Michele Y. Terran, as Legal Representative of Julie F. Terran, a Minor v. Secretary of Health and Human Services

PLAGER, Circuit Judge,

dissenting.

Under the United States Constitution, Congress may legislatively declare the rights and liabilities of its citizens in one, and only one, way, and that is by a “Bill which shall have passed the House of Representatives and the Senate, [and] shall, before it becomes a Law, be presented to the President of the United States” for approval or veto. U.S. Const. art. I, § 7, cl. 2 (“the Presentment Clause”); see also Clinton v. New York, 524 U.S. 417 , 118 S.Ct. 2091 , 141 L.Ed.2d 393 (1998). Neither one House of Congress acting alone, see INS v. Chadha, 462 U.S. 919 , 103 S.Ct. 2764 , 77 L.Ed.2d 317 (1983), nor the President or other Executive Branch official may constitutionally enact, amend, or repeal statutes. See Clinton, 524 U.S. at 438 , 118 S.Ct. 2091 (“There is no provision in the Constitution that authorizes the President to enact, to amend, or to repeal statutes.”).

In this case, Congress purported to provide for the amendment of existing legislation, which was otherwise valid and enforceable by the courts of the United States, in a manner different from that provided in the Constitution, namely by authorizing an Executive Branch official to do it. That effort must necessarily fail. The majority’s valiant effort to uphold the purported amended legislation must also fail, since no amount of verbal adroitness can change the reality of what happened. I respectfully dissent.

1.

The essentials of this case are simple. In 1986 Congress enacted legislation, approved by the President, which entitled persons injured by certain childhood vaccines to a financial recovery paid from the Treasury of the United States. The legislation, inter alia, set out in detail the particulars of certain injuries caused by the specified vaccines and the evidence of their happening; if a person established those particulars, he or she was entitled to a recovery. The injuries thus described were known as “table injuries”, since the particulars were set out in the legislation in the form of a Vaccine Injury Table. See *1318 42 U.S.C. § 300aa-14(a) (1994). Under the legislation as enacted, the detailed provisions contained in the table remain in effect indefinitely, that is, no “sunset” or automatic termination provision was included in the legislation.

In a separate subsection of the legislation, § 300aa-14(c)(l)-(4), Congress purported to enable an Executive Branch officer, the Secretary of Health and Human Services, to amend the statute by changing the particulars contained in the table. The Secretary had authority “to modify” the table, § 300aa-14(c)(l); she could “add to, or delete from, the list of injuries, disabilities, illnesses, conditions, and deaths for which compensation may be provided ....” § 300aa-14(c)(3). No restraints were placed upon the Secretary’s exercise ■ of the power — the power could be exercised at the discretion of the Secretary, when and as the Secretary chose — other than procedural steps which required, among other things, that the Secretary first confer with her Advisory Commission on Childhood Vaccines, and that the action be in the form of a rulemaking.

Some years later, in 1995, the Secretary chose to exercise that power, and purportedly amended the statute. Plaintiff-Appellant in this case alleges that she would be entitled to an award under the terms of the Congressionally-enaeted table, but that under the table as amended by the Secretary she is not so entitled. She challenges the application of the amended statute to her case.

Given the clarity with which the Constitution speaks to this question, and the Supreme Court’s unequivocal honoring of the Presentment Clause in Chadha and Clinton> one might suppose that this would be a not-difficult case to decide.’ The majority, however, seeks to find a way around the Constitution, and it is to that effort that I now turn.

2.

