Griffin v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 13-280V

Filed: April 4, 2014

For Publication

*************************************

DAVID D. GRIFFIN, *

*

Petitioner, * Dismissal decision; motion for summary

* judgment; flu vaccine; GBS; federal

v. * government contractor; not a federal

* employee

SECRETARY OF HEALTH *

AND HUMAN SERVICES, *

*

Respondent. *

*

*************************************

Lisa A. Roquemore, Irvine, CA, for petitioner.

Lara A. Englund, Washington, DC, for respondent.

MILLMAN, Special Master

DECISION1

On April 23, 2013, petitioner filed a petition for compensation under the National

Childhood Vaccine Injury Act of 1986 (“Vaccine Act” or “Act”), 42 U.S.C. §§ 300aa-10–34

(2006), alleging that he suffered Guillain-Barré Syndrome (“GBS”) caused by his February 1,

2012, receipt of flu vaccine. Petitioner received the flu vaccine while in Afghanistan employed

as a federal government contract worker.

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Because this decision contains a reasoned explanation for the special master’s action in this case, the

special master intends to post this decision on the United States Court of Federal Claims’s website, in

accordance with the E-Government Act of 2002 § 205, Pub. L. No. 107-347, 116 Stat. 2899, 2913

(codified as amended at 44 U.S.C. § 3501 (2006)). Vaccine Rule 18(b) states that all decisions of the

special masters will be made available to the public unless they contain trade secrets or commercial or

financial information that is privileged and confidential, or medical or similar information whose

disclosure would constitute a clearly unwarranted invasion of privacy. When such a decision is filed,

petitioner has 14 days to identify and move to redact such information prior to the document’s disclosure.

If the special master, upon review, agrees that the identified material fits within the banned categories

listed above, the special master shall redact such material from public access.

On July 2, 2013, respondent filed a motion for summary judgment, arguing that petitioner

is not entitled to compensation under the Vaccine Act because he was not “serving abroad . . . as

an employee of the United States” when he received the flu vaccine. The motion has now been

fully briefed and is ripe for decision.

In this case, petitioner does not qualify for compensation under section 300aa-11(c) of the

Vaccine Act. Based on the statutory language, legislative history, and purpose of the Vaccine

Act, it is clear that Congress intended to compensate only a certain class of persons who suffer a

vaccine injury after receiving a vaccine overseas. Congress provides protection to members of

the Armed Forces, federal employees, and individuals who return to the United States within six

months of their vaccination. Petitioner did not return to the United States within six months of

his vaccination. Nor is petitioner a member of the Armed Forces. Finally, under a traditional

agency analysis, petitioner cannot be considered an employee of the United States government.

Under the principles of sovereign immunity, the undersigned may not expand on the waiver of

immunity stated in the statute. Petitioner does not fall within any of the categories listed in

§ 300aa-11(c)(1)(B)(i)(II) or (III) and is thus not eligible to bring a petition in the Vaccine

Program.

I. Factual History

Petitioner David Griffin is a United States citizen who worked for Fluor in the Fluor

Federal Global Project. He describes himself as a “civilian government employee.” Griffin

Decl. ¶ 5, Aug. 26, 2013. Fluor maintains a sizeable government contract with the Department

of Defense (“DOD”), and many of its employees work alongside United States Armed Forces

personnel in Afghanistan. Id. Fluor provides support services to DOD and other government

agencies through the U.S. Army Logistics Civil Augmentation Program. Ex. 10, at 1, 2. These

services include food services, latrines, waste management, facilities and construction

management, morale, and recreation, among others. Ex. 11, at 16. Petitioner asserts that the

salary and hiring criteria for a person in his position were set by the military. Griffin Decl. ¶ 8,

Dec. 18, 2013.

The 80-page contract between HQ Army Sustainment Command and Fluor includes

various provisions regarding their relationship. See Ex. 11. The contract states that “the

awardee [Fluor] will operate as an independent contractor and not as an agent of the U.S.

Government or U.S. Army.” Ex. 11, at 3. It requires Fluor to ensure that all “deployable

employees are medically and physically fit.” Id. at 30. Fluor is responsible for obtaining its

employees’ passports and visas. Id. at 31. Fluor also trains its employees, with the exception

that the government will train contractor personnel on interacting with detainees, and Fluor is

responsible for ensuring that certain employees receive this training. Id. at 34; Id. at 56–57. The

contract allows the government to direct Fluor to “remove” any contractor personnel who

“jeopardize or interfere with mission accomplishment or who fail to comply with or violate” the

contract. Id. at 75. The contract specifies that “[c]ontractor personnel are prohibited from

wearing military clothing unless specifically authorized,” and even then, contract personnel must

“[w]ear distinctive patches, arm bands, nametags, or headgear, in order to be distinguishable

from military personnel.” Id. It also states:

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All contractor personnel attending meetings, answering Government telephones,

corresponding by email and working in other situations where their contractor

status is not obvious to third parties are required to identify themselves as such to

avoid creating an impression that contracted personnel are Government

employees, or official representatives of a Governmental organization.

Id. at 19.

Petitioner was hired by Fluor as a site manager located in Asia/Afghanistan. Ex. 1, at 10;

Ex. 4, at 10; Suppl. Resp. at 8. Pursuant to the contract between Fluor and DOD, petitioner

underwent required medical and security clearances. Ex. 11, at 5, 30. In July 2010, he was

acknowledged as “fit for duty” in accordance with USCENTCOM policies by Occucare

International in Dubai. Ex. 2, at 1. Petitioner’s security clearance was obtained through

CENTCOM Service Component. Ex. 14, at 8. Petitioner received emails from the Army

regarding his security investigation and was notified by Fluor Industrial Security when he passed

his security clearance. Ex. 19, at 1–2.

On January 31, 2012, petitioner arrived in Afghanistan. Pet. at 2. On February 1, 2012,

petitioner received influenza vaccine, and his second vaccinations of MMR and varicella. Med.

recs. Ex. 5, at 1–3. The flu vaccine was a requirement by DOD and was distributed at a Fluor

clinic at Bagram Airfield, a United States military base. Ex. 15, at 8; Ex. 5, at 3. The

immunizations were provided at Fluor’s expense. Ex. 15, at 4.

As a site manager, petitioner worked on a military base in Afghanistan. Griffin Decl.

¶ 13, Dec. 18, 2013. He describes his job as akin to a project manager. Id. at ¶ 12. He managed

“all departments” on the base, which required knowledge about “budgeting, the military’s

network, supervising, ordering of supplies, communicating, as well as . . . basic knowledge

regarding laundry, showers, latrines . . . plumbing, electrical, and cooking.” Id. Petitioner had

daily contact with military officials, including weekly meetings with military commanding

officers and the mayor of the base. Suppl. Resp. at 6. Petitioner and military officials discussed

deadlines, materials, and issues with projects at these daily meetings. Griffin Decl. ¶ 7, Dec. 18,

2013. Petitioner also had weekly telephonic conferences with his off-site Fluor supervisor,

Cheryl Robertson, in which other site managers were included. Id. at ¶ 8. Petitioner’s

management decisions as site manager were influenced by Army regulations. Id. at ¶ 12.

Petitioner used equipment and materials that were provided by the military and was required to

have military authorization for all requisitions. Id. at ¶ 9. The military reviewed petitioner’s

work performance. Id.

Petitioner was paid an hourly rate by Fluor. Ex. 8, at 2–3; Ex. 9, at 1–2. Federal income

taxes were taken from his Fluor paycheck. Ex. 9, at 1–3. His health and dental care were

provided through Fluor. Id.; Ex. 20, at 1. The ultimate authority to terminate petitioner’s

employment remained with Fluor. Suppl. Resp. at 8. Petitioner also accrued leave through

Fluor. Id.

