb’s
Bell’s palsy symptoms began before his November 20, 2012
flu vaccine. For the reasons explained below, we affirm.
BACKGROUND
I
In October 2011, Mr. Webb developed Bell’s palsy on
his right side. Appx 29. In September and October of 2012,
Mr. Webb submitted several Health Needs Requests to the
Maricopa County Jail, where he was incarcerated. See
Appx 59–62. In one request dated September 25, 2012,
Mr. Webb sought a psychological evaluation. Appx 61. In
three subsequent requests dated October 19, 2012, October
24, 2012, and October 29, 2012, Mr. Webb stated that he
could not close his eye because of his Bell’s palsy, and so he
asked for “artificial tear solution” and “perforated bondage
tape” so that he could “tape [his] eye shut” to improve his
sleep. Appx 62; see also Appx 59–60 (repeating request for
tape).
Meanwhile, on October 9, 2012, Mr. Webb underwent
a routine medical examination to check his blood pressure.
Appx 35, 48. The medical report stated that Mr. Webb had
“no concerns/complaints” and showed no distress. Appx 35,
48. On November 12 and 13, 2012, Mr. Webb had his blood
drawn. Appx 35, 48. Like the October 9, 2012 medical rec-
ord, these records did not mention Bell’s palsy. See
Appx 35, 48.
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WEBB v. HHS 3
On November 20, 2012, Mr. Webb received a seasonal
flu vaccine. Appx 30. Mr. Webb returned to the doctor on
November 30, 2012. Appx 33. The medical record of that
appointment states that Mr. Webb informed the physician
that he had developed Bell’s palsy on September 21, 2012,
and that Mr. Webb did not submit a Health Needs Request
in relation to his symptoms because he thought nothing
could be done. Id. The record also stated that Mr. Webb
believed the Bell’s palsy occurred due to the stress of his
trial in early September 2012, and that his symptoms had
improved since that time. Id.
II
On July 29, 2015, Mr. Webb filed a petition for compen-
sation under the National Childhood Vaccination Injury
Act, 42 U.S.C. §§ 300aa-10 to -34, in the U.S. Court of Fed-
eral Claims. Appx 2, 19. He alleged in his petition that he
received a flu vaccine on November 20, 2012, and that the
vaccine caused him to develop Bell’s palsy on his left side.
Appx 11, 19.
On August 31, 2015, Mr. Webb filed a statement alleg-
ing facts in support of his claim. See Appx 2, 28–32. He
alleged, among other things, that several days after receiv-
ing his November 20, 2012 vaccine, he began experiencing
Bell’s palsy on the left side of his face. Appx 30. He alleged
that he “went through the same experiences” on the left
side of his face that he had in previous months on the right
side of his face. Id. He alleged that his sentencing took
place on December 5, 2012, and that during the proceeding
the left side of his face was drooping, he was unable to close
his left eye, and his speech was impeded. Id. “Eventually,”
he alleged, his “movement came back and [he] regained mo-
tor function.” Id.
Mr. Webb also alleged that he received another sea-
sonal flu vaccine in 2013, and “[i]t was at th[at] time that
[he] became informed about the possibility that [his] Bell’s
palsy symptoms on the left side of [his] face were caused by
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4 WEBB v. HHS
a reaction to [his] seasonal flu shot.” Id. He later refused
his seasonal flu vaccine in 2014 on the belief that he had
experienced an “adverse reaction to the flu vaccination.”
Id. Despite that refusal, Mr. Webb alleged, he continued
having symptoms on the left side of his face. Appx 31. Ac-
cording to Mr. Webb’s statement, his “symptoms ha[d] ta-
pered off since [he] refused [his] 2014 seasonal flu
vaccination,” but he nevertheless continued to suffer paral-
ysis on both sides of his face. Id. His symptoms became
“infrequent and almost non-existent,” but he “still ha[d] not
recovered full movement of [his] face.” Appx 32. This af-
fected his daily life by impacting, for example, his ability to
eat and speak. Id.
On August 4, 2015, the special master set a deadline of
September 4, 2015, for Mr. Webb to submit outstanding ev-
idence, such as medical records and affidavits. Appx 12,
19. Mr. Webb obtained multiple extensions of time. See
Appx 2–3. On December 11, 2015, the special master held
a status conference. Appx 3. On January 19, 2016,
Mr. Webb filed a statement of completion. Appx 3–4.
On April 20, 2016, the government submitted a report
addressing the allegations and records submitted up to
that point. Appx 4; see also Rule 4(c) of the Vaccine Rules
of the United States Court of Federal Claims (“Vaccine
Rules”). On April 26, 2016, the special master held a status
conference. Id.
