Amicus Curiae Brief — Heather Rogero, et vir, Petitioners v. Alex M. Azar, II, Secretary of Health and Human Services

No. 19-5657

IN THE

Supreme Court of the United States

W. R. III, A MINOR, BY AND THROUGH HIS PARENTS

AND NEXT FRIENDS HEATHER D. ROGERO

AND WALTER A. ROGERO II,

Petitioner,

v.

ALEX AZAR II,

Secretary of Health and Human Services,

Respondent.

_________

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Federal Circuit

BRIEF OF NATIONAL AUTISM SOCIETY OF

PITTSBURGH, INC., AS AMICUS CURIAE IN

SUPPORT OF PETITIONERS

MARY S. HOLLAND, ESQ.

Counsel for Amicus Curiae

September 20, 2019

JESSE A. TORISKY, ESQ.

Autism Society of Pittsburg

11676 Perry Highway, Suite 11106

Wexford, PA 15090

info@autismsocietypgj.org

(412) 856-7223

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

INTERESTS OF AMICUS CURIAE .......................... 1

SUMMARY OF ARGUMENT..................................... 2

ARGUMENT .............................................................. 6

I.

Misreading the NCVIA Impedes Access

to Justice Contravening Congressional

Intent and Decades of Precedent to

Compensate Injured Children ..................... 7

II.

Preventing a Child with a Disability

from Accessing Justice Causes

Significant Harm, Contravening § 504

in VICP ...................................................... 13

III. The Federal Circuit’s Decision

Contravenes Congresses Intent ................ 22

CONCLUSION ......................................................... 22

APPENDIX ............................................................... 1a

ii

TABLE OF AUTHORITIES

CASES

Alexander v. Choate

No. 83-727 105 S. Ct. 712, 720 (1985) ... 14, 16, 19

Althen v. HHS

418 Fed. 3d 1274, 1280 (III)

(Fed. Cir. 2005) .................................... 511, 12, 13

Bruesewitz v. Wyeth, Inc.

No. 09–152 (S. Ct. 2011)............................. 8, 9, 10

Capizzano v. HHS

44p F. 3d 1317, 1326 (Fed. Cir. 2006)................ 12

Contreras v. HHS

2015-5097, (Fed. Cir. 2017) .................................. 5

Endrew F. v. Douglas County School Dist. RE-1

No. 15-827, 580 U.S.S.C. (2017),

(798 F. 3d 1329, (10th Cir. 2015) ........................ 18

Knudsen v. HHS

35 F.3d 543, 549 (Fed. Cir. 1994) ...................... 11

Paluck v. HHS

78 F.3d. 1373 (Fed. Cir. 2015) ............................. 5

Poling n v. HHS

No. 02-1466V, 2011 WL 678559, at *1

(Fed. Cl. Spec. Mstr. Jan. 28, 2011) ..................... 4

Rogero v. HHS, Rogero v. Azar

No. 11-770 V (Fed. Cir. 2017),

aff’d. No. 18-1694 (Fed. Cl. 2018),

No. 19-5657 (S. Ct. 2019) .......................... passim

iii

Shalala v. Whitecotton

514 U.S. 268 (S. Ct. 1995) .................. 9, 12, 17, 18

Southeastern Community College v. Davis

442 U.S. 397, 99 S. Ct. 2361,

60 L.Ed.2d 980 (1979) ..................... 16, 18, 19, 20

Tennessee v. Lane

541 U.S. 509 (S. Ct. 1978) .................................... 7

Wright v. HHS

No. 12-423 (Fed. Cl. Spec. Master. 2015) ........... 4

US CONSTITUTION

U.S. CONST. Preamble............................................... 6

U.S. CONST. Amendment XIV ................... 4, 5, 6, 13

STATUTES

Handicapped Children Act of 1986 (EHA)

20 U.S.C. § 1415(l) 17................................................ 14

Americans with Disabilities Act of 1990 (ADA)

42 U.S.C. §§ 12101, et seq. ....................................... 14

Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat.

241 (1964), 42 U.S. C. 2000d-1 ................................. 17

Individuals with Disabilities Education Act (IDEA),

20 U.S.C. §§ 1400, et seq. ......................................... 14

iv

National Childhood Vaccine Injury Act of 1986

(NCVIA), National Vaccine Injury Compensation

Program (VICP), Pub. L. No. 99-660, U.S.C.