As a preliminary matter, I agree with the result reached by the majority in Part IIA of its opinion, i.e., that the Court of Federal Claims has jurisdiction to adjudicate Terran’s constitutional challenges to the Vaccine Act, though I cannot join the majority’s convoluted analysis in reaching that conclusion. The majority devotes considerable energy to analyzing whether Terran’s claim is for money damages. The “money damages” requirement for claims before the Court of Federal Claims arises from that court’s jurisdiction under the Tucker Act. See, e.g., United States v. Mitchell, 463 U.S. 206, 216-17 , 103 S.Ct. 2961 , 77 L.Ed.2d 580 (1983); United States v. Testan, 424 U.S. 392, 398 , 96 S.Ct. 948 , 47 L.Ed.2d 114 (1976). While it is . true that the Court of Federal Claims is a court of limited jurisdiction, the Tucker Act is not the only statute expressly granting that court jurisdiction.

As the majority seems to recognize, slip op. at 1314, the Vaccine Act itself provides the Court of Federal Claims with jurisdiction to determine whether Terran is entitled to compensation and the amount of such compensation. See 42 U.S.C. § 300aa-12(a) (1994); Beck v. Secretary of the Dep’t of Health and Human Servs., 924 F.2d 1029, 1036 (Fed.Cir.1991). This grant of jurisdiction is independent of any jurisdictional grant under the Tucker Act. It is therefore unnecessary to consider, as the Court of Federal Claims did, whether Terran’s constitutional challenge to the Vaccine Act is based on a “money-mandating provision” of the Constitution. The only question we need address is whether in exercising its jurisdiction under the Vaccine Act, the Court of Federal Claims may properly consider the constitutional issues presented.

The Court of Federal Claims has jurisdiction “to determine if a petitioner ... is entitled to compensation under the [National Vaccine Injury Compensation] Program.” 42 U.S.C. § 300aa-12(a). Terran raises her constitutional challenge as part of a claim for compensation over which the Court of Federal Claims clearly has jurisdiction. Resolution of that constitutional challenge directly impacts the determina *1319 tion of whether Terran is entitled to compensation. As the majority correctly concludes, the Vaccine Act gives the Court of Federal Claims the power that is necessary to decide the issue of Terran’s compensation, including the power to address the constitutional challenge to the Vaccine Act. See Beck, 924 F.2d at 1036 ; see also Rodriguez v. Secretary of the Dept, of Health and Human Services, 34 Fed.Cl. 57 (1995) (addressing petitioner’s claim that special master’s interpretation of § 11(c)(1)(D)® of the Vaccine Act violates the Equal Protection clause of the Constitution), ajfd sub nom. Black v. Secretary of Health and Human Services, 93 F.3d 781 (Fed.Cir.1996).

Moving on to Part IIB of its opinion, the majority there considers at some length whether 42 U.S.C. § 300aa-32 precludes the Court of Federal Claims from reviewing Terran’s constitutional claims; the majority concludes it does not. Again, I agree with the majority’s conclusion, but I get there simply because § 300aa-32 is irrelevant to the constitutional challenges at issue here.

By its plain language, § 300aa-32 provides for the review of a regulation promulgated under the Vaccine Act. The purpose of the 60-day review period limitation is to preclude a later-filed challenge to the correctness of the administrative action, for example, a challenge that the Secretary did not follow proper rulemaking procedures in creating the revised table, or exceeded the scope of authority the statute granted. That type of challenge was often raised in enforcement actions in other areas, environmental law being an example, until Congress inserted counterparts of § 300aa-32 into the appropriate statutes.

Terran’s claim in this case is not a challenge to the manner of promulgation or to the content itself of the regulation that amended the 1995 Table. It is instead a challenge to the underlying enabling statute, 42 U.S.C. § 300aa-14(c), that purports to give the Secretary the power to promulgate the regulation at all. Section 300aa-32 does not govern review of the statute. Thus, I find the majority’s discussion of whether § 300aa-32 is intended to be always permissive (which I think is simply wrong), and the circumstances, if any, under which judicial review of a regulation beyond the 60-day period is proper, to be unnecessary to the decision in the case.

3.

