author: MOORE, Circuit Judge.

text:
    Eilise MORIARTY, a Minor, BY her Parents and Natural Guardians, Marie Louise MORIARTY, and Stephen Moriarty, Petitioners-Appellants v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent-Appellee
    2015-5072
    United States Court of Appeals, Federal Circuit.
    Decided: April 6, 2016

      ClipfoRD John Shoemaker, Shoemaker and Associates, Vienna, VA, argued for petitioners-appellants.
    Glenn Alexander MacLeod, Vaccine/Torts Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee.' Also represented by Alexis B. Baboock, Cath-arine E. Reeves, Vincent J. Matanoski, Rupa Bhattaoharyya, Benjamin C. Mizer.
    Before MOORE, CLEVENGER, and REYNA, Circuit Judges.
   MOORE, Circuit Judge.

Marie Louise and Stephen Moriarty (the “Moriartys”), on behalf of their daughter Eilise, appeal the judgment of the Court of Federal Claims that affirmed a special master’s decision denying their petition for compensation under the National Childhood Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-l to -34 (2006) (“Vaccine Act”). We vacate and remand for further proceedings.

Background

Eilise Moriarty was born in August 1996. Prior to receiving the vaccination at issue in this case, Eilise had problems with her gross motor skills and language development and was diagnosed with hypotonia and developmental delay. 'But, following focused therapy to improve her fíne motor and speech skills, Eilise showed dramatic improvement by October 2000.

On January 2, 2001, Eilise received three vaccinations, including her second dose of the measles, mumps, and rubella (“MMR”) vaccine. Five days later, Eilise’s elder brother witnessed her arching her back, thrusting her head back, rolling her eyes, and her left side jerking in a strange, almost rhythmic pattern. Eilise’s brother did not know what was happening at the time, but, after having seen his sister have a number of seizures, he later testified that Eilise had a seizure that day. The Moriartys, who did not witness this seizure, noted that Eilise was feverish and lethargic that night. Eilise went to school the next day, but came home early and was running a fever in the late afternoon. Over the next two weeks, Eilise attended school but was tired and lethargic.

On January 23, 2001, Eilise had a grand mal seizure at school and was taken to a hospital. She had another seizure there the following day. She was transferred to another hospital where she underwent magnetic resonance imaging (“MRI”) and electroencephalogram (“EEG”) testing. Eilise’s MRI results were generally normal, but her EEG re-suits were abnormal, which the clinician noted were “consistent with a clinical diagnosis of epilepsy.” J.A. 600-01. Eilise continued to have seizures over the next two days while her doctors adjusted her medication. Once Eilise’s seizures were under control, she was discharged on January 28, 2001. Dr. Elgin, a pediatric neurologist, noted at Eilise’s discharge that she had a “new onset of seizure disorder” and that “there seem to be no precipitating factors causing the seizures.” J.A. 10. Two days later, Dr. Vining, a neurologist at Johns Hopkins Medical Center, examined Eilise and her medical records and noted that she had a new onset of seizures with unknown etiology.

Eilise’s seizures continued to' worsen throughout the spring of 2001. Eilise was hospitalized twice for seizures in March 2001. Some of these seizures were “drop attacks” where Eilise would drop her head suddenly and sometimes her entire body would collapse. During this time, Dr. Elgin expressed her concern in a clinic report that, while she showed some signs of improvement, Eilise may have Lennox-Gas-taut syndrome, which is a form of age-dependent epileptic encephalopathy. A second EEG test performed during one of Eilise’s March hospital stays was consistent with her having a clinical seizure disorder.

In April and May 2001, Eilise underwent various tests to determine her continued eligibility for special education services. Eilise’s test results showed that she was delayed, especially verbally. In June 2001, Eilise was admitted to Johns Hopkins Hospital because of intractable seizures and to begin a ketogenic diet. Eilise was a “super-responder” to the ketogenic diet, and in October 2001, Eilise became seizure-free. Eilise stayed on the ketogenic diet for over two years, remaining seizure-free, before tapering off the diet. Eilise’s treating neurologist during this time, Dr, Rubenstein, diagnosed her with “[s]tatic encephalopathy of unknown etiology” and “[i]ntractable seizures, resolved with keto-genic diet.” J.A. 396-97, 400-01.

In 2003, the Moriartys filed a petition under the Vaccine Act, alleging that Eilise suffered from autism as a result of her vaccinations. Eilise’s petition was grouped and stayed with other autism cases pending resolution of lead cases in the omnibus autism proceedings. While her petition was stayed, Eilise underwent examinations by a clinical psychologist, an occupational therapist, and a speech and language pathology clinician, all of whom noted in, the background sections of them reports that Eilise’s seizures were attributed to her second MMR vaccination. After decisions in the lead autism cases, the Moriartys amended Eilise’s petition to remove the reference to autism, alleging instead that Eilise suffered from a “seizure disorder and encephalopathy.” In May 2013, a special master held a hearing where Eilise’s parents and brother testified, along with Eilise’s expert, Dr. Shafrir, and the government’s expert, Dr. MacDonald (both pediatric neurologists). At the time of this hearing, Eilise was 17 years old but was reading at an “easy” fifth grade level and had third grade level math skills. During the post-hearing briefing process, Eilise’s petition was re-assigned to a new special master because the previous one’s service term ended. Both parties declined the new special master’s offer of another hearing.

The special master denied Eilise’s petition. He determined that the Moriartys failed to prove either the first or second prongs of our three part test in Althen v. Secretary of Health and Human Services, 418 F.3d 1274 (Fed. Cir. 2005), as required for Eilise’s “off-Table” injury. Regarding prong one, which requires a petitioner to show a medical theory causally connecting the vaccination at issue to the injury, Althen, 418 F.3d at 1278, the special master noted that the Moriartys’ theory connecting Eilise’s MMR vaccination to her condition had “evolved” over time, ultimately becoming that the MMR vaccine triggered an immune-mediated reaction that led to epileptic encephalopathy. Eilise’s expert, Dr. Shafrir, cited eight articles in his second report supporting this point, but the special master declined to consider the contents of that report or all of the cited articles because the Moriartys “did not elicit testimony from Dr. Shafrir about these articles as part of the direct examination.” J.A. 19. Instead, the special master limited his consideration to only two of the articles cited in Dr. Shafrir’s second expert report, on the basis that the government had cross-examined Dr. Shafrir about their contents. The special master also noted that the government’s expert, Dr. MacDonald, testified that “there is no evidence to support the conclusion that the MMR vaccine can cause autoimmune epileptic encephalopathy.” J.A. 22. Ultimately, the special master determined that Dr. Shafrir was unpersuasive, and consequently concluded that the Moriartys failed to meet Althen prong one by “failing] to demonstrate that the MMR vaccine can cause an autoimmune epileptic encephalopathy.” J.A. 22.

