Dupuch-Carron v. Secretary of Health and Human Services

In the United States Court of Federal Claims

No. 17-1551V

(Filed Under Seal: September 10, 2019)

(Reissued for Public Availability: September 25, 2019) 1

)

ROBERT DAVID DUPUCH-CARRON )

and ELIZABETH JOANNA CARRON, )

as the legal representatives of their )

minor son, A.R. D-C., )

) Statutory interpretation; National Vaccine

Petitioners ) Injury Compensation Act, 42 U.S.C.

) §§300aa-1 et seq.; the Vaccine Act; 42

v. ) U.S.C. § 300aa-11(c)(1)(B)(i); Return

)

SECRETARY OF HEALTH AND )

HUMAN SERVICES, )

)

Respondent. )

)

Curtis R. Webb, Twin Falls, ID, for petitioners.

Lisa Ann Watts, Torts Branch, Civil Division, United States Department of Justice, Washington,

DC, for respondent.

MEMORANDUM OPINION

HERTLING, Judge

The petitioners, Robert David Dupuch-Carron and Elizabeth Joanna Carron, husband and

wife, are the legal representatives of the estate of their deceased son, A.R. D-C. They filed this

action seeking compensation for injuries allegedly compensable under the National Vaccine

Injury Compensation Act, 42 U.S.C. §§ 300aa-1 et seq. (“the Vaccine Act”). On the parties’

cross-motions for summary judgment, the Special Master ruled that the petitioners are ineligible

to receive compensation under the Vaccine Act, granted the respondent’s motion, and dismissed

the petition. See Dupuch-Carron v. Sec’y of Health & Human Servs., 2019 WL 22663369

(“Dupuch-Carron”). The petitioners filed this motion for review pursuant to 42 U.S.C. § 300aa-

12(e).

1

Pursuant to Vaccine Rule 18(b), this opinion was initially filed on September 10, 2019, and the

parties were afforded 14 days to propose redactions. The parties did not propose any redactions.

Accordingly, this opinion is reissued in its original form for posting on the Court’s website.

I. Facts

A brief recitation of the facts provides necessary context. 2

The petitioners were domiciled in Nassau, The Bahamas, for the entirety of the time

period relevant to this case. Ms. Carron is a citizen of the United Kingdom and avers that she is

a “frequent visitor to the United States,” spending “10 to 12 long weekends” in the country each

year. During a trip to Coral Gables, Florida from March 24 to April 3, 2015, Ms. Carron visited

an internist, who informed her that she was pregnant. After learning she was pregnant with A.R.

D-C, she claims to have traveled to the United States an additional four times over the course of

her pregnancy.

Mr. Dupuch-Carron was born in the United States. His citizenship is not noted in the

record. He appears to have grown up in The Bahamas but recalls “spen[ding] a great deal of

time [in the United States] as a child during the summer holidays.” Mr. Dupuch-Carron avers

that he is a “frequent visitor to the United States,” spending “between 30 and 45 days in the

United States on business” in a typical year.

A.R. D-C was born on November 24, 2015, at Doctors Hospital in Nassau, The Bahamas.

He continued to live in Nassau for the first six months of his life. During his first six months,

A.R. D-C had unremarkable well-child visits at Precious Posterity Pediatric Centre in Nassau,

and was considered to be healthy and developing normally. He also received his first two sets of

vaccinations in Nassau, apparently with no adverse consequences.

On June 23, 2016, during his six-month well-child visit to his pediatrician in Nassau,

A.R. D-C received his third set of vaccinations, which included the DTap, IPV, HIB, HBV,

Prevnar, and rotavirus vaccinations. There is no dispute that the eight vaccines A.R. D-C

received during his June 23rd visit to the pediatrician are listed in the Vaccine Injury Table and

were manufactured by companies with a presence in the United States.

On July 7, 2016 and July 9, 2019, A.R. D-C presented at the pediatrician with complaints

of a fever greater that 102 degrees Fahrenheit, crankiness, stuffy nose, rattling in his chest,

occasional chesty coughs, reduced activity, vomiting, and diarrhea. On July 10, 2016, A.R. D-

C’s parents brought him to the emergency room at Doctors Hospital in Nassau with complaints

of fever and vomiting for five days, irritability, and decreased appetite. The doctors determined

he had thrombocytopenia 3 and pancytopenia 4 for which he received a blood transfusion, and

2

Because the Special Master granted summary judgment, he necessarily determined that no

material facts were in dispute. As the undisputed facts have not changed, the Court’s recitation

of the background facts herein draws from the Special Master’s opinion in Dupuch-Carron.