The heart of my dissent lies in my disagreement with the majority’s conclusion in Part IIIA that 42 U.S.C. § 300aa-14(c) does not violate the Presentment Clause of the Constitution. (The majority opinion initially states the question to be one of “separation of powers principles,” slip op. at 1306, but, as the Supreme Court observed in Clinton, 524 U.S. at 448 , 118 S.Ct. 2091 , the question of compliance with Art. I, § 7 is a distinctly different question from the question of whether a statute “impermissibly disrupts the balance of powers among the three branches of government.”)

Congress enacted into law the initial version of the Vaccine Injury Table by following proper enactment and presentment procedures in accordance with Article I of the Constitution. As noted, the Supreme Court as recently as last year has made clear that the Presentment Clause requires that any modification to a statute must follow those same procedures. See Clinton, 524 U.S. at 448-49 , 118 S.Ct. 2091 . Because 42 U.S.C. § 300aa-14(c) gives the Secretary unilateral power to amend the Vaccine Injury Table without complying with the bicameralism and presentment procedures required for legislative acts, the statute violates the Presentment Clause.

The majority holds that the Vaccine Act does not authorize the Secretary to amend the original Vaccine Injury Table, but that it merely authorizes the creation of an entirely new table by regulation, the new table of course superseding the old one. That is little more than a transparent attempt to find a verbal formula for disguising the reality of what transpired. The *1320 Vaccine Act explicitly provides that the “Secretary may promulgate regulations to modify ... the Vaccine Injury Table.” 42 U.S.C. § 300aa-14(c) (1994) (emphasis added). Despite this admission by Congress that it intended to give the Secretary the power to amend the Vaccine Injury Table, the majority concludes that no amendment occurred because the initial Vaccine Injury Table remains codified in its original form.

Indeed, the crux of the majority’s argument derives from the following syllogism: “This new table applies only prospectively.... The Initial Table remains codified and unaltered, and continues to apply to all petitions filed before the revision. Therefore, the Initial Table is not amended.” Slip op. at 1313. The unstated major premise is that an amendment that leaves the earlier provision unrepealed means that the earlier provision is not “amended.” It does not require much analysis to recognize the fundamental flaw in that argument.

When Congress changes an existing law, for example by increasing the amount of a penalty for prohibited conduct, or by modifying the criteria for an entitlement, it is almost invariably the case that the provisions of the original statute remain in effect for all cases arising prior to the effective date of the amendment, and that the changed requirements apply only prospectively, to newly-arising matters. As the Supreme Court has admonished, “retroac-tivity [of legislation] is not favored in the law.” Landgraf v. USI Film Products, 511 U.S. 244, 264 , 114 S.Ct. 1483 , 128 L.Ed.2d 229 (1994), with the result that Congress rarely makes such changes retroactive. Under the majority’s syllogistic reasoning, it would follow that Congress does not “amend” a statute when it makes changes in existing legislation, and leaves the earlier enactment unrepealed; only in the rare case of total repeal with retroac-tivity is the change an “amendment.” That conclusion takes generally understood legal terminology and stands it on its head.

Putting aside such verbal obfuscation, what is clear is that, as a result of the regulation promulgated by the Secretary in 1995, the initial Vaccine Injury Table is no longer legally effective with regard to cases arising after the effective date of the amendment. The Secretary has deleted a provision which, but for the deletion, would be available for the benefit of persons like Terran. Absent the regulation, the original Vaccine Injury Table would continue to apply to Terran and all others similarly situated; with the regulatorily-amended Table, only the amended table applies to those who file their petitions after the effective date of the regulation.

It matters not whether we say, as the majority says, that the original Vaccine Injury Table was not amended, but that just a new Table was put into law, or whether we acknowledge the obvious reality that the then-existing Table was effectively amended by the regulation. The result is the same — the statutory table as enacted by Congress does not apply to petitions filed after the Secretary’s regulation took effect. To paraphrase the words the Supreme Court used in Clinton , “[i]n both legal and practical effect, the [Secretary] has amended [an Act] of Congress by repealing a portion of [it],” and “[t]he cancellation of one section of a statute may be the functional equivalent of a partial repeal even if a portion of the section is not canceled.” Clinton, 524 U.S. at 438, 441 , 118 S.Ct. 2091 .