§300aa-1 et seq................................................... passim

42 USC §300aa–11(a)(1) .......................................... 18

42 USC § 300aa–11(c)(1) ................................ 3, 10, 11

42 USC §300aa-11(c)(1)(C)(ii) .................................... 9

42 USC §300aa-11(c)(1)(C)(ii)(II) ......................... 2, 11

42 USC § 300aa-12(c)(1) ............................................. 9

42 USC § 300aa-12(d)(2)(A) ....................................... 9

42 USC §300aa–12(d)(3) ............................................ 8

42 USC §300aa–12(e), (g)............................................ 9

42 USC § 300aa–13(a)(1)....................................... 5, 11

42 USC § 300aa–13(a)(1)(A).............................. passim

42 USC § 300aa–13(a)(1)(B).............................. passim

42 USC § 300aa–14(a) .............................................. 10

42 USC §300aa–14(b)(3)(A) ........................................ 3

42 USC §300aa–15(a) ............................................... 10

42 USC § 300aa-15(a)(1)(A)(iii)(II) ............................ 8

42 USC § 300aa-15(a)(1)(B)(iii) .................................. 8

v

42 USC § 300aa-15(i)(2) .............................................. 9

42 USC § 300aa-22(b)(1) ............................................ 9

42 USC § 300aa–33(5) ........................................... 3, 10

Rehabilitation Act of 1973,

29 U.S.C. § 794, (“Section 504”) ........................ passim

REGULATIONS

45 CFR § 84.4 ........................................................... 19

45 CFR § 84.21(a) ..................................................... 21

45 C.F.R. 84 & 85 ........................................................ 4

45 CFR § 85.21 .......................................................... 19

45 CFR § 85.21(b)(1)(i) ............................................. 20

45 CFR § 85.21(b)(1)(ii) -(iv) ..................................... 20

45 CFR § 85.21(b)(1)(vi), and (3)(i) -(ii) ................... 21

45 CFR § 85.21(b)(3)(vi)(i) -(ii)) ............................... 21

45 CFR § 85.3 ................................................ 18, 19, 21

LEGISTLATIVE HISTORY

117 Cong.Rec. 45945 (1971) ..................................... 14

118 Cong.Rec. 30680 (1972) ..................................... 15

118 Cong.Rec. 32310 (1972) ..................................... 15

vi

118 Cong.Rec. 9712 (1972) ....................................... 14

118 Cong.Rec. 525-526 (1972) ............................ 14, 15

119 Cong. Rec. 5880, 5883 (1973) ............................ 15

119 Cong.Rec. 6145 (1973) ....................................... 15

119 Cong.Rec. 7114 (1973) ....................................... 15

H.R No. 92-14033 (1972) .......................................... 14

H.R No. 99-908 (1986) ................................................ 9

H.R No. 99-1780 (1986) ............................................... 8

H.R No. 99-4777 (1986) .............................................. 8

H.R No. 99-5184 (1986) .............................................. 8

S. Rep. No. 93-1297 (1974) ........................................ 17

USCCAN 6344, 6353-54 (1986) .................................. 9

RULES

Federal Rules of Evidence 103 ................................ 13

Federal Rules of Evidence 401 ........................... 17, 18

Federal Rules of Evidence 402 ................................. 18

Federal Rules of Evidence 403 .......................... 17, 18

S.C. Rule 37.6 .............................................................. 1

vii

OTHER AUTHORITIES

Accommodating the Handicapped: The

Meaning of Discrimination Under Section

504 of the Rehabilitation Act, 55 N.Y.U.L.

Rev. 881, 883 (1980) .......................................... 15

Autism-Society Legal Resources,

https://www.autism-society.org/living-withautism/legal-resources/ (last viewed

September 10, 2019) .......................................... 13

Cappelli, R., Federal Grants and Cooperative

Agencies § 20:03 (1982) ...................................... 15

Davenport, Katherine, Vaccines and the

National Vaccine Injury Compensation

Program (Apr. 10, 2000) (unpublished

third-year paper, Harvard Law School),

http://nrs.harvard.edu/urn3:HUL.InstRepos:9453695 (last viewed

September 17, 2019) ............................................ 9

King, Martin Luther, Jr., “Remaining Awake

Through a Great Revolution.” Speech given

at the National Cathedral, March 31, 1968.