In mid-February 2012, petitioner began to experience weakness and numbness in his

extremities. Med. recs. Ex. 3, at 4. On March 5, 2012, petitioner’s workers’ compensation

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report was filed with the U.S. Department of Labor. Ex. 20, at 1. The Defense Base Act

provides workers’ compensation protection to civilian employees working outside the United

States on U.S. military bases or under contract with the U.S. government for public works or for

national defense. 42 U.S.C. §§ 1651–55 (2006). A private insurance carrier, not the federal

government, pays for successful workers’ compensation claims under the Defense Base Act.

Division of Longshore and Harbor Workers’ Compensation (DLHWC), United States

Department of Labor, http://www.dol.gov/owcp/dlhwc/ DBAClaimAdministration.htm (last

visited Mar. 26, 2014). The contractor, not the government, is responsible for ensuring the

contractor’s employees have Defense Base Act coverage. Id. Petitioner lists Fluor as his

employer in three different places in his workers’ compensation papers. Ex. 20, at 1, 3, 5.

On March 9, 2012, petitioner visited Makati Medical Center emergency department in

Manila, Philippines. Med. recs. Ex. 3, at 4. He complained of weakness and numbness in his

extremities for the previous 17 days (beginning February 21, 2012). Id. On March 12, 2012, Dr.

Cynthia B. Anacay noted that petitioner’s symptoms were supportive of Guillain-Barré

syndrome. Id. at 7.

II. Procedural History

On April 23, 2013, petitioner filed a petition under the Act. On August 9, 2013,

respondent filed a motion for summary judgment, arguing that petitioner is not entitled to

compensation under the Vaccine Act because he was not “serving abroad . . . as an employee of

the United States” when he received the flu vaccine. Mot. Summ. J. at 1. Respondent argues

that the Vaccine Act is unambiguous and should be interpreted according to the ordinary usage

of “employee,” which means one who “works directly for an employer and receives

compensation and other benefits directly from the employer in return.” Id. at 4. (Respondent

does not cite a source for this definition.) Respondent argues that particularly in the context of

the federal government, contractors are treated differently from employees, for example, in their

eligibility for health insurance plans, pension plans, leave, and other benefits. Id. Respondent

further argues that the principles of sovereign immunity require the undersigned to construe any

ambiguity in favor of immunity. Id. at 5.

On August 27, 2013, petitioner filed a response to respondent’s motion for summary

judgment. Petitioner argues that as a government contract worker stationed in Afghanistan,

petitioner was either a member of the Armed Forces or a federal employee. Opp. Mot. Summ. J.

Petitioner argues that the Vaccine Act is ambiguous and should be construed in context with the

liberal and inclusive policy behind the statute. Id. at 8–9. He argues that construing the statute

to exclude petitioner would lead to absurd results. Id. at 8. Petitioner cites Rooks v. Secretary of

HHS, 35 Fed. Cl. 1 (Fed. Cl. 1996), which rejected a narrow construction of the word “receive”

in a case dealing with whether a fetus in utero received a vaccination when his mother received

it. Opp. Mot. Summ. J. at 8–10. Petitioner also discusses Andrews v. Secretary of HHS, No. 90-

3196V, 1996 WL 300644 (Fed. Cl. Spec. Mstr. 1996), in which then-Special Master Abell

concluded that an engineer working in conjunction with the United States Department of State,

Agency for International Development (“USAID”) was a federal employee, using an analysis

based on whether the employee acted on “behalf” of the United States and whether the United

States exhibited the requisite quantum of “control.” Opp. Mot. Summ. J. at 11–12. Petitioner

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argues that contractors should be considered “de facto federal employees,” especially given the

increasingly “blended workforce” of civil servants, members of the military, and contractors. Id.

at 13. Petitioner goes on to argue that he should be considered either a non-combatant civilian

employee of the Armed Forces or a federal employee of the Department of Defense. Id. at 14.

Alternatively, petitioner argues that he should not be penalized for failing to return to the United

States within six months of his vaccination because he fully intended to return once his

employment was over and thus did not “legally leave” the United States. Id. at 16. Petitioner

also argues against a strict application of sovereign immunity. Id. at 16–17.

On September 10, 2013, respondent filed a Reply in Support of Respondent’s Motion for

Summary Judgment. Respondent focuses on language in the contract that “repeatedly disclaims”

an employer/employee relationship between the United States government and contractor

personnel. Reply at 1–2. Respondent argues that it would not be “absurd, futile or

unreasonable” to construe the Vaccine Act to confer different legal rights and remedies upon

Americans who work or travel overseas than upon those who remain in the United States Id. at

2. Respondent also argues that petitioner had the alternative of returning to the United States

within six months of his vaccination in order to avail himself of eligibility under the Vaccine

Program. Id.

On December 19, 2013, petitioner filed a Supplemental Response to Respondent’s

Motion for Summary Judgment. Petitioner argues that even though he filed a Defense Base Act

claim, he will be prejudiced if his petition is dismissed from this Program, as this Program

provides recovery for pain and suffering and for full wage loss. Suppl. Resp. at 3. Petitioner

concedes that benefits received from his Defense Base Act claim would be offset by any award

received in this Program. Id. Petitioner argues that a petitioner can have dual employers and

that he was a dual employee of both Fluor and the Department of Defense (“DOD”). Id. at 3, 10.

Petitioner discusses and compares this case to Harris v. Attorney General, 657 F. Supp. 2d 1, 12

(D.D.C. 2009), which held that an independent contractor for the Department of Justice was a

federal employee for Title VII purposes. Suppl. Resp. at 3–5. In Harris, the D.C. District Court

applied common law agency tests, including the test used in Spirides v. Reinhardt, 613 F.2d 826

(D.C. Cir. 1979),2 to determine whether the Department of Justice retained sufficient control

over Harris to qualify as her employer. Harris, 657 F. Supp. 2d 1. The district court eschewed

the contract between the parties, as contracts do not necessarily reflect “economic realities” of an

employment relationship. Id. at 10. Petitioner argues that he was a federal employee based on

the level of control exerted over him by the military, including factors such as who provided the

work environment and furnishings and whether his work was integral to the overall mission of

the government. Suppl. Resp. at 6–8.

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Spirides involved a foreign language broadcaster who brought a Title VII complaint against the United

States International Communication Agency (“USICA”). 613 F.2d 826. The district court had found

that USICA was not the plaintiff’s employer and had dismissed her complaint on the grounds that her

contract with USICA referred to her as an independent contractor. Id. at 827. The Court of Appeals for

the District of Columbia Circuit reversed the district court’s grant of summary judgment, holding that the

determination of whether a person is an employee or an independent contractor requires an agency

analysis considering all of the circumstances of the work relationship, including the “economic realities,”

and that consideration of the contract alone was insufficient. Id. at 831–33.

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On January 21, 2014, respondent filed a Supplemental Reply in Support of Respondent’s

Motion for Summary Judgment. Respondent argues that the complex control analysis advocated

by petitioner is irrelevant in the context of the Vaccine Program. Suppl. Reply at 2. Respondent

argues that “because the Vaccine Act was intended to streamline resolution of vaccine claims . . .

it is more reasonable to assume that Congress intended courts to use the easy-to-apply, plain

meaning of the term ‘employee.’” Id. at 2.

The issue has now been fully briefed and is ripe for a decision.

ANALYSIS

A. Legal Standard for a Motion for Summary Judgment

In order to grant a motion for summary judgment, a special master must find that there is

“no genuine dispute as to any material fact and that the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a); U.S. Ct. Fed. Cl. R. 56(a); see Vaccine Rule 8(d)

(authorizing summary judgment pursuant to Rule 56 of the U.S. Court of Federal Claims). The

moving party bears the burden to show the absence of any genuine issue of material fact. Jay v.

Sec’y of HHS, 998 F.2d 979, 982 (Fed. Cir. 1993). All of the non-movant’s statements are

regarded as true, and “all justifiable inferences” must be drawn in favor of the non-moving party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253, 255 (1986). However, a non-moving party

must establish “more than the ‘mere scintilla of evidence’ in support of its position.” Harris, 657

F. Supp. 2d at 7. “If the evidence is merely colorable, or is not significantly probative, summary

judgment may be granted.” Anderson, 477 U.S. at 249–50.

