Before Plager, Lourie and Clevenger, Circuit Judges.
The opinion of the court was delivered by: Clevenger, Circuit Judge.
Opinion for the court filed by Circuit Judge CLEVENGER. Dissenting Opinion filed by Circuit Judge PLAGER.
Frank and Lisa O'Connell ("the O'Connells") appeal from the decision of the United States Court of Federal Claims affirming the Special Master's denial of the O'Connells' petition for compensation under the National Child Vaccine Injury Act of 1986 (the "Vaccine Act"). See O'Connell v. Secretary oF Health & Human Servs., No. 96-63V (Fed. Cl. May 13, 1998). We affirm.
On February 5, 1996, the O'Connells petitioned for compensation under the Vaccine Act for two injuries, residual seizure disorder ("RSD") and encephalopathy, allegedly sustained by Kelli-Ann O'Connell as a result of a diphtheria-pertussis-tetanus ("DPT") vaccination administered on February 9, 1991. Under the regulations in place at the time the O'Connells filed their petition, Kelli-Ann's conditions did not qualify for compensation under the Vaccine Injury Table. In particular, the Vaccine Injury Table that was applied to the O'Connells' petition became effective on March 10, 1995 (the "1995 Table"), and excludes RSD from the list of injuries associated with DPT vaccines. See 42 C.F.R. § 100.3 (1996). The 1995 Table also narrowed the definition of an encephalopathy. Compare id. § 100.3(b)(2) (definition of encephalopathy under 1995 Table) with 42 U.S.C. § 300aa-14((b)(3)(A) (1994) (definition of encephalopathy at the time the Vaccine Act was enacted). As a result, the O'Connells' petition sought to show that the DPT vaccination caused in fact Kelli-Ann's conditions. See O'Connell v. Secretary of Health & Human Servs., No. 96-63V, slip op. at 2 & n.2 (Fed. Cl. (Special Master) Feb. 2, 1998).
The Special Master, after a review of the facts, concluded that the O'Connells had failed to prove causation in fact and dismissed the petition on the merits. See id. at 21, 24. On appeal to the Court of Federal Claims, the O'Connells first argued that the Special Master incorrectly applied the standard for causation in fact. This argument was rejected by the Court of Federal Claims. See O'Connell, No. 96-63V, slip op. at 4-5 (Fed. Cl. May 13, 1998). The O'Connells also argued that the Special Master erred in declining to apply the Vaccine Injury Table as it existed before the changes effected in March 1995. In essence, the O'Connells sought a ruling that the changed Table is unconstitutional and therefore unenforceable, and that the O'Connells' petition should therefore be processed by the Special Master under the old Table.
The Court of Federal Claims rejected the O'Connells' argument, and they timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3) and 42 U.S.C. § 300aa-12(f).
In this court, the O'Connells do not argue that their petition could prevail under the 1995 Table applied by the Special Master. Instead, they renew their constitutional challenges to the 1995 Table, asserting that the creation of that Table violates the Presentment Clause of the Constitution, see Art. I, § 7, cl. 2, and additionally violates separation of powers principles.
In a companion case, Terran v. Secretary of Health and Human Servs., No. 98-5161 (Fed. Cir. Oct. 27, 1999), we held that the section of the Vaccine Act authorizing the Secretary of Health and Human Services (the "Secretary") to promulgate the 1995 Table does not violate the Constitution, and therefore that the 1995 Table is in full force and effect. See id., slip op. at 22. Because the O'Connells make no argument that their petition can prevail under the 1995 Table, we have no choice but to affirm the decision of the Court of Federal Claims that affirmed the dismissal of the O'Connells' petition by the Special Master.
The Government also contends that the O'Connells' claim here is barred by principles of res judicata based on an earlier decision by our sister court, the United States Court of Appeals for the First Circuit. See O'Connell v. Shalala, 79 F.3d 170 (1st Cir. 1996). In that case, the O'Connells challenged the validity of the 1995 Table on the ground that the Secretary's changes to the Vaccine Injury Table exceeded the authority granted to her by Congress, but did not raise a constitutional challenge to the 1995 Table. See id. at 173 & n.2, 175. Because the O'Connells' argument fails on the merits, see Terran, No. 98-5161, slip op. at 22, we need not, and do not, decide this issue.