https://www.si.edu/spotlight/mlk?page=4&if

rame=true (last viewed September 15,

2019) ..................................................................... 6

United States Commission on Civil Rights,

Accommodating the Spectrum of Individual

Abilities, Ch. 2, 17 (1983) ............................ 14, 15

viii

Wegner, The Antidiscrimination Model

Reconsidered: Ensuring Equal Opportunity

Without Respect to Handicap Under

Section 504 of the Rehabilitation Act of

1973, 69 Cornell L. Rev. 401, 403, n. 2

(1984) .................................................................. 14

1

INTERESTS OF AMICUS CURIAE

Amicus has strong interest in ensuring that the

protections of the Rehabilitation Act of 1973, Section

504, are applied as intended by Congress and as

previously interpreted by this Court. Section 504

protects Petitioner 1 and others with disabilities in

federal programs, who have been denied statutorily

guaranteed relief. This brief describes the intent of

Congress, the legislative history of two applicable

Congressional Acts, and the harm resulting to

Petitioner from a misreading of the statutory

provisions at issue, and why autism disability is

irrelevant and impermissible evidence.

The Federal Circuit’s decision in Rogero v. Azar

pertains to the scope of §504's protection of citizens

with autism disability in federal programs. This

Court’s decision whether to grant certiorari will

directly impact the federal courts’ application of §504

for 3.5 million U.S. citizens living with autism, a

significant national issue.

The lower courts acknowledged Petitioner’s

preponderant evidence of vaccine injury, as detailed

in the Petition, citing his medical records and expert

medical opinion, but nonetheless denied him

compensation. The preponderance standard evidence

determined him eligible for compensation for his

encephalopathy associated with the DTaP vaccine,

but the merits of his claim were unequally treated to

those of similarly situated children merely on the

1 Pursuant to Supreme Court Rule 37.6, amicus state that this

brief was authored by counsel, and no person or entity other

than the amicus or their counsel has made a monetary

contribution to the preparation or submission of the brief.

Respondent and Petitioner received a timely notice and have

granted consent.

2

basis that he also had a subsequent autism disability

that was not a claim. Since both the special master

and Federal Circuit recognized this evidence,

Petitioner should be awarded compensation for his

life care and rehabilitation as defined by 42 USC

§300aa–13(a)(1)(A).

Respectfully, the Federal Circuit’s decision on its

face constitutes a violation of §504’s prohibition

against discrimination, as interpreted by this Court.

This type of discrimination, “not of invidious animus,

but

rather

of

…benign

neglect”

requires

compensation. Thus the amicus urges that the

judgment below be reversed.

Under Rule 37, amicus is focused on the

legislative intent of Congress as interpreted by this

Court for both the National Childhood Vaccine

Injury Act and the Rehabilitation Act, highlighting

the applicable Federal Rules of Evidence. These are

“relevant matter[s] not already brought to the [the

Court’s] attention that may be of considerable help

to the Court” regarding Rogero v. Azar, 19-5657 (S.

Ct. 2019). Specifically, how 42 U.S.C. §300aa–

13(a)(1)(A) [preponderance that was found by the

courts determining compensation] for §300aa–

11(c)(1)(C)(ii)(II) [vaccine-related encephalopathy

injury associated with DTaP] is protected under

§504 because the decision basis was on his irrelevant

autism disability.

Description of Amicus is at Appendix 1a.

SUMMARY OF ARGUMENT

For over forty years, Congress has intentionally

safeguarded the rights of children with disabilities to

3

equal access, equal opportunity, and freedom from

discrimination in federal programs. Extending equal

rights to those with disabilities reflects our national

values. This case addresses the express intent of

Congress for §504, prohibiting discrimination on the

basis of disability in federal programs and protecting

children with acquired disabilities from unequal

treatment in our system of justice.

Petitioner W.R. III is now an 11-year-old,

permanently disabled child, who acquired that

disability after his May 2010 DTaP. He filed a

petition for compensation under the National

Childhood Vaccine Injury Act of 1986 (NCVIA) at 42

U.S.C. §§300aa-1 to -34. He suffered encephalopathy,

caused by diphtheria-tetanus-pertussis (DTaP)

vaccinations received on May 4, 2010, before his

second birthday. He continues to suffer from this

medical injury. (Pet. App. 2a, 3a, 5a, 9a), He also has

autism but did not claim this as an injury for

compensation.