The special master also determined that the Moriartys failed to prove Althen prong two, which requires showing a logical sequence of cause and effect showing that the vaccination at issue was the reason for the injury. See Althen, 418 F.3d at 1278. He explained that, even if the Moriartys had met their burden to prove Althen prong one, they failed to show that Eilise suffered from autoimmune epileptic encephalopathy. He discounted Dr. Shafrir’s testimony that Eilise suffered from this condition because “Dr. Shafrir was relying upon his ‘clinical experience’ and the sequence of events in which the vaccination preceded Eilise’s January 7, 2001 seizure.” J.A. 24. Dr. MacDonald testified that patients with autoimmune epileptic encephalopathy “most commonly present with ‘lethargy, behavioral 'issues, confusion, speech loss, aphasia, a whole host of cognitive problems, balance problems, hemiparesis’ ” and that autoimmune encephalopathy “may include” various objective evidence such as “brain swelling on an MRI scan.” J.A. 24. The special master noted that “it is unusual for a disease not to have any typical clinical symptoms” and found Dr. MacDonald “more credible [than Dr. Shaf-rir] when he provided a list of clinical signs and diagnostic assessments” for autoimmune epileptic encephalopathy. J.A. 25. He cited Dr, MacDonald’s testimony that Eilise did not have autoimmune epileptic encephalopathy “because in his experience,' patients are ‘desperately sick’ if they have immune-mediated encephalopathies that result in seizures” and stated that “Dr. MacDonald’s suggestion that an autoimmune process is likely to cause changes on neuroimaging studies rings true.” Id. He found that the treatment ordered by Eilise’s treating doctors “tends to support Dr. MacDonald’s opinion,” id. and that, ultimately, Dr. MacDonald was more persuasive on this point than Dr. Shafrir.

-Finally, the special master determined that the Moriartys met their burden to prove Althen prong three by showing a proximate temporal relationship between Eilise’s vaccination and her injury. The Court of Federal Claims affirmed the special master’s decision. The Moriartys appeal. We have jurisdiction under 42 U.S.C. § 30Qaa-12(f).

Discussion

We review the Court of Federal Claims’ decisions in Vaccine Act cases de novo, applying the same standard used by that court to review the special master’s determination. Moberly ex rel. Moberly v. Sec’y of Health & Human Servs., 592 F.3d 1315, 1321 (Fed. Cir. 2010). We only set aside findings of fact or conclusions of law that are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 42 U.S.C. § 300aa-12(e)(2)(B); Moberly, 592 F.3d at 1321.

Under the Vaccine Act, there are two types of injuries: “Table” and “off-Table.” 42 U.S.C. §§ 300aa-11(e)(1)(C)(i), 300aa-ll(c)(l)(C)(ii). Causation is presumed for Table injuries when a specified condition follows the administration of a specified vaccine within a specified period of time. Moberly, 592 F.3d at 1321 (citing 42 U.S.C. §§ 300aa-11(c), 300aa-14). All other injuries are off-Table injuries where the petitioner has to prove causation by a preponderance of the evidence. Althen, 418 F.3d at 1278. The parties do not dispute that Eilise’s injury is in the off-Table category, meaning that, in order to receive compensation for Eilise’s injuries, the Moriartys must:

[S]how by preponderant evidence that the vaccination brought about her injury by providing: (1) a medical theory causally connecting the vaccination 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 a proximate temporal relationship between vaccination and injury.

Id. Only the first and second prongs of the Althen test are at issue in this appeal because the special master found, and the parties do not dispute, that the Moriartys proved the third prong of the Althen test.

I.

The Moriartys argue that the special master erred in determining that they did not meet their burden to prove Althen prongs one and two for numerous reasons. With respect to prong one, the Moriartys argue, inter alia, that the special master erred by not considering the whole of the record, which includes Dr, Shafrir’s second expert report and the scientific articles discussed in that report. The government counters that a review of the special master’s decision shows that he considered both Dr. Shafrir’s testimony and Dr. Shaf-rir’s filed expert reports and the literature cited therein. We hold, as explained below, that the special master erred by failing to consider the entire record, including Dr. Shafrir’s second expert report and the articles he cited, which is relevant medical and scientific evidence present in the record.

We start with the language of the statute, which instructs' that “[cjompensation shall be awarded under the [Vaccine Act] to a petitioner if the special master or court finds on the record as a whole” that the petitioner has met his evidentiary burdens. 42 U.S.C. § 300aa-13(a)(l). The statute then identifies matters to be considered by a special master in determining whether to award compensation, which include any medical records or reports “contained in the record regarding the nature, causation, and aggravation of the petitioner’s ... injury” as well as “all other relevant medical and scientific evidence contained in the record.” Id. § 300aa-13(b). This section also requires that special masters “shall consider the entire record and the course of the injury” when evaluating the weight to be afforded to any medical records or reports present in the record. Id. Thus, this statutory language indicates that a special master, reviewing the entire record of the case before him, must consider all relevant medical and scientific evidence contained in the record, which includes any relevant medical records or reports. It also instructs that the special master “shall” consider the entire record, which includes this relevant evidence, when assigning the weight given to particular evidence. With this statutory guidance in mind, we now turn to the specific issues in this case.

-The issue in this case is whether the special master erred by failing to consider relevant medical and scientific evidence contained in the record. We conclude that he has. The special master erred in concluding that he need only review evidence of record which was the subject of testimony at the hearing.

We generally presume that a special master considered the relevant record evidence even though he does not explicitly reference such evidence in his decision. Hazlehurst v. Sec’y of Health & Human Servs., 604 F.3d 1343, 1352 (Fed. Cir. 2010). However, this presumption does not apply, as in this case, where a special master indicates otherwise. Id. In his decision, the special master recognized that Dr. Shafrir discussed a connection between measles vaccination and encephalopathy in his second expert report. J.A. 18 n.ll. He noted that Dr. Shafrir relied on and discussed several articles in this report before stating the opinion that Eilise’s epileptic encephalopathy sits within the spectrum of MMR vaccine encephalopathy. Id. But the special master never considered Dr. Shaf-rir’s testimony contained in his second expert report in reaching his decision that the Moriartys had failed to prove Althen prong one. This report is relevant medical or scientific evidence and it is part of the record in this case. Instead, the special master refused to consider both Dr. Shaf-rir’s written testimony and the articles he relied upon in this report solely because he did not testify about them at the hearing. The special master wrote:

Although Dr. Shafrir had cited various articles in support of his opinion in his second report, exhibit 37, petitioners did not elicit testimony from Dr. Shafrir about these articles as part of the direct examination. When an expert does not explain the relevance of the article, a special master is not required to interpret the study without the benefit of the expert’s guidance. Moberly v. Sec’y of Health & Human Servs., 85 Fed.Cl. 571, 598 (2009), aff'd, 592 F.3d 1315 (Fed. Cir. 2010).

J.A. 19 (footnote omitted). The special master then addressed only two of the articles cited in Dr. Shafrir’s report because he found that the “lack of direct testimony from Dr. Shafrir was ameliorated to some extent because the Secretary and the presiding special master inquired about a few of the articles that Dr. Shafrir cited.” Id. There is thus no indication that the special master considered Dr. Shafrir’s written testimony in his second report and the articles cited therein, and there is, in fact, an affirmative indication that he did not do so.