3

Thrombocytopenia is defined as a “decrease in the number of platelets.” Dorland’s Illustrated

Medical Dictionary 1069 (32nd ed. 2012) (“Dorland’s”) at 1922.

4

Pancytopenia is defined as a “deficiency of all cellular elements of the blood.” Dorland’s at

1368.

2

febrile neutropenia 5 for which he was given an intravenous antibiotic. On July 11, 2016, A.R.

D-C was transferred to the intensive care unit at Princess Margaret Hospital in Nassau, where a

pediatric hematologist–oncologist recommended he be transferred to an institution “equipped to

enable quick turn around and confirmation of the leukemia if present.” 6

Physicians in The Bahamas determined that A.R. D-C would receive better treatment in

the United States, and on July 13, 2016, A.R. D-C was transferred by air ambulance to Nicklaus

Children’s Hospital in Miami, Florida, where he was diagnosed with hemophagocytic

lymphohistiocytosis (“HLH”). 7 HLH is an autoimmune disease of the blood, fatal unless treated

successfully. A.R. D-C was treated at Nicklaus Children’s Hospital until he was discharged on

August 12, 2016, “on the condition he remain in Florida as an outpatient.”

A.R. D-C continued weekly treatment with Dr. Maggie Fader as an outpatient at Nicklaus

Children’s Hospital. A.R. D-C was cleared to leave the United States over the Christmas season,

so the family returned to The Bahamas. On February 28, 2017, A.R. D-C was readmitted to

Nicklaus Children’s Hospital. He was diagnosed with acute myeloid leukemia (“AML”). 8 A.R.

D-C underwent treatment, which included chemotherapy 9 and radiation 10 at Cincinnati

Children’s Hospital in Cincinnati, Ohio, as well as a bone-marrow transplant at Johns Hopkins

Bloomberg Children’s Hospital in Baltimore, Maryland.

On October 17, 2017, the petitioners filed a claim under the Vaccine Act. On December

24, 2017, A.R. D-C died from AML, and on March 26, 2018, the petitioners filed an amended

petition, alleging that the AML, which caused A.R. D-C’s death, was a complication resulting

from the treatment he had received for his vaccine-induced HLH.

II. Procedural History

Prior to the filing of the amended petition, the Special Master had identified as a

threshold question the issue of whether the petitioners were eligible for compensation under the

Vaccine Act because the vaccines were administered outside of the United States. The Special

Master directed the parties to file cross-motions for summary judgment on that limited issue.

5

Neutropenia is “an abnormal decrease in the number of neutrophils in the blood, with the

absolute neutrophil count being less than 1500/μL.” Dorland’s at 1272.

6

Leukemia is “a progressive, malignant disease of the blood-forming organs, characterized by

distorted proliferation and development of leukocytes and their precursors in the blood and bone

marrow.” Dorland’s at 1026.

7

Hemophagocytic lymphohistiocytosis is “any of several closely related disorders involving

both lymphocytosis and histiocytosis, with excessive hemophagocytosis in the lymphoreticular

system or the central nervous system.” Dorland’s at 1085.

8

Acute myeloid leukemia, also known as acute myeloblastic leukemia or acute myelogenous

leukemia, is “a common kind of acute myelogenous leukemia, in which myeloblasts

predominate.” Dorland’s at 1026.

9

Chemotherapy is “the treatment of a disease by chemical agents.” Dorland’s at 341.

10

Radiation is “energy transmitted by waves through space or through some medium; usually

referring to electromagnetic radiation when used without a modifier.” Dorland’s at 1570.

3

On March 26, 2018, concurrent with their filing of the amended petition, the petitioners

filed their Motion for Partial Summary Judgment on the limited issue of their eligibility under

the Vaccine Act for compensation. On June 7, 2018, the respondent filed its Cross–Motion for

Summary Judgment on that threshold issue. Petitioners filed their Response and Reply on July

12, 2018. On April 23, 2019, the Special Master denied the petitioners’ Motion and granted the

respondent’s.

On May 23, 2019, the petitioners filed a Motion for Review of the Special Master’s

decision, asking this Court to review and reverse the Special Master’s decision. In their Motion

for Review, the petitioners raise the following single numbered objection:

The special master’s conclusion that the petitioners were not eligible to seek

compensation from the National Vaccine Injury Compensation Program because

their son [A.R. D-C]: 1) could not be viewed as a person who was present in the

United States prior to his vaccinations; and 2) had not returned to the United

States within six months after vaccinations was not in accordance with the law.