As painstakingly laid out in the Petition, with

verifiable public findings under a preponderance

standard under §300aa–11(c)(1) from medical

records and medical testimony, Petitioner’s

encephalopathy is causally associated to his May

2010 DTaP vaccine as defined by 42 USC §300aa–

13(a)(1)(A)-(B). (See Petition at 11-14, 19-23, 34-37).

Petitioner met all evidentiary requirements for

compensation for vaccine-induced encephalopathy as

defined by 42 USC §300aa–11(c)(1), §300aa–33(5)2,

and §300aa–14(b)(3)A).3 Nonetheless, Petitioner was

“Vaccine-related injury or death” means an … injury…

associated with … vaccines in the Vaccine Injury Table…”

2

3 “Encephalopathy”

means any significant acquired … injury

to, … the brain… manifestations of encephalopathy are focal

4

denied due compensation. The Federal Circuit

denied compensation and dismissed his case merely

on the basis that he also had, subsequent to his

encephalopathy, a behavioral autism disability. HHS

experts ruled out autism as a cause of his

encephalopathy but were silent about DTaP vaccine

causation.

Genetic

causes

of

Petitioner’s

encephalopathy were ruled out in medical records, as

explained by medical experts, resulting in unfair

treatment and discrimination as defined by 45

C.F.R. 84 & 85, invoking the protections of the

Rehabilitation Act, §504 in a federal program, 29

U.S.C. 794(d).

Petitioner

timely

raised

discrimination

objections in the VICP, which are protected on

grounds under §504 and the 14th Amendment. In

the Federal Court of Claims, the special master,

contrary to law, elevated the burden of proof in such

a way as to preclude an entire class of petitioners

from claiming compensation, i.e. those who have

vaccine-induced encephalopathy and subsequent

autism. The special master and court must consider

all relevant medical evidence and should have

considered similar compensated cases of Poling v.

HHS, No. 02-1466V, (Fed. Cl. Spec. Mstr. Jan. 28,

2011) and Wright v. HHS, No. 12-423 (Fed. Cl. Spec.

Mstr. Sept. 21, 2015), which also featured

encephalopathies that became chronic and had

subsequent features of autism, like HRSA’s

statement and the government’s opinion of W.R. III

(See Petition at pp.16, 36).

In the Court of Appeals, Petitioner received

unequal treatment when the Court focused on

irrelevant autism, thus violating Vaccine Rules and

and diffuse neurologic signs …. The neurological signs … may

…result in various degrees of permanent impairment…”

5

the Federal Circuit’s precedents Althen, Contreras

and Paluck, which cases the Court remanded for

misconstruing and not using relevant evidence.

Petitioner’s case resulted in autism disability

discrimination, violating §504 and the 14th

Amendment’s protection.

The Federal Circuit’s decision flagrantly

misconstrued §300aa–13(a)(1) when sanctioning that

Petitioner’s evidence of his injury could be

arbitrarily rejected (Petition at 18) by the special

master. Then the Court capriciously denied the child

his fundamental right to impartial due process

regarding the causation factors, causing significant

harm to Petitioner and his family (Petition at 5-6).

After finding and rejecting medical encephalopathy

injury evidence, the Court never analyzed causation,

instead affirming a decision below on the basis of a

subsequent behavioral diagnosis of an autism

handicap.

The Federal Circuit panel sought to shore up its

conclusion based on autism by erroneously asserting

a legally unsupported and discriminatory reason

conflicting with this Court’s interpretation of

§300aa–13(a)(1)(B), as described in the Petition.

(Petition at 34-37).

Justice has been denied Petitioner for his

encephalopathy injury. His fundamental rights in a

federal program have been denied. This violates

Congress’ express intent, causing Petitioner to suffer

wrongful civil rights violations.

In 1973, because Congress found that persons

with disabilities had inadequate legal recourse to

redress discrimination in federal programs, it passed

§504 of the Rehabilitation Act. Congress expressly

6

sought to remedy discrimination against the

handicapped that existed most often not because of

animus, but because of thoughtlessness, indifference

and benign neglect.

ARGUMENT

Over our nearly 250-year history, we have

progressively endeavored to ensure that all citizens

secure liberty and equal access to justice 4 with

“Equal Justice Under Law” engraved upon the

entrance to this Court. This case is to safeguard

that federal laws to protect the fundamental rights

of Petitioner and 3.5 million other similarly situated

individuals are upheld. Our Constitution ensures all

citizens with disabilities the promise of equal justice

under law.