Additional statements indicate that the special master did not consider Dr. Shaf-rir’s written testimony in his report or the articles he cited. In denying the Moriartys’ petition, the special master faulted them for “failfing] to demonstrate how the measles vaccine would cause an autoimmune epileptic encephalopathy,” and “elicit[ing] very little testimony about the basis for Dr. Shafrir’s opinion that the measles vaccine can cause an epileptic encephalopathy.” J.A. 18-19; see also J.A. 22 (“[Petitioners failed to demonstrate that the MMR vaccine can cause an autoimmune epileptic encephalopathy.”). And the special master relied on Dr. MacDonald’s testimony that “there is no evidence to support the conclusion that the MMR vaccine can cause autoimmune epileptic encephalopathy.” J.A. 22. The special master could not conclude that there is no evidence to support the conclusion that the MMR vaccine can cause autoimmune epileptic encephalopathy unless he was refusing to consider the articles cited by Dr. Shafrir in his second expert report. One such article, a five-page article by Weibel et ah, cited and explained by Dr. Shafrir in his second report, teaches the very point that the special master faulted the Moriartys for failing to present evidence to establish— that the MMR vaccine can cause autoiim-mune epileptic encephalopathy.

Weibel analyzed data from claims submitted to the National Vaccine Injury Compensation Program—claims such- as the one the Moriartys filed for Eilise. here. The objective of this article is “[t]o determine if there is evidence for a causal relationship between acute encephalopathy followed by permanent brain injury or death associated with the administration of ,.. [the] combined measles, mumps, and rubella vaccine.” J.A. 1459. The authors explain that encephalopathy has occurred in a number of cases following measles infection and that pleocytosis (i.e., an increase in the number of white blood cells in .the cerebral spinal fluid (“CSF”)) is reported in about 20% of these patients. White blood cells, also called leukocytes, are part of the immune system, and an increase in their number can indicate, inter alia, an immune system disorder or that the body is fighting off an infection. The authors go on to explain on the first page of this article that, in cases of post-measles-infection encephalopathy where pleocytosis is present, “the absence of a detectable virus in the brain is obscure, but may be suggestive of an autoimmune encephalopathy.” Id. (emphasis added). The authors then explain that prior case reports and review articles suggest' that similar neurologic complications can also follow administration of a measles vaccine. Thus, this article squarely addresses the same disease allegedly suffered by Eilise: autoimmune encephalopathy caused by administration of a measles vaccine.

Based on their results, the Weibel authors concluded that their data “suggests that a causal relationship between measles vaccine and encephalopathy may exist as a rare complication of measles immunization.” J.A. 1459. In reaching this conclusion, they found that most of the children who suffered acute encephalopathy after receiving a measles vaccine also exhibited seizures (34 out of 48) and nearly half developed a seizure disorder (23 out of 48). They also found that 11 of the 40 children (about 28%) for whom CSF analysis had been performed exhibited pleocytosis. In discussing their data, the authors state that “[mjanifestations of acute encephalopathy including loss of consciousness, ataxia, seizures, and pleocytosis among these 48 children is similar to the clinical features of acute encephalopathy described after natural measles and other live measles vaccines.” J.A. 1462 (emphasis added).

This article unmistakably talks about Eilise’s injury. It suggests that the measles vaccine can cause encephalopathy, and it reports that the clinical features of this encephalopathy include seizures (i.e., epileptic encephalopathies) in a subset of children. Moreover, the article explains that infection with the measles virus may cause an autoimmune encephalopathy in some situations, and that the medical evidence suggests that similar complications can occur following the measles vaccine. It also reports that, as with natural measles infections, measles vaccines are associated with pleocytosis in a subset of patients. It cannot be reasonably disputed that this article constitutes relevant scientific evidence.

Thus, to the extent that the special master’s recitation of Dr. MacDonald’s, testimony that there is “no evidence” to support causation is a factual finding, that factual finding is not supported—and, indeed, is contradicted—by the evidence in the record. In ignoring Weibel and Dr. Shafrir’s discussion of it in his second expert report, the special master ignored relevant record evidence that tends to prove the very point that the special master faulted the Moriartys for failing to prove.

There are three errors with respect to the special master’s assertion that he.was not required to consider the medical and scientific evidence of record. First, the special master’s holding that he could decline to review such evidence is legally erroneous. The special master held: “When an expert does not explain the relevance of the article, a special master is not required to interpret the study without the benefit of an expert’s guidance. Moberly v. Sec’y of Health & Human Servs., 85 Fed.Cl. 571, 598 (2009), aff'd, 592 F.3d 1315 (Fed. Cir. 2010).” The Moberly decision does not support the special master’s claim that he may refuse to consider relevant scientific and medical evidence of record merely because it is not explained by an expert. In fact, such a holding would be in direct conflict with the governing statute which requires the special master to consider all relevant medical and scientific evidence of record. As a preliminary matter, we note that the Federal Circuit decision in Moberly did not address this issue at all. The Court of Federal Claims decision explained only that “a special master may interpret and apply the conclusions of a medical study introduced into the record by a party, without the guidance of expert witnesses.” Moberly, 85 Fed.Cl. at 598. The Court of Federal Claims further stated although the special master may interpret a medical study without assistance of any expert, it is possible that a special master could conclude that “a particular study, or. aspects of a study” may not be able to be understood absent such assistance and in those circumstances a special master could decline to -interpret that portion of the study which he cannot understand. Id. Nowhere does the Court of Federal Claims (or our own court in its decision on the appeal) state that a special master is not required to consider a reference. Indeed, such' a holding would be contrary to the statutory requirement that the special master consider the record as a whole, including all relevant scientific and medical evidence.' A special master is required to consider all relevant medical and scientific evidence of record. And he is obligated to consider such evidence even if it is not explained by the testimony of an expert. However, if the technical complexity of a particular study is such that the relevance of the medical study or its particular findings cannot be understood by the special master without expert assistance that was not provided, then the special master may conclude that this evidence or portion of the evidence is entitled to little or no weight. And of course this sort of factual determination would be reviewed under the arbitrary and capricious standard on appeal. But the special master made no such finding in this case. In this ease, the special master found that he was not required to consider the articles which the expert, Dr. Shafrir, did not discuss in his oral testimony at the hearing. He stated that “[although Dr. Shafrir had cited various articles in support of his opinion in his second report, exhibit 37, petitioners did not elicit testimony from Dr. Shafrir about these articles as part of the direct examination.... The lack of direct testimony from Dr. Shafrir was ameliorated, to some extent because the Secretary and the presiding special master inquired about a few of the articles Dr. Shafrir cited.” J.A. 19. The special master then only discussed the articles which Dr. Shafrir had offered oral testimony about. The special master was not free to decline to review the other medical and scientific articles in the record simply because the expert had not testified to them on direct or cross examination.