The essential inquiry is “whether the evidence presents a sufficient disagreement of fact

to require submission to the factfinder or whether it is ‘so one-sided that one party must prevail

as a matter of law.’” Jay, 998 F.2d at 982 (quoting Anderson, 477 U.S. at 251–52). “Summary

judgment is appropriate if the non-movant fails to offer ‘evidence on which the [factfinder] could

reasonably find for the [non-movant].’” Harris, 657 F. Supp. 2d at 7 (quoting Anderson, 477

U.S. at 252). Whether a plaintiff or petitioner is a federal employee is an appropriate question

for summary judgment. See, e.g., Lopez v. Johnson, 333 F.3d 959 (9th Cir. 2003); Harris, 657 F.

Supp. 2d 1; Redd v. Summers, 232 F.3d 933 (D.C. Cir. 2000).

B. The Vaccine Act’s Requirements for Petitioners Who Received a Vaccine Outside of

the United States

Among other requirements, in order to receive compensation for a vaccine injury, a

petitioner must receive a vaccine under one of three circumstances. A person who “received the

vaccine in the United States or in its trust territories” may be eligible for compensation. 42

U.S.C. § 300aa-11(c)(1)(B)(i)(I) (2006). Alternatively, even if a petitioner received a vaccine

outside of the U.S. or its territories, a person may be eligible for compensation if either:

at the time of the vaccination such person was a citizen of the United States

serving abroad as a member of the Armed Forces or otherwise as an employee of

the United States or a dependent of such a citizen, or . . . the vaccine was

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manufactured by a vaccine manufacturer located in the United States and such

person returned to the United States not later than 6 months after the date of the

vaccination.

Id. § 300aa-11(c)(1)(B)(i)(II)–(III).

C. Standards for Statutory Interpretation

The question of whether petitioner is eligible for compensation under § 300aa-11(c)

raises an issue of statutory interpretation, which is an issue of law. Hellebrand v. Sec’y of HHS,

999 F.2d 1565, 1569 (Fed. Cir. 1993) (citing Munn v. Sec’y of HHS, 970 F.2d 863, 870 (Fed.

Cir. 1992)). “It is a general rule of statutory construction that where Congress has clearly stated

its intent in the language of a statute, a court should not inquire further.” Hellebrand, 999 F.2d at

1569 (quoting Brookside Veneers, Ltd. v. United States, 847 F.2d 786, 788 (Fed. Cir. 1988)). If

there is some ambiguity in a statute, “a court should seek to avoid construing a statute in a way

which yields an absurd result and should try to construe a statute in a way which is consistent

with the intent of Congress.” Hellebrand, 999 F.2d at 1570–71 (citing Haggar Co. v. Helvering,

308 U.S. 389, 394 (1940) (“All statutes must be construed in light of their purpose. A literal

reading of them which would lead to absurd results is to be avoided when they can be given a

reasonable application consistent with their words and with the legislative purpose.”)).

The United States is sovereign and no one may sue it without the sovereign’s waiver of

immunity. United States v. Sherwood, 312 U.S. 584, 586 (1941). Respondent argues that the

principles of sovereign immunity require this Court to construe any ambiguity contained within

the statute in favor of the government. Mot. Summ. J. at 5 (citing Holihan v. Sec’y of HHS, 45

Fed. Cl. 201, 207 (Fed. Cl. 1999); Flannery v. Sec’y of HHS, No. 99-963V, 2003 WL 1699396,

at *8 (Fed. Cl. Spec. Mstr. Mar. 14, 2003)). Petitioner counters respondent’s argument with

more recent cases, which he argues demonstrate a departure from this strict view of sovereign

immunity. Opp. Mot. Summ. J. at 16–17.

In Chickasaw Nation v. United States, the Supreme Court directed that “canons are not

mandatory rules” but rather “are designed to help judges determine the Legislature’s intent as

embodied in particular statutory language.” 534 U.S. 84, 94 (2001). In Richlin Security Service

Co. v. Chertoff, the Court stated, “The sovereign immunity canon is just that—a canon of

construction. It is a tool for interpreting the law, and we have never held that it displaces the

other traditional tools of statutory construction.” 553 U.S. 571, 589 (2008). In Richlin, after

considering the legislative history and policy considerations for the statutory term at issue, the

Court continued, “There is no need for us to resort to the sovereign immunity canon because

there is no ambiguity left for us to construe.” Id. at 590. Other special masters have viewed

Richlin as a “substantial change” in the sovereign immunity doctrine, allowing for a more

“liberal” construction of “remedial” legislation. See Castaneda v. Sec’y of HHS, No. 11-749V,

2012 WL 1722346, at *6 (Fed. Cl. Spec. Mstr. Apr. 24, 2012) (holding that the doctrine of

sovereign immunity did not require a narrow construction of the term “receive” and that the

petitioner’s child “received” a vaccine while in utero); Burch v. Sec’y of HHS, No. 99-946V,

2010 WL 1676767, at *2–*7, *9 (Fed. Cl. Spec. Mstr. Apr. 9, 2010) (providing a thorough

discussion of the Supreme Court’s sovereign immunity cases through recent years and also

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concluding that the petitioner’s child “received” a vaccine while in utero).

In limiting its waiver of sovereign immunity, Congress created the requirements in

§ 300aa-11(c) as conditions precedent to suit. The undersigned’s duty is to determine whether

petitioner satisfied these conditions precedent, using traditional tools of statutory construction to

ascertain the legislative intent. United States v. Am. Trucking Ass’ns, 310 U.S. 534, 542 (1940).

The principles of sovereign immunity are one canon of construction. Richlin, 553 U.S. at 589.

Other tools of statutory interpretation include an analysis of the legislative history to determine

the underlying purpose of the statute. NLRB v. Bell Aerospace Co. Div. of Textron, Inc., 416

U.S. 267, 274–75 (1974).

When Congress passed the National Childhood Vaccine Injury Act of 1986, it intended to

establish a “Federal ‘no fault’ compensation program under which awards can be made to

vaccine-injured persons quickly, easily, and with certainty and generosity.” H.R. Rep. No. 99-

908, at 3 (1986). A need for such legislation arose due to vaccine manufacturers’ difficulty in

obtaining insurance during the 1980s, resulting in the rising cost of vaccines and decreased

availability of vaccine manufacturers. S. Rep. No. 99-483, at 5 (1986). A stated legislative

purpose of the Vaccine Act was the federal government’s “responsibility to prevent the spread of

infectious diseases from other countries into the United States and between States within its own

borders.” H.R. Rep. No. 99-908, at 5 (1986). Congress attempted to make the Vaccine Injury

Compensation Program “fair, simple, and easy to administer” so that vaccine manufacturers

would “have a better sense of their potential litigation obligations,” and “a more stable childhood

vaccine market” would evolve. Id. at 7.

This no-fault compensation program was intended to be simpler and more expeditious

and to provide more certain recovery than traditional tort litigation based on negligence. Id. at

6–7. In the 1989 amendments, Congress reiterated its intent that the Program operate informally

and expeditiously:

Congress intended a quick, flexible, and streamlined system . . . . The system was

intended to be “fair, simple, and easy to administer” and “to compensate persons

with recognized vaccine injuries without requiring the difficult individual

determinations of causation and injury.”

H.R. Rep. No. 101-386, at 512 (1989). Vaccine proceedings were meant to “be made as swift

and uncomplicated as possible.” Id. at 515.

“The scope of the Vaccine Act does not extend beyond the borders of the United States.