As Dr. Martin Luther King observed, “the arc of

the moral universe is long, but it bends toward

justice.” 5 The commitment to the rights of liberty,

justice, and equality are the foundation of our

judicial system to protect citizens against threats to

those rights and to remedy deprivation of them.

Over the past 45 years, Congress has established

that individuals with disabilities are prohibited from

being “excluded from the participation in, [or] denied

the benefits of, or be subjected to discrimination

under any program or activity receiving Federal

4U.S. CONST. Preamble (“We the People…in Order to form

a more perfect Union, establish Justice, … and secure the

Blessings of Liberty to ourselves and our Posterity”); id... XIV, §

1 (“… nor deny to any person … the equal protection of the

laws.”).

5 Martin Luther King, Jr., Speech given at the National

Cathedral, March 31, 1968. https://www.si.edu/spotlight/mlk?

page= 4&iframe=true (last viewed September 15, 2019).

7

financial assistance or under any program or activity

conducted by any Executive agency” and are entitled

to enforce equality of opportunity, full participation,

and benefits, and the same rights in society as

nondisabled individuals, §504, of The Rehabilitation

Act of 1973, 29 U.S.C. §794.

In short, Congress understood that including

individuals with disabilities among people who count

in composing “We the People” was essential. See

Tennessee v. Lane, 541 U.S. at 536. Many laws on

disability, like §504, now guarantee children like

Petitioner equal access, equal opportunity, and

freedom from discrimination on the basis of

disability.

I.

Misreading the NCVIA Impedes Access

to Justice, Contravening Congressional

Intent and Decades of Precedent to

Compensate Injured Children.

The Federal Circuit’s holding in Rogero

eviscerates the civil rights of children to be

compensated and to receive rehabilitative services

and life care from the excise tax on vaccines for

vaccine-related harms. If Petitioner is deprived of

compensation, the National Vaccine Injury

Compensation Program (VICP) will have been a

hollow formality. Petitioner’s medically proven

encephalopathy caused by his vaccines entitles him

to compensation. His behavioral diagnosis is

irrelevant and in any event, not inconsistent with

previously compensated cases.

The inequity inherent in the lower courts’

decisions is especially stark when considering

Congressman Henry Waxman’s statement when

8

introducing the National Childhood Vaccine Injury

Act in 1986 (NCVIA) bill:

… the bill I have introduced is probably

not the first choice of most parties …

Manufacturers would undoubtedly prefer

greater insulation from liability. Parents of

injured children would certainly prefer larger

compensation and fewer restrictions on court

activity…The administration would…prefer

legislation that spends no money.6

This Court considered the context, legislative

history, and intent of Congress for the NCVIA when

“creat[ing] a no-fault compensation program” in

Bruesewitz v. Wyeth, finding two purposes: “to

stabilize the vaccine market and facilitate

compensation”. “A person injured by a vaccine … may

file in the United States Court of Federal Claims,

naming the Secretary of Health and Human Services

as the respondent” 7 “A special master… makes an

informal adjudication … within … 240 days. 8 The

Court of Federal Claims must review objections to the

… decision and enter final judgment under a similarly

6 Vaccine Injury Compensation: Hearing on H.R. 1780, H.R.

4777, & H.R. 5184 Before the Subcommittee on Health and the

Env’t of the H. Comm. of Energy & Commerce, 99th Cong. 2

(1986) (statement of Rep. Henry A. Waxman, Chairman,

Subcommittee on Health & the Env’t of the H. Comm. of

Energy & Commerce) and 42 U.S.C. § 300aa-15(a)(1)(A)(iii)(II),

(a)(1)(B)(iii).

7 42 U. S. C. §300aa–11(a)(1).

8 §300aa–12(d)(3).

9

tight statutory deadline.”9 “[A]wards are paid out of

a fund created by an excise tax on each vaccine

dose 10 . As a quid pro quo, manufacturers enjoy

significant

tort-liability

protections.

Most

importantly, the Act eliminates manufacturer

liability for a vaccine’s unavoidable, adverse side

effects.”11

This Court found Congress’s intent in Shalala v.

Whitecotton, 514 U.S. 268, 270 (1995), that the VICP

was designed to divert civil lawsuits against vaccine

manufacturers into a less rigorous, less adversarial

arena than the existing federal and state tort

systems.12 “The stated purpose of the [Vaccine Act]

was to err on the side of compensating potential

vaccine victims in order to offer an effective

alternative to vaccine injury lawsuits.”13

This Court recognized Congress’s intent in

Bruesewitz v. Wyeth to “facilitate compensation” for

injuries “establish[ing] a prima facie entitlement to

compensation by introducing proof of actual

causation

§300aa-11(c)(1)(C)(ii)”.