Second, the special master was clearly erroneous in his assessment of which medical and scientific articles Dr. Shafrir had offered testimony on. Since the special master considered only oral testimony and not the expert report of Dr. Shafrir he clearly erred in his review of the Shafrir testimony. The special master did not consider Dr. Shafrir’s discussion of the relevance of these articles in his expert report. For example, Dr. Shafrir opined in his report “that Eilise’s epileptic encephalopathy sits within the spectrum of MMR vaccine encephalopathy” and explained that Weibel describes “one side of the spectrum” where measles vaccination was followed by permanent brain injury or death and that these authors concluded that the data they analyzed “suggests that causal relationship between measles vaccine and encephalopathy may exist as rare complications of measles immunization.” J.A. 1382. This is not a case where the expert simply cited a large number of references in a voluminous expert report without providing any guidance as to their relevance. The exact opposite is true—Dr. Shafrir’s second report is a total of eight pages and cites a total of eight articles. And the report does not simply cite the eight articles without explanation, leaving it to the special master to determine the articles’ relevance. Rather, it explains the relevance of each article and provides a numbered list summarizing Dr. Shafrir’s conclusions based on these articles. It cannot be said that Dr. Shafrir provided no guidance as to the relevance of these articles. He did, and he did it concisely in his second report.

We have never held that the relevance of particular articles cited by an expert in a report must be explained in the form of the expert’s testimony at a hearing in Vaccine Act cases. Indeed, such a holding would be contrary to the broad statutory instruction that the special master consider the entire record, including all relevant medical and scientific evidence. contained in that record, which includes expert reports such as. the one at issue here. Such a holding would also be contrary to the Court of Federal Claims’ Vaccine Rule 8, which provides that “[i]n receiving evidence, the special master will not be bound by common law or statutory rules of evidence but must consider all relevant and reliable evidence governed by principles of fundamental fairness to both parties.” Hazlehurst, 604 F.3d at 1349 (quoting Vaccine R. 8(b)(1) (2009)). Vaccine Rule 8 also explains the forms in which parties may present such evidence, namely “in the form -of documents, affidavits, or oral testimony which may be given in person or by telephone, videoconference, or videotape.” Vaccine R. 8(b)(2). As this rule instructs, traditional rules of admissibility of evidence that apply in district court actions do not apply in Vaccine Act proceedings. See Hazlehurst, 604 F.3d at 1349. The use of more flexible evidentiary rules, like the statutory instruction to consider the entire record, is consistent with the purpose of the Vaccine Act, which established “a no-fault compensation program ‘designed to work faster and with greater ease than the civil tort system.’” Bruesewitz v. Wyeth LLC, 562 U.S. 223, 228, 131 S.Ct. 1068, 179 L.Ed.2d 1 (2011) (quoting Shalala v. Whitecotton, 514 U.S. 268, 269, 115 S.Ct. 1477, 131 L.Ed.2d 374 (1995)).

Moreover, we have repeatedly endorsed a special master’s reliance on both the reports and testimony of expert witnesses. See, e.g., Hazlehurst, 604 F.3d at 1349-50 (finding no error in the “special master’s decision to admit and consider [an expert’s] testimony and reports”); Hibbard v. Sec’y of Health & Human Servs., 698 F.3d 1355, 1365 (Fed. Cir. 2012) (affirming a special master’s decision where an expert’s “report and testimony made clear” that whether the petitioner suffered a particular injury was a necessary component of her case). Here, the special master’s decision indicates that he did not consider either the explanations regarding the relevance of articles that Dr. Shafrir offered in his report or the articles themselves solely because Dr. Shafrir did not testify on these points at the hearing. In so doing, the special master erred.

Finally, contrary to the special master’s .assertion*, Dr. Shafrir testified on direct about at least three of the references cited in his second report when explaining his opinion regarding Eilise’s injury and its causation. For example, Dr. Shafrir testified on direct that:

So I think that what Eilise suffered, based on a case report that we also had that was published with similar onset of epileptic encephalopathy after the measles vaccine that the same immune mechanism that produced the [acute disseminated encephalomyelitis], that produced the cerebral ataxia, also it produced here a specific immune mediated epileptic encephalopathy on top of what she had before.

J.A. 210. And he further testified that “there is the entity of immune mediated epileptic encephalopathy exists in quite .significant numbers. We have specific support describing the same thing in others— I think it was a young man.” J.A. 211. In his second report, Dr. Shafrir cited and explained the relevance of a case report involving a child who “developed epileptic encephalopathy on day 14th [sic] after measles immunization.” J.A. 1384. He explained that this child “developed rapid nodding of the head” and, as his seizures increased in frequency, they “occasionally produced falls.” Id. He noted that this child was “finally diagnosed with Lennox-Gastaut syndrome” and that, even so, the child’s neuroimaging and other immunological studies were normal. Id. The case report identified the affected child as “a 2-year-old boy with Lennox-Gastaut syndrome,” J.A. 1488, consistent with Dr. Shafrir’s testimony that the case report involved a “young man.” Dr. Shafrir explained that this child had not responded as well as Eilise to various seizure medications. Dr. Shafrir similarly testified about at least two other articles cited and explained in his second expert report.

Admittedly, it would have been easier for the special master if Dr. Shafrir’s hearing testimony clearly referenced and discussed each of the articles. But that is not a basis for the special master to refuse to consider relevant scientific evidence in the record where the statutory language, and even the Vaccine Rules, instruct that this evidence must be considered. Given the statutory mandate to consider all relevant medical and scientific evidence of record, the special master’s refusal to do so is arbitrary and capricious.

The special master’s refusal to consider Dr. Shafrir’s second expert report and the references cited in it is particularly concerning here given the procedural history in this case. As noted above, a different special master actually held the hearing at which Dr. Shafrir testified. We generally give a special master “broad discretion in determining credibility because he saw the witnesses and heard the testimony.” Bradley v. Sec’y of Health & Human Servs., 991 F.2d 1570, 1575 (Fed. Cir. 1993). But here that general rule carries léss force because the special master who decided Eilise’s petition was not present at this hearing such that he, like us, only has the transcript of that proceeding on which to rely. See Oral Argument at 16:00-51, available at http://oralarguments.cafc. uscourts.gov/default.aspx?fl=2015-5072.mp 3. In such a situation, consideration of the entire record is particularly important in order to avoid potentially overlooking relevant material.

II.

As the special master noted, much of the evidence relevant to proving Althen prong one in this case is relevant to proving Althen prong two. Thus, the special master’s error in not considering relevant evidence with respect to Althen prong one affects his analysis with respect to prong two as well. Moreover, there is “no reason why evidence used to satisfy one of the [Althen] prongs cannot overlap to satisfy another prong.” Capizzano v. Sec’y of Health & Human Servs., 440 F.3d 1317, 1326 (Fed. Cir. 2006). And, in certain cases, a petitioner can prove a logical sequence of cause and effect between a vaccination and the injury [Althen prong two) with a physician’s opinion to that effect where the petitioner has proved that the vaccination can cause the injury (Althen prong one) and that the vaccination and injury have a close temporal proximity (Al-then prong three). Id. While we believe that this is one such case, we hesitate to determine that in the first instance. We therefore vacate the decision below and remand to allow the special master to consider the entire record including the relevant medical and scientific evidence, such as Dr. Shafrir’s second report and the articles cited therein.

Conolusion

For the foregoing reasons, we vacate the decision of Court of Federal Claims affirming the decision of the special master rejecting the Moriartys’ petition. We remand for further proceedings conste' tent with this opinion.

VACATED AND REMANDED

Costs

Costs to the Moriartys,

      , The Vaccine Injury Table, 42 U.S.C. § 300aa-14(b)(3)(A), defines “encephalopathy” as "any significant acquired abnormality of, or injury to, or impairment of function of the brain.”