In further support of its judgment, the majority suggests that the statute by inference has a “sunset” provision. That simply is not the case. Congress did not decide when the initial Vaccine Injury Table would become ineffective, either by specifying a date or by defining a particular event that would render the initial table ineffective. To suggest, as the majority does, that the Secretary’s action is an event selected by Congress to trigger the effective repeal of the initial Vaccine Injury Table is nothing more than circular reasoning, for it is the Secretary’s action in *1321 amending the table that itself “repeals” the initial Vaccine Injury Table.

Congress could have chosen to write the statute differently. If Congress in the Vaccine Act had specified certain external events upon the happening of which the enacted table became no longer effective, and at which time the Secretary was to create a revised injury table, and left to the Secretary the determination of when the specified events in fact occurred, the analysis might be different. See Clinton, 524 U.S. at 445 , 118 S.Ct. 2091 (explaining that the Tariff Act of 1890 was upheld in Field v. Clark, 143 U.S. 649 , 12 S.Ct. 495 , 36 L.Ed. 294 (1892), because “Congress itself made the decision to suspend or repeal the particular provisions at issue upon the occurrence of particular events subsequent to enactment, and it left only the determination of whether such events occurred up to the President”). But we are not presented with such a situation. The Vaccine Act gives the Secretary complete authority to modify the table, unrestrained by any prerequisite conditions established by Congress, beyond those procedural steps alluded to earlier.

As an alternative, in enacting the Vaccine Act Congress, presumably without violating the Constitution, might have established appropriate criteria under which the Secretary was given authority to create the initial table through an administrative rulemaking procedure, along with the power to revise the table from time to time consistent with those criteria. Congress, however, did not choose this route either, and instead, for whatever reason, included the initial Vaccine Injury Table in the statute itself. Having done so, Congress can render the enacted statute inapplicable to those who come within it only by repealing or amending the statute in compliance with the bicameralism and presentment procedures of Article I of the Constitution.

The majority’s statement, slip op. at 1313, that Congress intended that the.Sec-retarially-revised table would supersede its statutory table is irrelevant. See Clinton, 524 U.S. at 445-46 , 118 S.Ct. 2091 (“The fact that Congress intended such a result is of no moment”). Thus there is little question that § 300aa-14(c), as Congress wrote it and which purports to empower the Secretary to modify the statutorily-created Vaccine Injury Table, violates the Presentment Clause of the Constitution. 1

4.

Words have consequences. The Constitution’s constraints have served us well. Judges regularly attend to the constraints the Constitution places upon their own performance, such as the requirement for a genuine “case” or “controversy” before a federal court may exercise judicial power. See U.S. Const, art. Ill, § 2. When a case is before us, it is our obligation under the law to ensure that the other Branches equally conform to the Constitution’s mandates, even when doing otherwise would seem to be simpler or more convenient.

Because I would hold that the 1995 attempt by the Secretary to revise the initial Vaccine Injury Table is of no legal effect, I would not reach Plaintiffs alternative theory of causation-in-fact which the majority addresses in Part IV of its opinion. Instead, I would vacate the judgment of the Court of Federal Claims, and remand the case to that court with instructions to analyze Terran’s claims under the legislatively-enacted table in 42 U.S.C. § 300aa-14(a), and to process her claims accordingly. I respectfully dissent from the contrary conclusion reached by the majority.

. Because I conclude that 42 U.S.C. § 300aa-14(c) clearly violates the Presentment Clause, I find it unnecessary to address the more difficult question of whether the statute as written complies with the minimum requirements for a valid delegation of legislative power, the issue considered by the majority in Part IIIB. Therefore, I do not join that part of the majority's opinion.