(Shalala

v.

Whitecotton).

9 §300aa–12(e), (g).

10 Katherine Davenport, Vaccines and the National Vaccine

Injury Compensation Program (Apr. 10, 2000 Notes 211-212,

§300aa-15(i)(2), An “excise tax of 75 cents per dose is imposed

on each vaccine covered under the VICP.”

11 §300aa-22(b)(1). Encephalopathy is as adverse side effect of

DTaP.

12 42 U.S.C. §300aa-12(c)(1), §300aa-12(d)(2)(A).

13 Advisory Comm’n on Childhood Vaccines, Dep’t of Health &

Human Servs., see also H.R. REP. 99–908, at 12–13 (1986), as

reprinted in 1986 U.S.C.C.A.N. 6344, 6353–54.

10

Congressional Intent for

Compensation and Causation based on a

Preponderance of the Evidence

A.

Congress did not expend time and effort to create

a legislative scheme as a façade for unequal

treatment of the injured. Nor did it intend to create

an illusory eligibility framework as a hollow

formality.

This Court stated Congress’s clear purpose for

the preponderance of evidence standard to ensure

that children receive “compensation for medical,

rehabilitation, counseling, special education, and

vocational training expenses; diminished earning

capacity; pain and suffering” as found by this Court

under §300aa–15(a) in Bruesewitz v. Wyeth. This

Court also acknowledged the intent of Congress to

compensate encephalopathy by defining the injury as

“significant acquired … injury to … the brain with

permanent focal neurological signs”, as vaccinerelated, §300aa–33(5) and in association with the

DTaP (Diphtheria-Tetanus-Pertussis vaccines) as

“resulting from the administration of the vaccine”

§300aa–14(a).

Congress’s “causation” requirements then must

be viewed through the lens of compensating the

vaccine-injured to further specific statutory goals. As

enacted in §11 (c)(1)(C)(ii)(II), §13 (a)(1)(A) and §13

(a)(1)(B), the NCVIA envisions a legal cause of

injury, not “scientific proof”. On the basis of the

preponderance standard, the VICP must find every

factor

under

Section

§300aa-11(c)(1)

for

encephalopathy. In Rogero, the VICP found those

facts. (Petition pp. 34-38). In short, the special

master

found

and

published

Petitioner’s

11

requirements for awarding compensation but

discriminatorily denied participation, violating §504.

§300aa–13(a)(1)(A)14. Provides no authority for

a special master to reject preponderant evidence.

Althen v. HHS, 418 Fed. 3d 1274 (USCAFC 2005),

Knudsen, 35 F.3d 543, 549 (Fed. Cir. 1994). The

“statute’s language is clear; §300aa-13(a)(1) instructs

that a petitioner must prove causation in fact by a

‘preponderance of the evidence,’ substantiated by

medical records or medical opinion, as to each factor

contained in section §300aa-11(c)(1).” Id. at 1279.

Moreover,

while

42

USC

§300aa–

11(c)(1)(C)(ii)(II) requires a petitioner to demonstrate

the injury “was caused by a vaccine”, the standard is

“proof by a simple preponderance, of ‘more probable

than not’ causation,” “explaining that ‘to require

identification and proof of specific biological

mechanisms would be inconsistent with the purpose

and nature of the vaccine compensation program’….

the purpose of the Vaccine Act’s preponderance

standard is to allow the finding of causation in a

field bereft of complete and direct proof of how

vaccines affect the human body.” Althen, at 1280.

Althen observed that Congress “envisioned” that

petitioners could freely use “circumstantial evidence”

for the “preponderance standard”; that medical

literature is not required, Id. at 1281, and that “close

calls regarding causation are resolved in favor of

14 “Compensation shall be awarded under the Program to a

petitioner if the special master or court finds on the record as a

whole- that the petitioner has demonstrated by a

preponderance (medical records or testimony) of the evidence

the matters required 42U.S.C. §300aa-11(c)(1)”.

12

injured claimants.” Id. at 1280. A “medical theory

causally connecting the vaccination and the injury”

is also meets the preponderance standard.