The name itself refers to a ‘national’ act.” McGowan v. Sec’y of HHS, 31 Fed. Cl. 734, 739

(Fed. Cl. 1994) aff’g No. 90-2446V, 1994 WL 879451 (Fed. Cl. Spec. Mstr. May 10, 1994)

(holding that a person who received a vaccine outside the United States did not satisfy the

Vaccine Act’s requirement that she return to the United States by merely visiting the United

States). When creating the Vaccine Act, Congress was not concerned with “the continued supply

of vaccines outside the United States or the compensation of non-residents of the United States,

save for United States Government and military personnel stationed abroad.” Id. With respect

to § 300aa-11(c), the legislative history states only that “[a] petition must contain a variety of

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materials necessary to make a finding that compensation be made,” including “evidence that the

person on behalf of whom the petition is filed . . . met certain citizenship or location

restrictions.” H.R. Rep. No. 99-908, at 15 (1986) (cited in McGowan, 31 Fed. Cl. at 739 n.2). It

is logical that these citizenship and location restrictions are related to Congress’s stated purpose

of preventing infectious diseases from reaching the United States. See McGowan, 31 Fed. Cl. at

739. Congress realized that it could not prevent infectious diseases from entering our borders

without encouraging Americans who are overseas and are likely to return to the United States to

receive vaccinations before returning. Id. Thus, it created three categories of people who could

file a petition after receiving a vaccine overseas: (1) American citizens serving overseas as

members of the Armed Forces or federal employees, (2) dependents of American citizens serving

overseas as members of the Armed Forces or federal employees, and (3) persons who received a

vaccine created by an American vaccine manufacturer and who returned to the United States

within six months of vaccination. If these categories of persons overseas were not vaccinated,

when they returned to the United States, they could potentially spread disease within American

borders.

Considering the principles of sovereign immunity as well as the clearly stated legislative

purpose that the Vaccine Act be a national program that prevents the spread of infectious disease

from other countries within this country’s borders, the undersigned will now analyze whether

petitioner falls within the exceptions listed in § 300aa-11(c).

1. Petitioner did not return to the United States within six months of his

vaccination, as required by § 300aa-11(c)(1)(B)(i)(III).

Petitioner did not return to the United States within six months of his vaccination. A

person who receives a vaccine made by an American vaccine manufacturer and who returns to

the United States within six months of his or her overseas vaccination may bring a petition in the

Vaccine Program. 42 U.S.C. § 300aa-11(c)(1)(B)(i)(III). As Judge Nettesheim noted in

McGowan, “There is no guidance as to why Congress drew a line at six months, yet Congress

did so and the court must honor it.” 31 Fed. Cl. at 739 (citing Amendola v. Sec’y of HHS, 989

F. 2d 1180, 1182 (Fed. Cir. 1993) (“When a statute expresses its purpose in short, clear terms,

the duty of the court is to apply the statute as written.”)).

Additionally, § 300aa-11(c)(1)(B)(i)(III) has been interpreted to require a permanent

return, meaning “an injured person must return to the United States within six months of the

vaccination date, with the intention to remain permanently from that point on.” McGowan, 31

Fed. Cl. at 740, aff’g No. 90-2446V, 1994 WL 879451 (Fed. Cl. Spec. Mstr. May 10, 1994). In

McGowan, the undersigned held that a mere physical presence within the United States was not

enough to qualify as a “return.” 1994 WL 879451 at *4. In that case, the petitioner received a

vaccination in Canada, where she resided for two years. Id. at *1. She travelled to the United

States several times within six months of her vaccination to visit her grandparents for three to

four days at a time. Id. at *3. The undersigned found that a “mere physical presence” without a

“resumption of domicile” was insufficient “to constitute a ‘return’ to the United States.” Id. at

*4. Judge Nettesheim affirmed on appeal:

To rule that “return” means simply to physically enter the United States is to

invite absurd scenarios. As the transferee special master noted, such a

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construction would allow expatriate Americans who have emigrated to other

countries or non-citizens who have visited the United States merely to return and

spend the day in the United States eligibility to petition and take advantage of the

compensation program’s ease and funding. It defies logic that Congress would

intend “return” to allow a physical presence without any intent to remain or any

duration requirement, especially where the potential of affording compensation to

visitors of the United States is present.

McGowan, 31 Fed. Cl. at 739–40 (internal citations omitted).

Petitioner resides in the Philippines and has not returned to the United States since his

vaccination. Petitioner argues that he should be viewed as never having “left” the United States

because he never intended to give up his domicile in the United States. Opp. Mot. Summ. J. at

15–16. Under petitioner’s suggested interpretation, a “return” would require only a subjective

intent to return to the United States, without any requirement of physical presence or duration.

“[A] court should seek to avoid construing a statute in a way which yields an absurd result and

should try to construe a statute in a way which is consistent with the intent of Congress.”

Hellebrand, 999 F.2d at 1570–71 (quoted in McGowan, 31 Fed. Cl. at 739). The undersigned

rejects petitioner’s interpretation of “return” as requiring subjective intent without physical

presence. McGowan stands for the premise that both a physical presence and a subjective intent

to remain in the United States are required to meet the Vaccine Act’s “return” requirement.

Congress unequivocally required a petitioner receiving a vaccination overseas to return to the

United States within six months of his vaccination, unless he is a member of the Armed Forces

or a federal employee. It is clear that Mr. Griffin does not qualify as a petitioner under § 300aa-

11(c)(1)(B)(i)(III).

2. Petitioner is not a member of the Armed Forces or a federal employee, as

required by § 300aa-11(c)(1)(B)(i)(II).

a. Member of the Armed Forces

Petitioner is not a member of the Armed Forces. The “‘Armed Forces’ means the Army,

Navy, Air Force, Marine Corps, and Coast Guard.” Gonzalez v. Dep’t of Army, 718 F.2d 926,

928 (9th Cir. 1983) (quoting 10 U.S.C. § 101(4) (2012)). Reserve members and National Guard

members may also be considered members of the Armed Forces. See U.S. Armed Forces

Overview, Military.com, http://www.military.com/join-armed-forces/us-military-overview.html

(last accessed March 25, 2014). In contrast, petitioner repeatedly refers to himself as a “civilian

government employee.” A civilian is generally defined as a person who is not a member of the

military or Armed Forces. See Webster’s Ninth New Collegiate Dictionary 244 (1980) (defining

a “civilian” as “one not on active duty in a military, police, or fire-fighting force”). While

petitioner complied with certain requirements imposed by the Army, such as medical clearances,

he did not undergo basic training or any of the other steps that are indicia of being a member of

the Armed Forces. No source that the undersigned has found has identified civilians such as

petitioner to be “members of the Armed Forces.” For these reasons, it is unlikely that Congress

intended a civilian employee of a defense contractor to be considered a “member of the Armed

Forces.”

10

b. Federal Employee

Petitioner is not a federal employee. It is unlikely that Congress meant to include private

contract employees, each of whom may be under varying levels of control by the federal

government, as federal employees. Even under a common law agency analysis, the federal

government did not exert enough control over the manner and means of petitioner’s employment

to qualify as his employer or joint employer. An analysis of the contract belies any

representation by petitioner that it was his belief that the government was his employer. Most of

the aspects of his employment were controlled by Fluor, not the Department of Defense.

i. Meaning of “Employee”

The Vaccine Act does not define “employee.” Various definitions exist throughout case

law, statutory law, and dictionary definitions. Most common dictionary definitions for

“employee” focus on receiving payment for one’s services. Webster’s Dictionary defines an

employee as “one employed by another usu. for wages or salary and in a position below the

executive level.” Webster’s Ninth New Collegiate Dictionary 408 (1989); see also Random

House Dictionary of the English Language 638 (2d ed. 1987) (“a person working for another

person or a business firm for pay”); American Heritage Dictionary 450 (2d College ed. 1985) (“a

person who works for another in return for financial or other compensation”).

The Supreme Court has directed that where Congress does not clearly indicate otherwise,

courts should use common law agency principles to determine whether someone is an

“employee.” Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322–23 (1992) (discussing that

under both the Copyright Act of 1976 and the Employee Retirement Income Security Act of

1974 (“ERISA”), the common law agency test should be used). The Court stated that it is a

“well established” principle that “[w]here Congress uses terms that have

accumulated settled meaning under . . . the common law, a court must infer,

unless the statute otherwise dictates, that Congress means to incorporate the

established meaning of these terms. . . . In the past, when Congress has used the

term ‘employee’ without defining it, we have concluded Congress intended to

describe the conventional master-servant relationship as understood by common-

law agency doctrine.”