The respondent filed its Response to the petitioners’ Motion for Review on June 20, 2019,

arguing that the Special Master’s decision on the petitioners’ eligibility to seek compensation

under the Vaccine Act was correct. With the Court’s leave, the petitioners filed their Reply on

July 5, 2019. The Court heard oral argument on the petitioners’ Motion for Review on

September 5, 2019.

III. Standard of Review

Under the Vaccine Act, this Court may review a Special Master’s decision upon the

timely request of either party. See 42 U.S.C. § 300aa-12(e)(1)-(2). The Court may: “(A) uphold

the findings of fact and conclusions of law . . . , (B) set aside any findings of fact or conclusion

of law . . . found to be arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law . . . , or, (C) remand the petition to the special master for further action in

accordance with the court’s direction.” Id. § 300aa-12(e)(2)(A)-(C). Findings of fact and

discretionary rulings are reviewed under an “arbitrary and capricious” standard, while legal

conclusions are reviewed de novo. Munn v. Sec’y of Health & Human Servs., 970 F.2d 863, 870

n.10 (Fed. Cir. 1992); see also Doyle ex rel. Doyle v. Sec’y of Health & Human Servs., 92 Fed.

Cl. 1, 5, n.8 (2010).

The sole issue in this case is whether the petitioners, who are not domiciled in the United

States, and whose son received the allegedly injurious vaccines outside of the United States, are

eligible to bring a claim under the Vaccine Act. This question requires the Court to interpret the

relevant provisions of the Vaccine Act. As a question of law, an issue of statutory interpretation

is subject to de novo review. Black v. Sec’y of Health & Human Servs., 33 Fed. Cl. 546, 549

(1995) (collecting cases).

4

IV. Discussion

A. Relevant Statutory Provisions

The Vaccine Act, 42 U.S.C. § 300aa-11(c)(1)(B)(i), delimits the categories of persons

who may pursue a claim under it. Pursuant to the relevant provision, the party seeking

compensation under the Act must show that he:

(I) received the vaccine in the United States or in its trust territories;

(II) received the vaccine outside the United States or a trust territory and 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

(III) received the vaccine outside of the United States or a trust territory and the

vaccine was 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. (emphasis added).

The petitioners do not claim that either 42 U.S.C. § 300aa-11(c)(1)(B)(i)(I) or § 300aa-

11(c)(1)(B)(i)(II) is applicable to this case. Therefore, the question before the Court is whether

42 U.S.C. § 300aa-11(c)(1)(B)(i)(III) allows the petitioner, under the specific facts of this case,

to receive compensation under the Vaccine Act.

B. The McGowan Decision

McGowan v. Secretary of the Department of Health & Human Services is the only

relevant judicial precedent. 31 Fed. Cl. 734 (1994). In McGowan, the petitioner, who was born

in the United States, received two vaccinations in Canada, where she resided and where her

father was receiving medical training. Id. at 736. Within six months of her August 20, 1965

vaccination, the petitioner entered the United States to visit her maternal grandparents. Id. She

received her second vaccine in Canada in late December 1965. Id. In April 1967, the petitioner

and her parents returned permanently to the United States. Id.

On October 1, 1990, the petitioner filed an application for compensation under the

Vaccine Act, arguing that she suffered encephalopathy as a result of her August 20, 1965

measles vaccine. 11 Id. The Special Master dismissed the petitioner’s claim, finding that she had

failed to prove, by a preponderance of the evidence, that she had returned to the United States

within six months of her August 20, 1965 measles vaccination. Id. On review, this Court

sustained the Special Master’s decision, holding that the “petitioner has failed to ‘return’ within

the meaning of 42 U.S.C. § 300aa–11(c)(1)(B)(i)(III) and fails to meet the jurisdictional

requirements of the Vaccine Act.” Id. at 740.

11

Encephalopathy is defined as “any degenerative disease of the brain.” Dorland’s at 614.

5

Just as in this case, the decisive issue in McGowan was the meaning of the word “return”

in the relevant provision of the Vaccine Act. 31 Fed. Cl. at 738. As framed by the Court, the

question “regarding the definition of ‘return’ is whether there is a sense of permanence inherent

in the word.” Id. There, as here, the “[p]etitoner argue[d] that a return is completed with the

initial entry,” while the respondent contended that “a ‘return’ requires at least an intention to

remain, from that moment on, as a permanent resident of the United States.” Id.