On July 20, 2016, Mr. Webb’s counsel moved to with-
draw from the case. Appx 5. Mr. Webb continued pro se
from that point forward. See id. On October 13, 2016, Mr.
Webb moved for leave to file an amended petition. Id. On
October 31, 2016, the special master held a status confer-
ence and subsequently set a deadline of December 16, 2016,
for Mr. Webb’s amended petition. Appx 5–6.
Mr. Webb again sought and obtained a series of exten-
sions. Appx 6–7. On October 4, 2017, he filed his amended
petition and a statement of completion. Appx 7. On
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WEBB v. HHS 5
March 20, 2018, the special master held a status confer-
ence. Id. During the conference, the special master di-
rected Mr. Webb to file his additional exhibits as soon as
possible and directed the government to file a supple-
mental report within 60 days after Mr. Webb’s submission.
Appx 7–8. On April 4, 2018, Mr. Webb submitted medical
literature. Appx 8. On June 4, 2018, the government sub-
mitted its supplemental report as well as a motion to dis-
miss. Id. Mr. Webb responded on June 25, 2018. Id.
On September 27, 2018, the special master issued a de-
cision granting the government’s motion. Webb v. Sec’y of
Health and Human Servs., No. 15-803V,
2018 WL 5292226,
at *1 (Fed. Cl. Sept. 27, 2018). The special master found
that the November 30, 2012 medical record was “precise,
cogent, and clear” and demonstrated that Mr. Webb devel-
oped Bell’s palsy on his left side months before his Novem-
ber 2012 flu vaccination. Id. at *7. The special master
observed that Mr. Webb’s other medical records and Health
Needs Requests were silent regarding his left-side Bell’s
palsy symptoms, but the special master rejected Mr.
Webb’s argument that this silence proved that he had no
such symptoms before his November 20, 2012 vaccination.
Id. at *7–8. Accordingly, the special master denied
Mr. Webb’s claim for lack of causation.
On July 29, 2021, the Court of Federal Claims issued
an order sustaining the special master’s decision. Webb v.
Sec’y of Health and Human Servs., No. 15-803V,
2021
WL 4077553, at *1 (Fed. Cl. July 29, 2021). The Court of
Federal Claims first determined that the special master
did not abuse its discretion or violate Mr. Webb’s due pro-
cess rights by failing to hold a status conference after the
government submitted its supplemental report.
Id. at
*6–7. The court reasoned that the Vaccine Rules do not
require any such status conference, and instead the matter
comes within the special master’s “wide discretion” to con-
duct proceedings. Id. at *7. Second, the court determined
that the special master did not act arbitrarily or
Case: 21-2276 Document: 31 Page: 6 Filed: 04/11/2022
6 WEBB v. HHS
capriciously in determining, based on the record evidence,
that Mr. Webb’s left-side Bell’s palsy began prior to his No-
vember 20, 2012 flu vaccine. Id. at *8. The court reasoned
that the special master considered all the relevant evidence
and articulated a rational basis for his finding. Id.
Mr. Webb appealed. We have jurisdiction pursuant to
42 U.S.C. § 300aa–12(f).
STANDARD OF REVIEW
Under the Vaccine Act, the Court of Federal Claims has
jurisdiction to “set aside any findings of fact or conclusion
of law of the special master found to be arbitrary, capri-
cious, an abuse of discretion, 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). We apply the same
standard when reviewing a decision by the Court of Fed-
eral Claims in a case brought under the Vaccine Act. Milik
v. Sec’y of Health and Human Servs.,
822 F.3d 1367, 1375
(Fed. Cir. 2016) (citation omitted).