Id. (quoting Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 739–40 (1989)). The Court

noted that ERISA’s “definition of ‘employee’ as ‘any individual employed by an employer’ . . .

is completely circular and explains nothing.” Darden, 503 U.S. at 323 (citation omitted). The

Court then summarized its common law agency test:

“In determining whether a hired party is an employee under the general common

law of agency, we consider the hiring party’s right to control the manner and

means by which the product is accomplished. Among the other factors relevant to

this inquiry are the skill required; the source of the instrumentalities and tools; the

location of the work; the duration of the relationship between parties; whether the

hiring party has the right to assign additional projects to the hired party; the extent

11

of the hired party’s discretion over when and how long to work; the method of

payment; the hired party’s role in hiring and paying assistants; whether the work

is part of the regular business of the hiring party; whether the hiring party is in

business; the provision of employee benefits; and the tax treatment of the hired

party.”

Id. (quoting Reid, 490 U.S. at 751–52). “No one of these factors is determinative.” Reid, 490

U.S. at 752.

The Court also cited the Second Restatement, which lists various factors related to the

common law agency analysis:

In determining whether one acting for another is a servant or an independent

contractor, the following matters of fact, among others, are considered: (a) the

extent of control which, by the agreement, the master may exercise over the

details of the work; (b) whether or not the one employed is engaged in a distinct

occupation or business; (c) the kind of occupation, with reference to whether, in

the locality, the work is usually done under the direction of the employer or by a

specialist without supervision; (d) the skill required in the particular occupation;

(e) whether the employer or the workman supplies the instrumentalities, tools, and

the place of work for the person doing the work; (f) the length of time for which

the person is employed; (g) the method of payment, whether by the time or by the

job; (h) whether or not the work is a part of the regular business of the employer;

(i) whether or not the parties believe they are creating the relation of master and

servant; and (j) whether the principal is or is not in business.

Restatement (Second) of Agency § 220(2) (1958) (cited in Darden, 530 U.S. at 324). The Court

stated, “[s]ince the common-law test contains ‘no shorthand formula or magic phrase that can be

applied to find the answer, . . . all of the incidents of the relationship must be assessed and

weighed with no one factor being decisive.’” Darden, 530 U.S. at 324 (quoting NLRB v. United

Ins. Co. of America, 390 U.S. 254, 258 (1968)).

Petitioner relies heavily on the interpretation of employment relationships under Title

VII3, arguing that he had joint employers: while he was undoubtedly an employee of Fluor, he

also saw himself as a federal employee controlled substantially by DOD. See Suppl. Resp. at 10.

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating based on race,

sex, color, religion, and national origin. 42 U.S.C. § 2000e (2006). The Equal Employment

Opportunity Act of 1972 expanded upon Title VII, protecting “employees or applicants for

employment” in federal executive agencies and defined units of other branches from

discrimination. 86 Stat. 111 § 717 (1972) (codified as 42 U.S.C. § 2000e-16(a) (2006)).

3

Petitioner also cites International Union v. Clark, 2006 WL 2598046 (D.D.C. Sept. 11, 2006), in which

the court used a joint employment test to determine whether the federal government exercised sufficient

control over Court Security Officers (“CSOs”) for the purposes of the CSOs’ suit under the Rehabilitation

Act of 1973.

12

Under Title VII, courts have determined that a person can have dual employers in both

the context of private employers and government employers. See Magnuson v. Peak Technical

Serv., Inc., 808 F. Supp. 500 (E.D. Va. 1992) (addressing private employers); see also Harris v.

Att’y Gen., 657 F. Supp. 2d 1 (D.D.C. 2009); King v. Dalton, 895 F. Supp. 831 (E.D. Va. 1995);

Spirides v. Reinhardt, 613 F.2d 826 (D.C. Cir. 1979) (all addressing public employers). Courts

have used the eleven-factor test articulated in Spirides to determine whether the putative

employer possesses the “right to control the ‘means and manner’ of the worker’s performance.”

Spirides, 613 F.2d at 831. Other courts have referred to the Spirides test as a “hybrid

employment test (which combines the economic realities test and the common law agency test).”

Lopez v. Johnson, 333 F.3d 959, 962 (9th Cir. 2003). Under the Spirides test, the most important

factor is the employer’s right to control the individual’s work, but other relevant factors are

considered, including:

(1) the kind of occupation, with reference to whether the work usually is done

under the direction of a supervisor or is done by a specialist without supervision;

(2) the skill required in the particular occupation; (3) whether the “employer” or

the individual in question furnishes the equipment used and the place of work; (4)

the length of time during which the individual has worked; (5) the method of

payment, whether by time or by the job; (6) the manner in which the work

relationship is terminated; [i].e., by one or both parties, with or without notice and

explanation; (7) whether annual leave is afforded; (8) whether the work is an

integral part of the business of the “employer”; (9) whether the worker

accumulates retirement benefits; (10) whether the “employer” pays social security

taxes; and (11) the intention of the parties.

Spirides, 613 F.2d at 832 (quoted in King, 895 F. Supp. at 838). This test also demands analysis

of the “‘economic realities’ of the work relationship,” looking at the totality of the

circumstances. Spirides, 613 F.2d at 831. Additionally, the Harris court looked at the “parties’

understandings of their anticipated roles,” as well as whether the individual’s tasks were

“integral to the [putative employer’s] overall mission.” Harris, 657 F. Supp. 2d at 10–11.

Petitioner focuses heavily on the two latter factors in his briefs.

Petitioner cites to the only other case addressing this specific issue in this Program, in

which then-Special Master Abell analyzed the meaning of “employee” within § 300aa-

11(c)(1)(B)(i)(II) of the Vaccine Act. Andrews v. Sec’y of HHS, No. 90-3196V, 1996 WL

300644 (Fed. Cl. Spec. Mstr. May 22, 1996). Special Master Abell’s decision is not binding on

the undersigned. “It is well-settled that ‘[s]pecial masters are neither bound by their own

decisions nor by cases from the Court of Federal Claims, except, of course, in the same case on

remand.’” Rickett v. Sec’y of HHS, 468 F. App’x 952, 959 (Fed. Cir. 2011) (quoting Hanlon v.

Sec’y of HHS, 40 Fed. Cl. 625, 630 (Fed. Cl. 1998), aff’d, 191 F.3d 1344 (Fed. Cir. 1999)).

Nevertheless, Andrews is relevant. In Andrews, Special Master Abell, looking to the

surrounding statutory terms and purpose of the Vaccine Act, concluded that “one’s status as a

federal employee need not be formal.” Id. at *4. He reasoned that since the Vaccine Act

mentions the employment relationship “only in the context of the person’s presence outside the

United States,” the key aspect within the employment relationship is the authority to assign the

13

person to a location outside of the United States. Id. at *5. Special Master Abell held that

employees are persons

who act, formally or informally, in an official capacity on behalf of the United

States, or who perform services for the United States similar to those who are

otherwise considered employees of the federal government, regardless of the

source of salary or wage. Additionally, the United States must be able to exercise

that quantum of control relevant to this Act, viz., authority to station personnel

extra-territorialy [sic].

Id. He concluded that the petitioner’s father was an employee of the United States because, even

though his employment contract was with the Near East Foundation rather than with USAID, he

served the United States’ interest by performing services that the United States was contractually

obligated to perform, maintained an office at the United States Embassy, underwent a security

clearance, and was subject to USAID leave regulations. Id. at *1, *6–*7. He emphasized the

importance of the State Department’s issuing a diplomatic passport to petitioner’s father, finding

it indicated a “close, official relationship with the United States.” Id. at *6. He found the

diplomatic passport “the most compelling evidence that petitioner’s father was a federal

employee.” Id. He also found that USAID controlled petitioner’s father because it determined

whether he could take leave out of the country. Id. at *7.