      . Robert E. Weibel, Vito Caserta, David E. Benor, & Geoffrey Evans, Acute Encephalopathy Followed by Permanent Brain Injury or Death Associated With Further Attenuated Measles Vaccines: A Review of Claims Submitted to the Rational Vaccine Injury Compensation Program, 101(3) Pediatrics 383-87 (1998) ("Weibel"). We note that the authors all work at either the Division of Vaccine Injury Compensation, National Vaccine Injury Compensation Program within the Health Resources and Services Administration, or the Office of the General Counsel at the Department of Health and Human Services.

      . The study’s inclusion criteria were that the child suffered an acute encephalopathy of undetermined cause within two to fifteen days of receiving a measles-containing vaccine followed by permanent brain impairment or death.

      . The special master found there was oral testimony about only two of the articles. J.A. 19.

      . Tatsuya Ishikawa, Chizuko Ogino, & Sang-mi Chang, Case Report: Lennox-Gastaut syndrome after a further attenuated live measles vaccination, 21 Brain & Development 563-65 (1995).

      .Dr. Shafrir’s hearing testimony specifically mentioned “studies by Gibbs” discussing patients with EEG changes. J.A. 209. In his second report, Dr. Shafrir identified and explained the relevance of two articles by Gibbs et al., pointing out that two patients with measles developed a "convulsive” (i.e., epileptic) disorder as documented by their changing EEG test results. J.A. 1383-86. And, in fact, the special master recognized that Dr. Shafrir included at least one article by Gibbs in his second report because he relied on the government’s cross-examination of Dr. Shafrir about that article in his decision.
      Dr. Shafrir also testified on direct about "an article on acute cerebral ataxia,” explaining that this disorder is "[anjother neuroimmune reaction to the vaccine” that is “much less severe” than other disorders. J.A. 210. In his second report, Dr. Shafrir explained that "[m]any of the clinical phenomena seen with the actual infection with measlés, mumps, or rubella are seén with the vaccination” and that some of these clinical phenomena are “immune phenomena such as acute cerebellar ataxia” citing an article titled "Gait disturbance interpreted as cerebellar ataxia after MMR vaccination at 15 months of age: a follow-up study.” J.A. 1382, 1386.


source: Caselaw Access Project

author: STOLL, Circuit Judge.

license: Public Domain

text:
    KYOCERA SOLAR, INC., Kyocera Mexicana S.A. de C.V., Plaintiffs-Appellants v. UNITED STATES INTERNATIONAL TRADE COMMISSION, SolarWorld Americas, Inc., Defendants-Appellees
    2016-1348
    United States Court of Appeals, Federal Circuit.
    Decided: December 15, 2016

      James Kevin Hobgan, DeKieffer & Hur-gan, PLLC, Washington, DC, argued for plaintiffs-appellants.- Also represented by John J. Kenkel, Gbegory S. Menegaz, Al-EXANDRA H. SALZMAN.
    Mary Jane Alves, Office of the General Counsel, United States International Trade Commission, Washington, DC, argued for defendant-appellee United States International Trade Commission. Also represented by Andrea C. Casson, Dominic L. Bianchi.
    Timothy C. Brightbill, Wiley Rein, LLP, Washington, DC, argued for defendant-appellee SolarWorld Americas, Inc. Also represented by Stephanie Manaker Bell, Tessa V. Capeloto, Laura El-Sa-baawi, Derick Holt, Usha Neelakantan, Maureen E. Thorson..
    Before DYK, O’MALLEY, and STOLL, Circuit Judges.
   STOLL, Circuit Judge.

Kyocera Solar Inc. and Kyocera Mexica-na S.A. de C.V. (collectively, “Kyocera”) appeal á final determination by the U.S. Court of International Trade (“CIT”). The CIT reviewed and affirmed the International Trade Commission’s (“Commission”) determination that the statutory text did not support Kyocera’s proposed interpretation of the statute. Because we agree that the plain meaning of the statute forecloses Kyocera’s proposed interpretation, we affirm.

Background

This case concerns solar modules (i.e., solar panels) that incorporate crystalline silicon photovoltaic (“CSPV”) cells from Taiwan, CSPV cells convert sunlight into electricity using mono- or multi-crystalline silicon cells. The CSPV cells are strung together, sealed, laminated, and framed to make solar modules, also known as CSPV modules. CSPV cells are the main electricity-generating component of solar modules.

Kyocera produces and manufactures solar modules abroad and imports them for sale in the United States. The solar modules at issue in this case are ultimately assembled in and imported from Mexico but incorporate Taiwanese CSPV cells. These solar modules were subject to an antidumping duty investigation into CSPV products from China and Taiwan. Solar-World Industries America, Inc., an American producer of CSPV cells and modules, had filed antidumping and countervailing duty petitions alleging material injury and threat of material injury to a domestic industry by CSPV product imports from China and Taiwan.

The Department of Commerce (“Commerce”) defined the investigation’s scope to include cells and modules produced in Taiwan and certain modules “completed or partially manufactured” in other countries. The relevant portion of Commerce’s scope definition is reproduced below:

The merchandise covered by these investigations is crystalline silicon photovoltaic cells, and modules, laminates and/or panels consisting of crystalline silicon photovoltaic cells, whether or not partially or fully assembled into other products, including building integrated materials. For purposes of these investigations, subject merchandise also includes modules, laminates and/or panels assembled in the subject country consisting of crystalline silicon photovoltaic cells that are completed or partially manufactured within a customs territory other than that subject country, using ingots that are manufactured in the subject country, wafers that are manufactured in the subject country, or cells where the manufacturing process begins in the subject country and is completed in a non-subject country.

Certain Crystalline Silicon Photovoltaic Products From the People’s Republic of China and Taiwan, 79 Fed. Reg. 4661, 4667 (Dep’t of Commerce Jan. 29, 2014) (initiating antidumping duty investigations).

Kyocera later challenged Commerce’s scope determination and requested that it exclude solar modules produced in Mexico from the investigation’s scope, including modules produced in Mexico using CSPV cells manufactured in Taiwan. Commerce declined Kyocera’s request. It determined that the investigation would include solar modules produced in Mexico that incorporated Taiwanese CSPV cells. Commerce explained that “[m]odules, laminates, and panels produced in a third-country from cells produced in Taiwan are covered by this investigation.” Certain Crystalline Silicon Photovoltaic Products from Taiwan, 79 Fed. Reg. 76,966, 76,968 (Dep’t of Commerce Dec. 23, 2014) (final determination). Kyocéra challenged this scope determination in a separate civil action; Commerce’s scope determination is not at issue in this case. See Kyocera Solar, Inc. v. United States, CIT Ct. No. 15-00081 (Ct. Int’l Trade filed Mar. 20, 2015).

Using Commerce’s scope determination, the Commission detei-mined that an industry within the United States had been materially injured by imports of CSPV products from Taiwan. The Commission explained that it “must defer to Commerce’s determination of the scope of the merchandise subject to these investigations, and Commerce has determined that U.S. imports of CSPV modules assembled in third countries such as Mexico from CSPV cells made in Taiwan are U.S. imports of subject merchandise from Taiwan.” Certain Crystalline Silicon Photovoltaic Prods. from China & Taiwan, Inv. No. 701-TA-511, USITC Pub. 4519 (Feb. 1, 2015) (Final), 2015 WL 10553313, at *13 n.110.