We have explained that “[a]n abuse of discretion occurs
if the decision is clearly unreasonable, arbitrary, or fanci-
ful; is based on an erroneous conclusion of law; rests on
clearly erroneous fact findings; or involves a record that
contains no evidence on which the [decisionmaker] could
base its decision.” Cottingham on Behalf of K.C. v. Sec’y of
Health and Human Servs.,
971 F.3d 1337, 1345 (Fed. Cir.
2020). Further, with respect to the arbitrary and capri-
cious standard, “[i]f the special master ‘has considered the
relevant evidence of record, drawn plausible inferences and
articulated a rational basis for the decision,’ then reversi-
ble error is ‘extremely difficult to demonstrate.’” Milik,
822 F.3d at 1376 (quoting Hines on Behalf of Sevier v. Sec’y
of Health and Human Servs.,
940 F.2d 1518, 1528 (Fed.
Cir. 1991)). We “do not reweigh the factual evidence, as-
sess whether the special master correctly evaluated the ev-
idence, or examine the probative value of the evidence or
the credibility of the witnesses—these are all matters
Case: 21-2276 Document: 31 Page: 7 Filed: 04/11/2022
WEBB v. HHS 7
within the purview of the fact finder.” Porter v. Sec’y of
Health and Human Servs.,
663 F.3d 1242, 1249 (Fed.
Cir. 2011). Thus, “as long as the special master’s ‘conclu-
sion [is] based on evidence in the record that [is] not wholly
implausible, we are compelled to uphold that finding as not
being arbitrary or capricious.’” Milik, 822 F.3d at 1367
(quoting Cedillo v. Sec’y of Health and Human Servs.,
617 F.3d 1328, 1338 (Fed. Cir. 2010)).
DISCUSSION
I
Mr. Webb “presents here a factual dispute,” he states,
on whether he adequately showed a proximate temporal re-
lationship between vaccination and injury, as required un-
der Althen v. Secretary of Health and Human Services,
418 F.3d 1274, 1278 (Fed. Cir. 2005), to establish entitle-
ment to compensation for a vaccine injury. Appellant’s
Br. 10. In essence, Mr. Webb contends that the special
master improperly weighed competing evidence and, as a
result, wrongly found that Mr. Webb’s symptoms began be-
fore his vaccination and consequently that he is not enti-
tled to compensation under the Vaccine Act. Mr. Webb
specifically contends that “there is error in the [s]pecial
[m]aster’s analysis on divergent pieces of evidence.”
Id.
According to Mr. Webb, the special master erred by not
“lessen[ing] the weight,” on hearsay grounds, of an asser-
tion in a November 30, 2012 medical record.
Id. The record
asserts, in particular, that Mr. Webb had informed the ex-
amining physician that Mr. Webb’s left-side Bell’s palsy be-
gan in September 2012, i.e., prior to Mr. Webb’s
November 20, 2012 flu vaccine.
Id. In addition, Mr. Webb
contends that the special master erred by “ignoring” a
statement by a nurse during a routine visit on October 9,
2012—that Mr. Webb was not in distress and had no con-
cerns or complains—because this statement “negated the
existence of a condition” prior to his vaccination.
Id. at
10–11. Mr. Webb contends that the special master
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8 WEBB v. HHS
erroneously found that the October 9, 2012 visit did not in-
volve a physical examination, when instead the blood pres-
sure test conducted during that visit “did [involve] a
limited physical examination.” Id. at 12.
Mr. Webb asks us to engage in an activity beyond our
authority as constricted by statute and precedent—namely
to reweigh the evidence concerning when Mr. Webb devel-
oped his left-side Bell’s palsy. We decline to do so. See, e.g.,
Milik, 822 F.3d at 1376; Porter,
663 F.3d at 1249. The spe-
cial master expressly considered the evidence that
Mr. Webb contends should be reevaluated. See Webb,
2018 WL 5292226, at *4 (discussing the medical records re-
lating to his October 2012 and November 2012 appoint-
ments), *7 (discussing the alleged “blunder” in the
November 30, 2012 medical record). The special master
grappled with Mr. Webb’s arguments and articulated
sound reasons why Mr. Webb’s interpretation of the evi-
dence should be rejected in favor of the plain language of
the November 30, 2012 medical report. See id. at *7. Spe-
cifically, the November 30, 2012 record indicates a tem-
poral connection between the onset of Mr. Webb’s left-side
Bell’s palsy and his guilty verdict two weeks earlier. Id. In
addition, the fact that his medical reports from October and
November 2012 did not mention his Bell’s palsy symptoms
is “entirely consistent with Mr. Webb’s testimony that he
did not think that anything could be done and that he had
self-diagnosed the issue as the same Bell’s palsy that had
occurred on the right side of his face a year prior.” Id.
Mr. Webb does not persuasively explain how the special
master’s analysis on these points was untethered from a
factual basis.
The special master also considered Mr. Webb’s argu-
ment that the Health Needs Requests he filed suggest that
he had not experienced Bell’s palsy on his left side until
after his vaccine. Id. at *7–8. The special master reasoned,
however, that the absence of any specific mention of his
left-side Bell’s palsy in those records, again, was consistent
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WEBB v. HHS 9
with Mr. Webb’s own self-diagnosis and stated belief that
nothing could be done. Id. at *8. The special master thus
found that those records were insufficient to prove that
Mr. Webb’s symptoms did not begin until after his vaccina-
tion. Mr. Webb again fails to explain how the special mas-
ter’s interpretation of the evidence is without a sound
factual basis.