The McGowan Court found that the simple dictionary definitions of “return” “shed little

light on the issue.” Id. Instead, the Court canvassed the legislative history of the Vaccine Act to

determine the legislative purpose behind its enactment. The Court identified two goals

underlying the Act’s implementation. The first was “to ‘offer fair compensation to victims’

injured in connection with childhood vaccination programs[.]” Id. (quoting H.R. 1780, 99th

Cong., 1st Sess. (1985); S. 827. 99th Cong., 1st Sess. (1985); H.R. Rep. No. 99-908 pt. 1 at 7

(1986), reprinted in 1986 U.S.C.C.A.N. 6344, 6367). The second was “to insure the ‘continued

supply of vaccines that are vital to the public health.’” Id. at 739 (quoting same).

In interpreting 42 U.S.C. § 300aa-11(c)(1)(B)(i)(III), the McGowan Court held “[a]n

injured person who does not intend to return to live in the United States should not be able to

petition for a claim.” 31 Fed. Cl. at 739. The Court further held that “[t]o rule that ‘return’

means simply to physically enter the United States is to invite absurd scenarios.” Id. (citing

Hellebrand v. Sec’y of Dep’t of Health & Human Servs., 999 F.2d 1565, 1570–71 (Fed. Cir.

1993)) (“[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.”). Ultimately, the Court held that “[a]s Congress meant that ‘return’ would mean a

permanent return, 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, in order to be able

to participate in the compensation program.” Id. at 740.

C. Analysis

The crux of the petitioners’ claim at this stage of the case centers on whether A.R. D-C

“returned” to the United States within six months of his receipt of the vaccine, pursuant to 42

U.S.C. § 300aa-11(c)(1)(B)(i)(III). 12 The petitioners argue that the Special Master

inappropriately interpreted the word “return” because “[t]he relevant language of the Vaccine

12

The petitioners also raise the argument that a child in utero is a “person” for the purposes of

the Vaccine Act. The Vaccine Act considers a child whose mother receives a vaccine while the

child is in utero to be a “person” for the purposes of the Vaccine Act. 42 U.S.C. § 300aa-

11(f)(1) (“[F]or the purposes of this subpart, both a woman who received a covered vaccine

while pregnant and any child who was in utero at the time such a woman received the vaccine

shall be considered persons to whom the covered vaccine was administered and persons who

received the covered vaccine.”). While the Court need not decide the question, it assumes, for

the purposes of its analysis, that A.R. D-C was a “person” under the relevant portions of the

Vaccine Act, with a prior presence in the United States. The sole issue requiring analysis to

resolve the case is whether A.R. D-C’s arrival in Miami for medical treatment constituted a

“return” to the United States within six months of his vaccination.

6

Act is not ambiguous,” and the Special Master’s interpretation of “return” does not comport with

the “ordinary meaning” of the word. In making that argument, the petitioners point to the

Oxford English Dictionary, which defines “return” as “to come or go back to a place or person.”

Id.; see also Return, OXFORD ENGLISH DICTIONARY (2d ed. 1989). The petitioners contend that

failing to apply the “ordinary meaning” of the word is “clearly inconsistent with the Supreme

Court’s unanimous holding in Sebelius v. Cloer.” See Sebelius v. Cloer, 569 U.S. 369, 376–77

(2013) (“As in any statutory construction case, this Court proceeds from the understanding that

‘[u]nless otherwise defined, statutory terms are generally interpreted in accordance with their

ordinary meaning.’”) (quoting BP America Production Co. v. Burton, 549 U.S. 84, 91 (2006)).

Therefore, the petitioners argue, under the plain meaning of the unambiguously used definition

of “return,” they should be allowed to maintain their claim.

The respondent rejects the petitioners’ interpretation of “return,” instead arguing that,

under the Vaccine Act, as construed in McGowan, 31 Fed. Cl. at 740, “return” does not mean a

temporary visit, but an arrival “with the intention to remain permanently from that point on.”

The respondent relies on the Court’s decision in McGowan in making that argument. 13 While

the respondent does not reject the petitioners’ understanding of the “plain meaning” of “return,”

the respondent argues that, to qualify for Vaccine Act compensation, a “return” necessarily

requires a sense of permanence. Because the word ‘return’ relies on its context in order to impart

a sense of permanence, the respondent argues, the plain meaning rule is not dispositive.

Thus, this case turns on whether A.R. D-C’s arrival for medical treatment constitutes

“return” for the purposes of the act’s exception to its requirement that claimants be vaccinated in

the United States.