Kyocera nevertheless argued that the Commission had to conduct a separate negligibility analysis regarding Mexican solar panels incorporating Taiwanese CSPV cells. Section 1677(24) of Title 19 of the United States Code defines “[negligible imports” as “imports from a country of merchandise corresponding to a domestic like product identified by the Commission ... accounting] for less than 3 percent of the volume of all such merchandise imported into the United States in the most recent 12-month period for which data are available that precedes” the filing of the petition or the initiation of the investigation. 19 U.S.C. § 1677(24). Under 19 U.S.C. § 1673d(b)(l)(B), “[i]f the Commission determines that imports of the subject merchandise are negligible, the investigation shall be terminated.” Kyocera argued that this statutory scheme required the Commission to conduct a separate negligibility analysis for its solar modules assembled in Mexico incorporating Taiwanese CSPV cells in contrast to solar modules assembled in Taiwan incorporating Taiwanese CSPV cells. In particular, Kyocera argued that § 1677(24) requires a negligibility analysis for imports from “a country,” and that its Mexican imports were from “a country,” so the Commission should separately conduct a negligibility analysis to determine whether solar modules imported from Mexico “account for less than 3 percent of the volume” of solar modules imported into the United States. See 19 U.S.C. § 1677(24).

The Commission rejected Kyocera’s argument, explaining that it reflected both an" improper attempt to circumvent Commerce’s scope determination and an incorrect reading of the statute:

Kyocera’s arguments are based on two flawed premises. First, Kyocera overlooks that the Commission must defer to Commerce’s definition of the scope of the merchandise subject to these investigations, and Commerce has determined that U.S. imports of CSPV modules assembled in third countries such as Mexico from CSPV cells made in Taiwan are U.S. imports of subject merchandise from Taiwan, as discussed earlier. Moreover, Kyocera does not read the negligible imports language in tandem with 19 U.S.C. §§ 1671d(b), 1673d(b), which direct the Commission to determine whether a domestic industry is materially injured “by reason of imports, or sales (or the likelihood of sales) for importation, of the merchandise with respect to which the administering authority has made an affirmative determination under subsection (a)(1) of this section. If the Commission determines that imports of the subject merchandise are negligible, the investigation shall be terminated.” (emphasis added). It is not reasonable to read “any country” into the definition of negligible imports without taking into account that the statute centers the negligibility analysis on the imports of the subject merchandise with respect to which Commerce has made an affirmative determination.

Certain Crystalline Silicon Photovoltaic Prods. from China & Taiwan, 2015 WL 10553313, at *13 n.110.

Kyocera appealed the Commission’s determination to the CIT, which affirmed the Commission’s refusal to conduct a separate negligibility analysis' for Kyocera’s solar modules incorporating Taiwanese CSPV cells in Mexican manufacturing plants. It explained that “Kyocera ignores the fact that Commerce’s investigation defines the scope of the [Commission’s] analysis.” J.A. 10. It explained that “[h]ere, Commerce determined that the solar modules produced by Kyocera in Mexico using Taiwanese cells are considered Taiwanese in origin, and are within the scope of this Taiwanese investigation.” Id. (quotation marks and brackets omitted). The CIT concluded that “the [Commission] was bound by Commerce’s determination and tasked with examining whether imports from Taiwan, including modules from Mexico, were negligible. Accordingly, the [Commission] correctly declined to conduct a separate negligibility analysis with Mexico as the country of origin.” J.A. 11 (citation omitted).

Kyocera appealed. We have jurisdiction under 28 U.S.C. § 1295(a)(5).

Discussion

We review the CIT’s assessment of the Commission’s final determination by reapplying the CIT’s standard of review. Specifically, we ask whether the Commission’s determination is unsupported by substantial evidence or otherwise not in accordance with the law. Siemens Energy, Inc. v. United States, 806 F.3d 1367, 1369 (Fed. Cir. 2015). “In undertaking this review, we give great weight to ‘the informed opinion of the [CIT].’ ” Nippon Steel Corp. v. United States, 458 F.3d 1345, 1351 (Fed. Cir. 2006) (quoting Suramerica de Aleaciones Laminadas, C.A. v. United States, 44 F.3d 978, 983 (Fed. Cir. 1994)).

Kyocera’s appeal raises an issue of statutory construction. We review issues of statutory construction under the two-prong analysis announced in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). We first determine “whether Congress has directly spoken to the precise question at issue.” Id. at 842, 104 S.Ct. 2778. If it has, our inquiry ends, for we “give, effect to the unambiguously expressed intent of Congress.” Id. at 843, 104 S.Ct. 2778. If, however, the statute does not answer the question at hand because it is “silent or ambiguous,” then, under Chevron’s second prong, we determine whether the agency provided “a permissible construction of the statute.” Id. “If Congress has explicitly left a gap for the .agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation.” Id. at 843-44, 104 S.Ct. 2778. “Such legislative regulations are given controlling weight unless they are arbitrary, -capricious, or manifestly contrary to the statute.” Id. at 844, 104 S.Ct. 2778 (footnote omitted).

We find that this dispute is resolved by the plain meaning of the statute. “In order to determine whether a statute clearly shows the intent of Congress in a Chevron step-one analysis, we employ traditional tools of statutory construction and examine ‘the statute’s text, structure, and legislative history, and apply the relevant canons of interpretation.’ ” Heino v. Shinseki, 683 F.3d 1372, 1378 (Fed. Cir. 2012) (quoting Delverde, SrL v. United States, 202 F.3d 1360, 1363 (Fed. Cir. 2000)). “It is a ‘fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.’ ” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) (quoting Davis v. Mich. Dep’t of Treasury, 489 U.S. 803, 809, 109 S.Ct. 1500, 103 L.Ed.2d 891 (1989)), That principle rings particularly true here. The statutory structure before us offers important context that guides our understanding of the disputed text’s meaning.

We begin with. 19 U.S.C. §§ 1671d(b) and 1673d(b), which outline the Commission’s final determination inquiry in countervailing duties and antidumping investigations, respectively. These sections task the Commission with finally determining whether certain imports, those that fall within the scope of a final affirmative anti-dumping or countervailing duty determination made by Commerce, are harming an industry within the United States. 19 U.S.C. §§ 1671d, 1673d. Section 1671d(b), which is mirrored by § 1673d(b), reads as follows:

(b) Final determination by Commission
(1) In general
The Commission shall make a final determination of whether—
(A) an industry in the United States—
(i) is materially injured, or
(ii) is threatened with material injury, or
(B) the establishment of an industry in the United States is materially retarded, by reason of imports, or sales (or the likelihood of sales) for importation, of the merchandise with respect to which the administering authority has made an affirmative determination under subsection (a) of this section. If the Commission determines that imports of the subject merchandise are negligible, the investigation shall be terminated.