II
Mr. Webb also argues that the special master abused
his discretion in failing to conduct a status conference after
the government submitted its supplemental Vaccine
Rule 4(c) report. Appellant’s Br. 15. According to Mr.
Webb, the special master held an early status conference
on March 20, 2018, under Vaccine Rule 4(b). Id. at 16. At
the conference, Mr. Webb states, the special matter al-
lowed Mr. Webb to submit additional materials and or-
dered the respondent to submit a supplemental report 60
days later. Id. “This triggered [Mr. Webb’s] right to a Vac-
cine Rule 5 status conference as a matter of law.” Id. at 17.
According to Mr. Webb, however, the special master issued
his dismissal decision without conducting the required con-
ference and without warning Mr. Webb in violation of his
due process rights. Id. at 17–18. Mr. Webb contends that,
if the special master had conducted a conference as re-
quired, Mr. Webb would have discussed the October 9, 2012
and November 14, 2012 medical records that allegedly sug-
gest a lack of symptoms at those times. Id. at 19, 23.
The government responds that the special master sat-
isfied the requirements the Vaccine Rules. Appellee’s
Br. 17–21. Specifically, according to the government, the
special master met Vaccine Rule 5’s requirement for a “sta-
tus conference within 30 days after the filing of the re-
spondent’s report under Vaccine Rule 4(c)” by holding a
conference on April 26, 2016, following the respondent’s
submission of its Rule 4(c) report. Id. at 17. The govern-
ment asserts that nothing in the Vaccine Rules entitles
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10 WEBB v. HHS
Mr. Webb to a second conference under Vaccine Rule 5 fol-
lowing the government’s submission of a supplemental
Vaccine Rule 4(c) report. Id. at 18. The government also
points out that the special master held three additional sta-
tus conferences on July 25, 2016, October 31, 2016, and
March 20, 2018, and that the special master has “wide dis-
cretion” in conducting proceedings. Id. (citing Burns by
Burns v. Sec’y of Health and Human Servs.,
3 F.3d 415, 417
(Fed. Cir. 1993)). Further, the government contends that
Mr. Webb has not adequately shown that an additional sta-
tus conference would have affected the case, given that the
special master considered Mr. Webb’s argument that med-
ical records showed a lack of symptoms by virtue of their
silence.
Id. at 19–20.
We agree with the government and conclude that
Mr. Webb has not shown that the special master’s failure
to conduct a status conference following the government’s
submission of a supplemental report under Vaccine Rule
4(c) affected the case. Vaccine Rule 5(a) provides that
“[t]he special master will hold a status conference within
30 days after the filing of respondent’s report under Vac-
cine Rule 4(c).” 1 Here, the government submitted its Vac-
cine Rule 4(c) report on April 20, 2016, and the special
master held a status conference on April 26, 2016. Appx 4.
The special master held three additional status confer-
ences on July 25, 2016, October 31, 2016, and March 20,
2018. Appx 4–7. We do not reach the question whether
Vaccine Rule 5(a) imposes on a special master the
1 Vaccine Rule 4(c) requires the respondent to “file a
report setting forth a full and complete statement of its po-
sition as to why an award should or should not be granted”
and specifies that the report “must contain respondent’s
medical analysis of petitioner’s claims and must present
any legal arguments that the respondent may have in op-
position to the petition.”
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WEBB v. HHS 11
requirement to conduct a status conference after a respond-
ent submits a supplemental Vaccine Rule 4(c) report be-
cause we cannot conclude, on the record before us, that
Mr. Webb was deprived of a full and fair opportunity to pre-
sent his case. The special master granted Mr. Webb nu-
merous extensions of time, Appx 2–10, and, in his dismissal
decision, the special master expressly considered the evi-
dence that Mr. Webb contends he was prevented from pre-
senting, see Webb,
2018 WL 5292226, at *3 (discussing
medical records from Mr. Webb’s appointments in October
and November 2012 indicating no complaints by
Mr. Webb).
CONCLUSION
We conclude that the special master’s finding that
Mr. Webb’s Bell’s palsy began prior to his November 20,
2012 flu vaccination was not arbitrary or capricious. We
further conclude that the special master’s failure to con-
duct a status conference after the government submitted
its supplemental Vaccine Rule 4(c) report did not prejudice
Mr. Webb’s claim. We have considered Mr. Webb’s remain-
ing arguments but find them unpersuasive. Accordingly,
we affirm.
AFFIRMED
COSTS
No costs.