As in any case involving statutory interpretation, the Court’s analysis must begin with the

words employed by the legislature. See, e.g., Lewis v. United States, 445 U.S. 55, 60 (1980)

(“[I]n any case concerning the interpretation of a statute the ‘starting point’ must be the language

of the statute itself.”); see also Reiter v. Sonotone Corp., 442 U.S. 330, 337 (1979) (“As is true in

every case involving the construction of a statute, our starting point must be the language

employed by Congress.”). Such an inquiry requires that the Court analyze the legislature’s

words in accordance with both their ordinary meaning and within the context of the statutory

scheme surrounding their implementation. No single word or phrase should be wrenched from

13

The respondent also argues that, because A.R. D-C was born in The Bahamas and never lived

in the United States after birth, he could not “return” to the United States. Thus, the respondent

posits that A.R. D-C’s first entry into the United States occurred on July 13, 2016, when he

arrived for medical treatment. The respondent similarly rejects the petitioners’ argument that

A.R. D-C’s mother’s occasional visits during her pregnancy were sufficient to establish that he

was “present” in the United States for the purpose of the Vaccine Act. While these arguments

were raised by the respondent, the Court does not believe it necessary to address whether A.R.

D-C’s in utero visits constituted presence in the United States, because such a determination

would, in and of itself, not be dispositive of the case. Instead, the Court’s decision turns on

whether A.R. D-C’s arrival in the country for medical treatment constituted a “return” sufficient

to satisfy the Vaccine Act, assume the in utero visits were A.R. D-C’s initial entries into the

country.

7

its context and interpreted in a vacuum. See Houlihan v. Sec’y of Health & Human Servs., 45

Fed. Cl. 201, 205 (1999) (“A statute is to be read as an undivided whole, not a collection of

disparate clauses.”). To do so would defeat the purpose of the judicial enterprise, which is to

interpret the law applicable to a particular case in accordance with what the legislature wrote as a

whole.

As to the ordinary meaning of “return,” this Court agrees with McGowan that dictionary

definitions of the word shed little light on what the word means in the Vaccine Act. See 31 Fed.

Cl. at 738. While this Court does not necessarily agree with McGowan that a “return” must be

permanent, id. at 740, this Court recognizes that applying the broadest meaning to the term as

argued by the petitioners invites absurd results inconsistent with the statute’s context. See id. at

739. For instance, if a French citizen, resident in France, vacationed in the United States, then

returned to France and received a vaccination there, the fact that one week later, the French

citizen stopped in New York to change planes on his way to Mexico would permit him to submit

a Vaccine Act claim under the petitioners’ broad reading of “return.” It is inconceivable that

Congress’s use of the term “return” in the Act was meant to extend the benefits of the Vaccine

Injury Compensation Program to this scenario. That application produces an absurd result even

if “return” might ordinarily be used this way in other contexts. See United States v. Kirby, 74

U.S. 482, 486-87 (1868) (“All laws should receive a sensible construction. General terms should

be so limited in their application as not to lead to injustice, oppression, or an absurd

consequence.”). What counts as a “return” for the Vaccine Act must have some limit, but the

term’s range of ordinary meanings requires the Court to look to context for further clues.

The context surrounding the term “return” suggests that “return” means something more

than a nonresident prior visitor’s temporary entry for medical treatment. The term is used in a

gatekeeping provision that waives the government’s sovereign immunity, and without any

explicit language calling for the Vaccine Act’s extraterritorial application.

First, the Federal Circuit has described the section containing the statutory provision at

issue, 42 U.S.C. § 300aa-11, as a “gate-keeping” provision, which a petitioner must satisfy to

maintain a Vaccine Act claim. Amendola v. Sec’y of Dep’t of Health & Human Servs., 989 F. 2d

1180, 1182 (Fed. Cir. 1993). Indeed, 42 U.S.C. § § 300aa-11(c)(l)(B)(i)(III), operates as a

limitation on coverage.

Second, the Vaccine Act operates as a limited waiver of sovereign immunity. Therefore,

its provisions must be given a “strict and narrow construction.” Houlihan, 45 Fed. Cl. at 207;

see also Grice v Sec’y of Health & Human Servs., 36 Fed. Cl. 114, 120 (1996) (“[T]he Vaccine

Act is a limited waiver of sovereign immunity.”). Moreover, when Congress waives sovereign

immunity, any ambiguities in the statute must be resolved in favor of the federal government as

the sovereign. Houlihan, 45 Fed. Cl. at 208. Thus, it would be inconsistent with the purpose of

42 U.S.C. § § 300aa-11(c)(l)(B)(i)(III) to accept the petitioners’ unlimited reading of “return,”

expanding the Vaccine Act’s waiver of sovereign immunity to claims from individuals with no

or few meaningful ties to the United States.