These sections also require the Commission to conduct a negligibility determination and to terminate the investigation if it “determines that imports of the subject merchandise are negligible.” Id. (emphasis added). This negligibility determination is further defined in 19 U.S.C. § 1677(24), which explains that “imports from a country of merchandise corresponding to a domestic like product identified by the Commission are ‘negligible’ if such imports account for-less than 3 percent of the volume of all such merchandise imported into the United States” in a specified time period.

It is § 1677(24)’s definition of negligible merchandise that Kyocera reads as “directing] the Commission to consider whether ‘imports from a country’ are negligible.” Appellant Br. 20. Kyocera argues that “[t]he language of the statute is not ambiguous. ‘A country5 means exactly that—a country. Mexico is a country.” Id. It follows, Kyocera argues, that its imports of solar modules assembled in Mexico incorporating Taiwanese CSPV • cells are from Mexico, and thus the Commission should have conducted a separate negligibility analysis for these modules.

We disagree.’ Kyocera’s statutory reading improperly wrests a line of statutory text from its context. See Brown & Williamson, 529 U.S. at 133, 120 S.Ct. 1291. Here, the statute plainly requires that the Commission make its determinations with regard to subject merchandise. And the statute vests Commerce with ’the role of determining the scope of the merchandise subject to investigation. See 19 U.S.C. §§ 1671d(b), 1673d(b); see also 19 U.S.C. §§ 1671e(a)(2), 1673e(a)(2) (explaining that Commerce shall include in anti-dumping and countervailing duty orders “a description of the subject merchandise, in such detail as [Commerce] deems nec essary”). Indeed, the negligibility determination requires an inquiry into whether “imports of the subject merchandise are negligible.” 19 U.S.C. §§ 1671d(b)(l), 1673d(b)(l). And the statute defines “subject merchandise” as “the class or kind of merchandise that is within the scope of an investigation.” 19 U.S.C. § 1677(25). Thus, the Commission’s determinations of domestic injury and negligibility are made with respect to the subject merchandise— i.e., the merchandise within the scope of Commerce’s investigation. We therefore agree with the Commission’s observation that “[i]t is not .reasonable to read ‘any country’ into the definition of negligible imports without taking into account that the statute centers the negligibility analysis on the imports of the subject merchandise with respect to which Commerce has made an affirmative determination.” Certain Crystalline Silicon Photovoltaic Prods. from China & Taiwan, 2015 WL 10553313, at *13 n.110.

Moreover, Kyocera cannot challenge Commerce’s determination that the solar modules finally assembled in Mexico are Taiwanese in origin. Indeed, Kyocera “does not dispute” that “[t]he Commerce Department determined that solar products produced in Mexico from Taiwanese origin cells[ ] are subject merchandise and Taiwanese in origin.” Appellant Reply Br. 4. In fact, that very determination is the subject of .a separate civil proceeding in the CIT, see CIT Ct. No. 15-00081, filed by Kyocera. And both parties agree that Commerce’s scope determination is not before us today. Kyocera argues, however, that “the Commission is required to examine the negligibility of subject merchandise (in this case, Taiwanese origin solar products produced in Mexico) imported from Mexico.” Appellant Br. 4. We disagree. The statute does not support Kyocera’s proposed distinction between Commerce’s determination of origin and the origin of goods referred to in the negligibility statute. As we explained above, the statute centers the negligibility determination on subject merchandise. In this case, Commerce determined that the solar modules that Kyocera claims are “from Mexico” are Taiwanese in origin. Following the statutory structure, the Commission properly treated the cells as Taiwanese in origin, and thus correctly refused to conduct a separate negligibility determination for Kyocera’s solar cells.

We have considered Kyocera’s remaining arguments and find them unpersuasive.

ConclusioN

Because we find Kyocera’s position unambiguously refuted by the plain meaning of the statute, we conclude our analysis under the first prong of Chevron and do not reach its second prong. As Kyocera does not otherwise challenge the Commission’s determination, we affirm.

AFFIRMED

Costs

No Costs.


author: DYK, Circuit Judge. NEWMAN, Circuit Judge,

text:
    Joseph R. GALLEGOS, Petitioner v. MERIT SYSTEMS PROTECTION BOARD, Respondent
    2016-2120
    United States Court of Appeals, Federal Circuit.
    Decided: December 27, 2016

      Joseph R. Gallegos, Fayetteville, NC, pro se.
    Saea B. Rearden, Office of the General Counsel, Merit Systems Protection Board, Washington, DC, for respondent. Also represented by Bryan G. Polisuk.
    Before NEWMAN, CLEVENGER, and DYK, Circuit Judges.
   Opinion for the court filed by Circuit Judge DYK, in which CLEVENGER,. Circuit Judge, joins.

DYK, Circuit Judge.

Joseph R. Gallegos petitions, for review of a final order of the Merit Systems Protection Board (“Board”).. The Board dismissed as untimely Gallegos’s petition for enforcement, of the settlement agreement that resolved his adverse action appeal in Gallegos v. Dep’t of Health & Human Services, Docket No. DA-0752-01-0157-1-1 (MSPB Mar. 23, 2001). The. Board also found that Gallegos did not establish good cause for untimely filing. We affirm.

BACKGROUND

Gallegos was employed by the Food and Drug Administration (“Agency”) as a Consumer Safety Officer during the period from 1980 to 2000. He was removed on November 25, 2000, on the ground that he refused to accept a job reassignment that required relocation. On December 14, 2000, Gallegos filed an appeal with the Board to challenge his removal by the Agency. In March 2001, Gallegos and the Agency entered into a settlement agreement (“Agreement”). The Agreement provided that Gallegos would withdraw his appeal with prejudice, and that the Agency would expunge from Gallegos’s Official Personnel File (“OPF”) and the Standard Form (“SF-50”) any indication that he was removed from his position. Instead, a revised SF-50 would indicate “a voluntary resignation.” J.A. 120. The Agreement also stated that Gallegos “will be provided with a copy of the revised SF-50 for inspection, and [Gallegos] will notify the Agency of any concerns within 15-days of receipt of the form.” Id.

The Board approved this settlement and noted that “[a]ny petition for enforcement [of the Agreement] must be filed 'within a reasonable period of time after you discover the asserted noncompliance.” Gallegos v. Dep’t of Health and Human Servs., Docket No. DA-0752-01-01571-1 (MSPB Mar. 23, 2001). This notice was consistent with 5 C.F.R. § 1201.182(a), which provides that a petition for enforcement of a settlement agreement must be filed “promptly.”

In October 2014, almost 14 years after the settlement, Gallegos alleges that he discovered a breach of the Agreement because his revised SF-50 indicated “Resignation ILIA,” which stands for “in lieu of involuntary action.” Gallegos argues that the use of this acronym violated the Agreement. He alleged that he had misplaced the settlement agreement, and he was only able to confirm the breach by obtaining a copy he received in response to a Freedom of Information Act request on April. 14, 2015.