Special Master Abell found it sufficient to qualify under the Vaccine Act as a federal

employee if a person acted in an official capacity on behalf of a federal agency or performed

personal services similar to the services of a civil officer or federal employee. Id. at *5. He

found the key aspect of employment status was the employer’s authority to assign the person in

question outside United States’ territory. Id. The undersigned disagrees with Special Master

Abell’s analysis of the meaning of “an employee of the United States” within the Vaccine Act.

42 U.S.C. § 300aa-11(c)(1)(B)(i)(II). As mentioned previously, the Supreme Court has directed

that, unless Congress has indicated otherwise, common law agency analysis should be used to

determine a person’s status as an employee, and the factors emphasized by Special Master Abell

(whether someone acted in an official capacity or whether an employer had the authority to

assign a person overseas) are not emphasized in general agency law. Darden, 503 U.S. at 322–

23. Special Master Abell asserted that the reason federal employees need not demonstrate they

received a vaccine manufactured in the United States or returned to the United States within six

months of their vaccination, as individuals under § 300aa-11(c)(1)(B)(i)(III) must do, “must lie

in the federal government’s authority to locate individuals extra-territorially in order to

accomplish national objectives,” but there is no evidence that this was Congress’s reasoning.

Andrews, 1996 WL 300644, at *5. The legislative history is silent as to the reason Congress

gave preferential treatment to members of the military and federal employees overseas in

comparison to other Americans overseas. The undersigned also notes the factual differences

between Andrews and the instant action. In this case, petitioner did not have a diplomatic

passport, and he was required to avoid creating the impression that he was a member of the

military or a federal employee. Nor is there any evidence that the military, rather than Fluor,

determined where petitioner would be located.

14

ii. Common Law Agency Analysis

Given the overwhelming legal authority applying traditional agency law when Congress

fails to satisfactorily define “employee” within a statute, the undersigned concludes that the

traditional agency test is the appropriate test to apply in this circumstance. See Nationwide Mut.

Ins. Co. v. Darden, 503 U.S. 318, 323 (1992); New York Life Ins. Co. v. United States, 190 F.3d

1372, 1382 (Fed. Cir. 1999); Bender v. Suburban Hosp., Inc., 159 F.3d 186, 190 (4th Cir. 1998);

Frankel v. Bally, Inc., 987 F.2d 86, 90 (2d Cir. 1993). The undersigned will apply the factors

given by the Supreme Court and in the Second Restatement of Agency. Since petitioner has

focused heavily on the Spirides factors, which are highly similar to those considered under the

traditional agency test, the undersigned will also analyze those factors. More simply stated, the

question is whether, under the totality of the circumstances, the federal government exhibited the

requisite control over the manner and means of petitioner’s employment to qualify as his

employer.

First, one must analyze the level of control the government exercised over the details,

manner and means, and hours of petitioner’s work. Reid, 490 U.S. at 751; Restatement (Second)

of Agency § 220(2); Spirides, 613 F.2d at 832. This is often the most important factor. Spirides,

613 F.2d at 831. The government exhibited some control over petitioner’s employment.

Petitioner emphasizes the Army’s authority to set hiring qualifications as evidence of its control.

For example, employees of Fluor were required to pass DOD health, security, and background

clearances. Ex. 11, at 5, 30. The contract also provides that the government retains control in

certain areas related to safety of contractor personnel. For example, the State Department has

responsibility for evacuating non-essential personnel in an emergency. Id. at 30. The

government also retains federal jurisdiction over contractor personnel in the event that they

commit a crime while abroad and serving alongside the Armed Forces. Id. at 33. In the

undersigned’s view, these areas of control reserved by the government are not highly significant

in terms of an employer/employee relationship. These areas relate not to the everyday

performance of the agent’s duties, but rather are understandable and necessary measures related

to the safety and security of both the contractor employees and members of the military.

Traditional agency analysis has tended to focus on the level of control over the day-to-day

physical details of the agent’s job.4

4

For example, the Restatement defines an agent as “a person employed to perform services in the affairs

of another and who with respect to the physical conduct in the performance of the services is subject to

the other’s control or right to control.” Restatement (Second) of Agency § 220(1) (emphasis added).

Comment E of the Second Restatement elaborates on this point:

Those rendering service but retaining control over the manner of doing it are not servants.

They may be agents, agreeing to use care and skill to accomplish a result and subject to

the fiduciary duties of loyalty and obedience to the wishes of the principal; or they may

be persons employed to accomplish or to use care to accomplish physical results, without

fiduciary obligations, as where a contractor is paid to build a house. An agent who is not

subject to control as to the manner in which he performs the acts that constitute the

execution of his agency is in a similar relation to the principal as to such conduct as one

who agrees only to accomplish mere physical results. For the purpose of determining

liability, they are both “independent contractors” . . . .

15

Furthermore, even though the government required that petitioner pass various

clearances, Fluor was the responsible party for ensuring that these criteria were met. The

contract provided that Fluor was responsible for ensuring that employees were medically and

physically fit and stated that immunizations and pre-deployment medical screenings were to be

provided at Fluor’s expense. Ex. 11, at 30; Ex. 15, at 4. It also provided that Fluor was

responsible for providing another qualified employee if the government determined that a

contractor employee did not meet the requisite health or security requirements. Ex. 11, at 31. In

fact, it was Fluor, not the Army, who notified petitioner when he passed his security clearance.

Ex. 19, at 2.

Fluor was responsible for other important areas related to petitioner’s employment as

well. The contract provided that Fluor was responsible for obtaining passports, visas, and other

required documents for its employees. Ex. 11, at 31. (This differs from a key factor in Andrews,

1996 WL 300644 at *6, where Special Master Abell found it highly significant that the

petitioner’s father in that case was granted a diplomatic passport.)

Consistent with a traditional agency analysis, petitioner also asserts that his day-to-day

activities were controlled by the military. He states that most of his daily contact was with

military members and that he had weekly meetings with military commanders, in which they

discussed action items, progress on previous action items, deadlines, and materials needed.

Griffin Decl. ¶ 7, Dec. 18, 2013. Petitioner also met weekly via telephone with his Fluor

supervisor, along with ten other site managers. Id. He asserts that he reported to his Fluor

supervisor, but military officers instructed him as to his duties. Id. Petitioner writes in his

affidavit, “The government, through their regulations, controlled how my job duties were done

and how decisions were made.” Id. at ¶ 11. Again, the undersigned does not find these aspects

of control to be determinative of an employer/employee relationship. Agency analysis tends to

focus on the principal’s control of the physical details of a servant’s actions. See supra note 4.

Rather than providing factual details indicative of control, petitioner provides mostly conclusory

statements that the government was “calling the shots.” Griffin Decl. ¶ 7, Dec. 18, 2013. It is

unsurprising that much of petitioner’s daily contact was with military members, as the purpose

for Fluor being in Afghanistan was to support military operations. In fact, petitioner met weekly

with both his Fluor supervisor and with government officials, thus indicating that Fluor had at

least an equivalent level of control over the details of his work. Military officers may have been

directing petitioner as to the results they wanted him to achieve, but petitioner has not presented

facts that the military controlled the “manner of” achieving those results. Spirides, 613 F.2d at

831–32 (“If an employer has the right to control and direct the work of the individual, not only as

to the result to be achieved, but also as to the details by which that result is achieved, an

employer/employee relationship is likely to exist.”); see also supra note 4. Petitioner asserts that

he “discussed” his responsibilities with military officials at weekly meetings. Griffin Decl. ¶ 7,

Dec. 18, 2013. This suggests that he was not merely taking orders. Moreover, petitioner’s

description of himself as a skilled worker with knowledge about various construction areas and

an understanding of Army regulations suggests that he used these skills to exercise independent

judgment in his management decisions.

Id.