8

Third, there is no indication in the statute that Congress intended to apply the Vaccine

Act outside of the United States. 14 Unless Congress is explicit in seeking to extend the

extraterritorial effect of a legislative act, the presumption must be that a statute only has domestic

application. Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 115 (2013); Morrison v.

National Bank of Australia, Ltd., 561 U.S. 247, 255 (2010); Microsoft Corp. v. AT&T Corp., 580

U.S. 437, 454 (2007); E.E.O.C. v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991). 15 The Court

has canvassed the entire statutory text and legislative history of the Vaccine Act. There is not a

single hint that Congress was thinking about compensating individuals vaccinated outside of the

United States who lacked ties to the country.

Moreover, the Vaccine Injury Compensation Program’s funding structure, set out in the

Vaccine Act, also suggests that Congress did not explicitly seek for the Act to have

extraterritorial application. Congress funded the Vaccine Program through an excise tax of

seventy-five cents ($0.75) per sale of a taxable vaccine that is manufactured or produced in the

United States, or enters the United States “for consumption, use, or warehousing.” 26 U.S.C. §§

4132, 4131(a)(1). Vaccines sold or re-sold “for export . . . to a foreign country” are exempt from

the tax. See INTERNAL REVENUE SERV., Pub. 510: Excise Taxes (rev. Mar. 2018; last visited

Sept. 5, 2019) http://www.irs.gov/publications/p510. Thus, the Vaccine Injury Compensation

Program is funded by excise taxes on domestic manufacturers and producers, suggesting that

Congress intended to limit that Program to domestic claims, with limited exceptions. Here

again, an expansive definition of “return” could work against one of the key goals underlying the

Vaccine Act, ensuring the supply of vaccines, by expanding the potential class of beneficiaries

without adequate financial support for the program.

In sum, the term “return” must be limited by its context to avoid absurd results. The

Act’s waiver of sovereign immunity is strictly and narrowly construed—a principle with which

the Court must assume Congress was familiar when it enacted the Vaccine Act. Nothing in the

Act or its legislative history overcomes the presumption against extraterritoriality, and the

coverage-expanding results of the petitioners’ interpretation are inconsistent with the Act’s

funding and coverage-limiting provisions. The petitioners’ unlimited reading of the word

“return” must be rejected.

Because of the quality of medical care available in this country, foreign nationals from

countries with fewer medical resources often avail themselves of advanced or specialized

treatment in the United States. Congress would have been familiar with this phenomenon. 16

14

The Vaccine Act makes clear that it covers vaccines provided in the United States, and

vaccines administered abroad to United States citizens. 42 U.S.C. § 300aa-11(c)(1)(B)(i)(I), (II).

This context in which Congress actually restricted the remedies in the Vaccine Act to some

Americans receiving vaccines abroad supports the inference that Congress had in mind United

States persons as it thought about the potential beneficiaries of the Vaccine Act.

15

Kiobel, for example, applied the presumption against extraterritorial effect to a statute enacted

in 1789; a fortiori the presumption also applies to a statute enacted in 1986.

16

For example, several years before Congress considered the Vaccine Act, the former Shah of

Iran sought medical treatment in the United States, triggering strong reactions in Iran, including

the seizure of the U.S. Embassy and the taking of hostages.

9

In light of the silence in the legislative record and the presumptions attendant to the task

of statutory interpretation in this case, the Court finds nothing to suggest that Congress meant to

cover foreign nationals arriving in the United States for the purpose of seeking medical treatment

when it used the word “return” in the Vaccine Act.

This holding is narrower than the rule adopted in McGowan. The Court declines to adopt

the reading of the statute advanced by the respondent, in reliance on McGowan, that “return”

must include an intent to establish permanent residence in the United States because it is broader

than necessary to resolve this case.

V. Conclusion

Because A.R. D-C’s entry into the United States to receive medical treatment did not fall

within the more specific meaning of “return to the United States” that the Vaccine Act’s broader

context demands, he has therefore not satisfied the requirements under 42 U.S.C. § 300aa-

11(c)(l)(B)(i)(III). The Court has no choice but to deny the petitioners’ Motion for Review.

s/ Richard A. Hertling

Richard A. Hertling

Judge

10