On June 15, 2015, Gallegos filed a petition for enforcement of the settlement agreement with the Board. The administrative judge (“AJ”) noted that Gallegos’s petition appeared facially untimely. The AJ had ordered Gallegos to address the timeliness issue and to provide information as to when “he learned that his SF-50 regarding his resignation stated[] ‘Resignation ILIA.’ ” J.A. 12. Gallegos responded that he suspected the Agreement had been breached in October 2014 because of the ILIA designation, but that he had been using the SF-50 at issue since 2001. The AJ. concluded that Gallegos had received the revised SF-50 indicating “Resignation ILIA” 14 years ago, and determined that the petition was untimely because Gallegos did not establish good cause for the delay. Gallegos v. Dep’t of Health & Human Servs., Docket No. DA-0752-01-0157-C-1 (MSPB Sept. 17,2015).

On review, the Board affirmed the AJ’s finding that. Gallegos failed to establish that his petition for enforcement was timely filed. Gallegos v. Dep’t of Health & Human Servs., Docket No. DA-0752-01-0157-C-1, 123 M.S.P.R. 397 (MSPB Mar. 24, 2016). The Board also noted that “[t]o establish good cause for the untimely filing of an appeal, a party must show that he exercised due diligence.... We find the appellant’s failure to maintain a copy of the parties’ settlement agreement, as' well as his apparent failure to compare the SF-50 with the settlement agreement at the time he received the documents to be less than diligent.” J.A. 6.

Gallegos petitions for review. We have jurisdiction under 28 U.S.C. § 1295(a)(9).

Discussion

We must affirm the Board’s decision unless it is “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial, evidence.” 5 U.S.C. § 7703(c).

,In his petition for review, Gallegos primarily argues that the timeliness issue should be resolved in his favor because the Agency engaged in fraud. We first address the standard for timeliness and then address Gallegos’s fraud allegations.

A petition for enforcement of a settlement agreement must be filed “promptly.” 5 C.F.R. § 1201.182(a). We have interpreted “promptly” to mean within a “reasonable time.” Poett v. MSPB, 360 F.3d 1377, 1381 (Fed. Cir. 2004). “The ‘reasonable time’ requirement for filing a petition for enforcement of a settlement agreement is conceptually similar to the defense of lach-es ... [where] the plaintiff [cannot] delay[] filing suit for an unreasonable and inexcusable length of time from the time he knew or reasonably should have known of his claim_” Id. at 1384. Here, Gallegos stated that he first noticed the notation “Resignation ILIA” in October 2014, but also that he had been using the SF-50 in question since 2001. Gallegos did not dispute that he had also received a copy of the Agreement when it was executed (though he later lost that copy).

Given that the Agreement specifically provided that Gallegos “will notify the Agency of any concerns within 15-days of receipt of the [revised SF-50] form,” we find no error in the Board’s conclusion that Gallegos did not exercise due diligence. “[W]hether the regulatory time limit for an appeal should be waived based upon a showing of good cause is a matter committed to the Board’s discretion and this court will not substitute its own judgment for that of the Board.” Mendoza v. MSPB, 966 F.2d 650, 653 (Fed. Cir. 1992) (en banc).

Gallegos alleges that good cause exists because the Agency engaged in fraud.

His first theory is that the Agency inappropriately altered his SF-50 after he. received a copy at the time of the settlement. There are discrepancies between his copy of the SF-50 and the one contained in his electronic OPF, but the AJ noted these minor typographic differences—slightly larger fonts, the presence or absence of dashes and parentheses, or stray spaces. None of these bears any connection to the authenticity of the “Resignation ILIA” designation on the SF-50.

Gallegos also alleges that even though the Agreement provided for a “voluntary resignation,” the Agency included “Resignation ILIA” on his SF-50 instead, and because he was not aware that the ILIA acronym stood for.“in lieu of involuntary action,” he was fraudulently induced into signing the Agreement. According to Gallegos, the Agency officials had a fiduciary duty to explain this acronym to him at the time of the Agreement. We disagree.

The Agreement explicitly placed the burden on Gallegos to review the SF-50, stating that Gallegos “will be provided with a copy of the revised SF-50 for inspection, and [Gallegos] will notify the Agency of any concerns within 15-days of receipt of the form.” J.A. 120. Furthermore, as the Board noted, Gallegos was represented by counsel when executing this settlement. Thus, Gallegos could have and should have inquired about the acronym at the time of receiving his revised SF-50. We find no error in the Board’s conclusion that Gallegos failed to establish good cause for his untimely filing.

AFFIRMED

Costs

No costs.-

NEWMAN, Circuit Judge,

dissenting.

This case should have been resolved without litigation. The government admits that it violated its Settlement Agreement with Mr. Gallegos, yet refuses to correct its violation, on the theory that since Mr. Gallegos did not recognize the code by which the violation was achieved, the government has no obligation to correct the violation.

Mr. Gallegos requests that his SF-50 form be corrected to comply with the Agreement. The government refuses even now to make this simple correction, to remove this blight on Mr. Gallegos’ record. My" colleagues on this panel place the fault not on the government for violating the Agreement, but on Mr. Gallegos for not discovering the violation when it occurred. I respectfully dissent.

Disoussion

Mr. Gallegos and the government entered into a. Settlement Agreement that the “removal action will be substituted with a voluntary resignation,” and that a new SF-50 form would be prepared to “effectuate the resignation.” Settlement Agreement at 2. A new SF-50 was issued, stating “Resignation ILIA.” Mr. Gallegos did not decipher the code word “ILIA.” The question before us is not how this noncompliance arose; the question is whether it will be corrected. My colleagues hold that Mr, Gallegos cannot obtain correction because he did not request correction immediately. Thus the government argues, and my colleagues affirm, that the violation of the Agreement will not be remedied.

The initials ILIA are apparently recognized by personnel officials as “in lieu of involuntary action”—the information prohibited by the Settlement Agreement, which states:

The removal action will be substituted with a voluntary resignation. Appellant’s resignation will be effective on September 29, 2000, which is the date on which the reassignment became effective. The Appellant will be provided with a Standard Form-52, Request for Personnel Action. The Appellant must indicate the reasons for his resignation on the SF-52 form. In order to continue receiving severance pay, appellant must also state that “Due to personal considerations, I am unable to relocate to San Antonio, Terns,” The SF-52 will be dated September 29, .2000. The information in the SF-52 form will be used to prepare the Notification of Personnel Action or SF-50 to effectuate the resignation. Appellant will be provided with a copy of the revised SF-50 for inspection, and will notify the Agency of any concerns within 15 days of receipt of the form.

Settlement Agreement at 2. The Board holds that since Mr. Gallegos was given a copy of the improperly coded SF-50 at the time of his separation, he was required to object within 15 days or forever remain silent. However, such an obligation does not arise when the error is not readily recognizable. Technical knowledge of the ILIA acronym cannot be imputed, at least in the absence of any reason to be suspicious that the government would undermine its Agreement, even by clerical error.

Mr. Gallegos filed this petition about two months after he confirmed the violation. A petition for enforcement should be filed within a “reasonable time” following actual knowledge of breach of the Agreement. Kasarsky v. MSPB, 296 F.3d 1331, 1335 (Fed. Cir. 2002). Mr. Gallegos did so. Yet the government refuses to correct the SF-50, although the breach is not denied.

In justice, correction is required, and could easily have been implemented without this extended litigation. It is unconscionable to refuse to correct the form. I respectfully dissent.