16

Another factor to consider is whether petitioner’s work was a “part of [the Army’s]

regular business,” Restatement (Second) of Agency § 220(2), or stated another way, whether it

was part of the Army’s “integral” business. Spirides, 613 F.2d at 832. Related to this analysis is

whether petitioner had specific skills that would weigh in favor of his being an independent

contractor. Reid, 490 U.S. at 751; Restatement (Second) of Agency § 220(2); Spirides, 613 F.2d

at 832; see also Izard v. United States, 946 F.2d 1492, 1494 (10th Cir. 1991) (reciting state law

agency tests under which, “[i]f the contract work is specialized per se, it is not, as a matter of

law, part of the principal’s trade, business, or occupation”); Restatement (Second) of Agency

§ 220(2), Comment H (noting that “work which does not require the services of one highly

educated or skilled” is a factor indicating a master/servant relationship).

Fluor provided support services to DOD, including food services, latrines, waste

management, facilities and construction management. Ex. 11, at 16. Petitioner was a site

manager in Afghanistan. Griffin Decl. ¶ 12, Dec. 18, 2013. He describes his job as akin to a

project manager. Id. His job required knowledge about “budgeting, the military’s network,

supervising, ordering of supplies, communicating, as well as . . . a basic knowledge regarding

laundry, showers, latrines . . . plumbing, electrical, and cooking.” Id. Petitioner notes that his

knowledge and management of all these areas were based upon Army regulations. Id. Petitioner

asserts that he “was hired to do a specialized job that was part of the military’s mission.” Id. at

¶ 10. Focusing on the Harris decision, in which the District Court applied the Spirides factors,

petitioner argues that his work was “integral to the overall mission” of the military. Harris, 657

F. Supp. 2d at 11. Petitioner argues that subcontractors like himself are “akin to the ‘Draft.’”

Griffin Decl. ¶ 10, Dec. 18, 2013. He argues that if the military did not employ subcontractors,

soldiers would have to do the jobs that the subcontractors currently carry out. Id.

While it is true that petitioner’s job was necessary to the business of the military,

petitioner’s argument misconstrues the purpose of this factor in an agency analysis. In Harris,

the District Court of the District of Columbia found that an independent contractor working as a

Personnel Security Specialist at the Executive Office of United States Attorneys (“EOUSA”) of

the Department of Justice was a federal employee. In that case, one of EOUSA’s “stated ‘major

functions’ [was] to ‘[p]rovide operating personnel and security administrative services.” 657 F.

Supp. 2d at 11. The stated mission of DOD is to “provide the military forces needed to deter war

and to protect the security of our country.” About the Department of Defense (DOD), U.S.

Department of Defense, www.defense.gov/about/ (last visited March 28, 2014). Unlike the

Harris plaintiff who was herself carrying out a core function of the organization, Mr. Griffin

provided support services, which though necessary, were secondary to the core mission of the

military. Additionally, the fact that he describes himself as doing a specialized job with specific

skills weighs in favor of an independent contractor relationship.

Additional factors considered in an agency analysis are the location of the employee’s

work and whether he provided his own tools and instrumentalities. Reid, 490 U.S. at 751;

Restatement (Second) of Agency § 220(2); Spirides, 613 F.2d at 832. In this case, the contract

provides that the government furnish the place of performance and the property necessary for

Fluor’s provision of support services. Ex. 11, at 28. Petitioner argues that the military controlled

his work environment and furnishing, since he worked on the military base. Suppl. Resp. at 7.

He asserts that the government controlled his office space, equipment, and supplies, including

17

calculators, pens, and paper. Griffin Decl. ¶ 13, Dec. 18, 2013. He states that the government

was required to sign off on all requisitions for the equipment or materials necessary to do his job.

Id. This factor does weigh in favor of an employer/employee relationship. However, as stated

above, no single factor in an agency analysis is determinative. Reid, 490 U.S. at 752. Moreover,

the contract provides that the contractor (Fluor) is to provide the government with a list of all

property required to fulfill their contractual obligations, Ex. 11, at 29, meaning that Fluor

maintained some level of control over the tools and instrumentalities used during the work.

Another factor to be considered under the Spirides test is the method of termination.

Spirides, 613 F.2d at 832. Petitioner argues that United States Army officials had control over

his performance reviews and had the power to have him fired if they were not pleased with his

work performance. Griffin Decl. ¶ 8, Dec. 18, 2013. However, petitioner gives no details as to

how the military influenced his performance reviews. The contract provides that “government

representatives may advise the Contractor of any poor performance in order to provide the

opportunity for improvement during the evaluation period.” Ex. 11, at 35 (emphasis added).

Although the government could direct Fluor to “remove” contract personnel for failure to

comply with the contract, Id. at 75, it does not give the government the power to fire petitioner.

Rather, petitioner concedes that Fluor had the ultimate authority to terminate his employment.

Supp. Resp. at 8. Thus, the method of termination factor weighs in favor of Fluor being

petitioner’s employer.

Other relevant factors include the method of payment and an employee’s benefit and tax

treatment. Reid, 490 U.S. at 751–52; Restatement (Second) of Agency § 220(2); Spirides, 613

F.2d at 832. The contract specifies a schedule and criteria for the amount of fees awarded to

Fluor. Ex. 11, at 35–36. In addition, the contract provides that the government will not

reimburse the contractor for any costs deemed unreasonable, and that any base pay or allowance

increases in excess of 10% should be approved by the contracting officer. Ex. 11, at 37.

Petitioner was paid an hourly rate by Fluor. Ex. 8, at 2–3; Ex. 9, at 1–2. Federal income

taxes were taken from his Fluor paycheck. Ex. 9, at 1–3. There is no evidence that he received

retirement benefits through the federal government. He was not eligible for Tricare or other

federal government employee health benefit plans. His health and dental care were provided

through Fluor. Ex. 9, at 1–3; Ex. 20, at 1 (identifying “Chartis” as his health insurance carrier).

In fact, the contract explicitly limits the government’s responsibility to provide medical care to

contractor personnel, authorizing only emergency medical care, the cost of which was to be

reimbursed by Fluor. Ex. 11, at 31. Petitioner received the flu vaccine at a Fluor medical clinic.

Ex. 5, at 3. When petitioner became ill, his medical treatment was authorized by a physician at

Fluor Medical Clinic, not at a medical clinic operated by the Army. Ex. 20, at 1. Each of these

factors involving payment and employment benefits indicates that he was an employee of Fluor,

not an employee of the federal government.

Another factor is the belief or intent of the parties regarding their employment

relationship. Restatement (Second) of Agency § 220(2); Spirides, 613 F.2d at 832. While

petitioner asserts that he felt as if he were a member of the Armed Forces and a federal

employee, all objective evidence manifests the parties’ clear intent that Fluor be treated as an

independent contractor and that Fluor’s employees not be treated as federal employees. The

18

contract between Fluor and the government states that “the awardee [Fluor] will operate as an

independent contractor and not as an agent of the U.S. Government or U.S. Army.” Ex. 11, at 3.

It specifies that “[c]ontractor personnel are prohibited from wearing military clothing unless

specifically authorized,” and even then, contractor personnel must “[w]ear distinctive patches,

arm bands, nametags, or headgear, in order to be distinguishable from military personnel.” Id. at

75. It also states:

All contractor personnel attending meetings, answering Government telephones,

corresponding by email and working in other situations where their contractor

status is not obvious to third parties are required to identify themselves as such to

avoid creating an impression that contracted personnel are Government

employees, or official representatives of a Governmental organization.

Id. at 19. The contract required that contractors wear badges, from which an individual could

identify them as a contracted employee by a minimum distance of ten feet. Id.

Based on the contract language and petitioner’s treatment while on base, it is apparent

that there was a clear distinction between contractor employees and federal employees/members

of the Armed Forces. Additionally, petitioner listed Fluor as his employer in his workers’

compensation claim, thus exhibiting that he understood himself to be an employee of Fluor—not

a member of the Armed Forces or federal employee. Ex. 20, at 1, 3, 5.