The Federal Circuit failed to follow precedent in

Capizzano v. HHS, 440 F. 3d 1317 (2006), because it

sanctioned a special master to overlook the value of

the unsworn, recorded statements of treating

physicians contained in Petitioner’s medical records,

where the court stated, such opinions are “quite

probative.” Capizzano, at 1326. In fact, the court

held, citing Althen, “medical records and medical

opinion testimony are favored in vaccine cases.

Althen, 418 F.3d at 1280.” Capizzano, at 1326.

The Petition painstakingly cites Congress’s

causation standard as upheld by the Federal Court

of Claims and Federal Circuit’s precedents.

In short, Petitioner was not compensated, yet the

VICP gave no statutory provision as to why it

rejected preponderant evidence from medical records

and experts.15 The Federal Circuit denied petitioner

equal access to the VICP’s preponderant evidence

standard on the stated basis of a behavioral

handicap. (See Petition pp. 29-31, App. 13a), This is

grounds for reversal because §300aa–13(a)(1)(A) was

incorrectly applied. This conflicts with this Court’s

precedent in Shalala v. Whitecotton, where it

interpreted §300aa–13(a)(1)(B).

15 Encephalopathy was the only vaccine-related injury claimed.

The special master found autism was not a claim and cited no

evidence for a claim.

13

B.

Federal Rules of Evidence

Determine Errors Affect Substantial

Rights

Under Rule 103, errors may “affect a substantial

right of the party”, denying procedural due process

and equal access to rights under §300aa–13(a)(1)(A)(B).

Petitioner timely objected and stated the

grounds to both lower courts regarding the special

master’s error under Althen that precluded

Petitioner from receiving due compensation. These

lower courts discriminated against Petitioner on the

basis of autism. Petitioner is protected against such

discrimination by §504 of the Rehabilitation Act and

the 14th Amendment.

The Federal Circuit

overlooked these errors affecting Petitioner’s

substantial rights.

II. Preventing a Child with a Disability

from Accessing Justice Causes

Significant Harm, Contravening

§504 of the Rehabilitation Act.

A. Congressional Intent and Legislative

History of §504 as Determined by This

Court

“The Rehabilitation Act of 1973 is a civil liberties

law that forbids discrimination on the basis of

disability by federally funded programs,” 16 thus

protecting disabled children from unfair treatment.

Even after 1973, Congress’s goals focused on

16 Autism-Society

Legal Resources:

https://www.autismsociety.org/living-with-autism/legal-resources/ (last viewed

September 10, 2019).

14

improving the quality of life and outcomes for

individuals with disabilities. In 1990, Congress

passed the Americans with Disabilities Act (ADA)

and reauthorized the All Handicapped Children Act

(EHA) and the Individuals with Disabilities in

Education Act (IDEA). Congress enacted the NCVIA

in 1986 against this backdrop, to compensation

infants and children in the rare instances when

some would become disabled after receiving

vaccinations. §300aa–13(a)(1)(A).

In Alexander v. Choate, this Court found that

“much of the conduct that Congress sought to alter

in

passing

the

Rehabilitation

Act”

was

“[d]iscrimination

against

the

handicapped…perceived by Congress to be most often

the product, not of invidious animus, but rather of

thoughtlessness

and

indifference—of

benign

17

neglect.” Thus, Representative Vanik, introducing

the predecessor to §504 in the House,18 described the

17 See

Alexander, Well-cataloged instances of invidious

discrimination against the handicapped exist, e.g., United

States Commission on Civil Rights, Accommodating the

Spectrum of Individual Abilities, Ch. 2 (1983); Wegner, The

Antidiscrimination Model Reconsidered: Ensuring Equal

Opportunity Without Respect to Handicap Under §504 of the

Rehabilitation Act of 1973, 69 Cornell L.Rev. 401, 403, n. 2

(1984).

18 Ibid.,

§504 ultimately passed as part of the Rehabilitation

Act of 1973, the nondiscrimination principle codified in §504,

was initially proposed as an amendment to Title VI. This

proposal was first introduced by Representative Vanik in the

House. See H.R. 14033, 92d Cong., 2d Sess., 118 Cong.Rec.

9712 (1972); H.R. 12154, 92d Cong., 1st Sess., 117 Cong.Rec.

45945 (1971). A companion measure was introduced in the

Senate by Senators Humphrey and Percy, S. 3044, 92d Cong.,

2d Sess., 118 Cong.Rec. 525-526 (1972). The principle

underlying these bills was reshaped in the next Congress and

inserted as §504. Senator Humphrey and Representative

Vanik indicated that the intent of the original bill had been

15

treatment of the handicapped as one of the country's

"shameful oversights." 117 Cong. Rec. 45974 (1971).