A comparison to other cases reinforces the conclusion that petitioner was the employee of

an independent contractor rather than a federal employee. In International Union v. Clark, a case

cited in petitioner’s brief, the District Court of the District of Columbia determined that Court

Security Officers (“CSOs”) were joint employees of both the United States Marshal Services

(“USMS”) and private contractors. 2006 WL 2598046 (D.D.C. 2006). In that case, the

contractors conducted initial employment screenings, paid the CSOs’ salaries, provided their

benefits, withheld taxes on their behalf, maintained their time and attendance records, and had

the ultimate power to terminate their employment. Id. at *2. However, USMS set medical,

physical, and weapons proficiency standards; interviewed prospective CSOs; performed

background checks; supplied essential equipment; conducted the bulk of the CSOs’ training;

performed performance reviews based on specific standards; determined the CSOs’ daily duties;

and retained the power to decide whether the CSOs should be removed from the contract for

failure to meet the qualifications USMS set for the job (which invariably led to termination of the

CSO’s employment by the contractor). Id. at *6–*8.

In Harris v. Attorney General, the District Court for the District of Columbia found that a

Personnel Security Specialist working in the Executive Office for United States Attorneys

(“EOUSA”) in the Department of Justice was a federal employee. 657 F. Supp. 2d 1 (D.D.C.

2009). In that case, an independent contractor hired the plaintiff, but EOUSA screened and

interviewed her before she was hired. Id. at 3. EOUSA supervised contractor employees, set

their schedules and duties, and gave them performance evaluations, while the independent

contractor supervisor had very little contact with the contractor employees and acted “more as a

liaison.” Id. at 11. EOUSA provided the location and essential equipment for work. Id. at 12.

The court found that the plaintiff’s services were “integral to [EOUSA’s] business” and that

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contractor employees provided the same services and received the same supervision as federal

employees at EOUSA. Id. at 11–12. Thus, even though the contractor provided the plaintiff’s

salary, benefits, and vacation time; withheld Social Security taxes on her behalf; and had the

ultimate authority to terminate the plaintiff, EOUSA exercised greater control over the plaintiff’s

employment. Id. at 11–13.

In contrast, in Redd v. Summers, the Court of Appeals for the District of Columbia

Circuit found that a contract employee who worked as a tour guide in the Treasury Department’s

Bureau of Engraving and Printing was not a federal employee. 232 F.3d 933 (D.C. Cir. 2000).

In that case, the Treasury Department provided the equipment used and place of work. Id. at

939–40. The court also determined that the plaintiff’s Treasury Department supervisor involved

herself in the “means and manner” of the plaintiff’s work for “one short period,” when the

supervisor helped the plaintiff to “improve her tour presentation over the course of five or six

meetings.” Id. at 938. However, the court found that these factors were outweighed by the

factors indicating that the contractor was her employer: the Treasury Department did not train

plaintiff; the contractor provided the majority of supervision over the “means and manner” of

plaintiff’s work performance; tours were part of the Treasury Department’s public relations, not

an integral part of its business; the contractor retained sole authority to terminate the plaintiff,

even though the contract allowed the Treasury Department to reject any guide; and the contractor

paid the plaintiff’s wages, provided her vacation time, and paid Social Security taxes on her

behalf. Id. at 938–40.

A comparison of petitioner’s case to that of the CSOs in Clark reveals fewer factors

weighing in favor of federal employment. In contrast to Clark, where USMS was involved in the

hiring, training, and background clearances of the CSOs, petitioner has not presented any

evidence that the Army trained him or interviewed him during his hiring process, and it was

Fluor who oversaw his medical and security clearances, not the Army. This case can also be

distinguished from Harris. Petitioner’s Fluor supervisor certainly acted as more than a nominal

supervisor or a liaison with the Army, as shown by her weekly meetings with petitioner. Unlike

in Harris where contractor personnel performed essentially the same services as federal

employees, there is no evidence that federal employees or members of the military performed

duties similar to petitioner. The level of control over the manner and means of petitioner’s work

performance is also less significant than in Clark and Harris, where the government determined

the daily duties and tasks of contractor personnel and monitored their time and attendance. Here,

the Army did not significantly control the means and manner of petitioner’s work performance—

petitioner merely had meetings with Army officials and was influenced by Army regulations,

factors that could be present in many independent contractor relationships. Also, as discussed

above, petitioner’s duties were not a part of the military’s “integral business.” Rather, this case

is more like Redd. As in Redd, even though the contract gave the government power to remove

or reject contractor personnel, the independent contractor retained the ultimate authority to

terminate its employees. Just as in Redd, the federal government provided the equipment used

and place of work, but the contractor trained petitioner, paid his salary and Social Security taxes,

and provided his vacation time.

In sum, petitioner was the employee solely of the independent contractor Fluor, rather

than a federal employee or a joint employee of the government and Fluor. While the government

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exhibited some control over petitioner in the form of requiring security and medical clearances,

supplying the location and tools for employment, engaging in weekly meetings and daily contact

with petitioner, and contributing to petitioner’s evaluations, the majority of factors, including

those that are the most objective and easy to ascertain, weigh in favor of petitioner being the

employee solely of the independent contractor, Fluor. He was a skilled worker doing specialized

support work for the military. The contract repeatedly refers to the relationship as that between

an employer and an independent contractor. Fluor paid petitioner, provided his health benefits,

gave him vacation time, and was considered his employer for tax purposes. Fluor hired

petitioner and retained the authority to terminate him.

There is “no genuine dispute as to any material fact” presented. Fed. R. Civ. P. 56(a).

Even when interpreting “all justifiable inferences” in favor of petitioner, Jay, 998 F.2d at 982,

petitioner has not presented probative evidence to show he was a federal employee or member of

the Armed Forces. Rather, the evidence shows that he was solely the employee of Fluor, an

independent contractor.

Contrary to petitioner’s assertion that the Vaccine Act’s legislative purpose requires a

broad interpretation of “employee” to include federal contract employees, the undersigned finds

significant legislative history supporting a more narrow approach. As the Federal Circuit has

stated, “We cannot disturb the legislative choices Congress made in adopting this compensation

scheme.” Tembenis v. Sec’y of HHS, 733 F.3d 1190, 1199 (Fed. Cir. 2013), rev’g 2012 WL

5395405 (Fed. Cl. Oct. 19, 2012), denying review, 2012 WL 3744722 (Fed. Cl. Spec. Mstr. July

31, 2012), cert. pending, 2014 WL 325699 (U.S. Jan. 24, 2014) (holding that Congress did not

choose to permit an award of future lost wages in cases where the petitioner dies prior to

compensation judgment). The undersigned cannot ignore the limits Congress imposed on

persons vaccinated overseas, as well as within the United States. The Vaccine Program is

grounded in a limited waiver of sovereign immunity. For example, petitioners may recover only

if they have suffered sequelae due to a vaccine injury for more than six months, died as a result

of the vaccination, or suffered inpatient hospitalization and surgical intervention as a result of the

vaccination. 42 U.S.C. § 300aa-11(c)(1)(D)(i). Petitioners’ spouses are not eligible to recover

damages for loss of consortium. 42 U.S.C. § 300aa-11(b)(1)(A). Just as Congress imposed these

conditions to limit who may sue, Congress placed clear limits on who may sue under the Vaccine

Program after receiving a vaccine overseas, and these limits may not be disturbed. Congress, in

creating the Vaccine Program, was concerned about the spread of infectious disease from

overseas to this country, and thus in order to encourage persons overseas to receive vaccines,

allowed people who were likely to return to the United States to file a petition if they had a

vaccine reaction. Petitioner was not a federal employee or a member of the Armed Forces. He

does not meet the requirements of § 300aa-11(c)(1)(B)(i)(II). Petitioner did not return to the

United States within six months of his vaccination. He does not meet the requirements of

§ 300aa-11(c)(1)(B)(i)(III). For these reasons, petitioner is not a valid petitioner under the

Vaccine Act.

CONCLUSION

Respondent’s motion for summary judgment is GRANTED. Petitioner’s claim is

DISMISSED.

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In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of

the court is directed to enter judgment herewith.5

IT IS SO ORDERED.

Dated: April 4, 2014 /s/ Laura D. Millman

Laura D. Millman

Special Master

5

Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or

jointly, filing a notice renouncing the right to seek review.

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