Similarly, Senator Humphrey, who introduced a

companion measure in the Senate, asserted "we can

no longer tolerate the invisibility of the handicapped

in America . . .." 118 Cong. Rec. 525-526 (1972).

Senator Cranston, the Acting Chairman of the

Subcommittee that drafted §504,19 described the Act

as a response to "previous societal neglect." 119 Cong.

Rec. 5880, 5883 (1973). Senator. Percy, cosponsor, in

describing the legislation leading to the 1973 Act

stated that it was a national commitment to eliminate

the "glaring neglect" of the handicapped. 118 Cong.

Rec. 526 (1972).20 Federal agencies have found that

discrimination against the handicapped is primarily

the result of apathetic attitudes rather than

affirmative animus21 and that “much of the conduct

that Congress sought to alter in passing the

carried forward into §504. See 119 Cong.Rec. 6145 (1973)

(statement of Sen. Humphrey); 118 Cong.Rec. 32310 (1972);

119 Cong.Rec. 7114 (1973) (statement of Rep. Vanik). Given the

lack of debate devoted to §504 in either the House or Senate

when the Rehabilitation Act was passed in 1973, see R.

Cappalli, Federal Grants and Cooperative Agencies § 20:03

(1982), the intent with which Congressman Vanik and Senator

Humphrey crafted the predecessor to §504 is a primary

signpost on the road toward interpreting the legislative history

of §504.

118 Cong.Rec. 30680 (1972) (Sen. Randolph describing

origins of §504).

19

20 Senator

Percy was both a cosponsor of the predecessor to

§504 and Senate version of the Rehabilitation Act of 1973.

21 United States Commission on Civil Rights, Accommodating

the Spectrum of Individual Abilities 17 (1983); Accommodating

the Handicapped: The Meaning of Discrimination Under §504

of the Rehabilitation Act, 55 N.Y.U.L.Rev. 881, 883 (1980).

16

Rehabilitation Act would be difficult if not

impossible to reach were the Act construed to

proscribe only conduct fueled by a discriminatory

intent.” There, this court found that “Section 504

seeks to assure evenhanded treatment and the

opportunity for handicapped individuals to

participate in and benefit from programs receiving

federal assistance. Southeastern Community College

v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980

(1979).”

Now, because of §504, handicapped persons with

autism are guaranteed an equal opportunity to

participate in federal programs 22 , ensured the

opportunity for the merits of their claims to be

impartially adjudicated, and to receive the same

benefits as every citizen. Thus, irrelevant

consideration of an autism handicap in the VICP is

unlawful and discriminates against Petitioner,

whose evidence of vaccine-induced encephalopathy

was acknowledged, but who received unequal

treatment

compared

to

similarly

situated

individuals.

B. Through §504, Congress has clearly

protected Petitioner from unfair

22 See id. §§ 701, 794. Equal opportunity can be analyzed under

(1) equal treatment - requires evaluation by objective rules and

neutral standards, or (2) equal impact, which treats as

presumptively discriminatory behavior or policy that has an

adverse impact on the protected group. This Court has

described §504 as mandating "evenhanded treatment,"

Southeastern Community College v. Davis, Supra, but also

indicated a willingness to entertain claims arising under the

section when an agency’s or program’s behavior has disparate

effects on handicapped persons, see Alexander v. Choate,

Supra.

17

treatment and discrimination on the

basis of his autism in federal programs

The Federal Circuit’s decision based on a

handicap rather than injury invokes protection that

provides benefits of compensation under §504., See,

S.Rep. No. 93-1297, pp. 40-41, 56 (1974)23.

The

Health

Resources

and

Services

Administration (HRSA) [within Health and Human

Services (HHS)], the Healthcare Systems Bureau,

Division of Injury Compensation Programs in

conjunction with the federal courts and DOJ

administer the VICP with specific regulations

prohibiting discrimination and enforcing §504.

In reaching its erroneous decision in Rogero, the

Federal Circuit relied not upon §300aa–13(a)(1)(B), as

interpreted by this court in Shalala v. Whitecotton,

but arbitrarily on an irrelevant handicap. This basis

contravenes §504 and the Federal Rules of Evidence.

C. The Federal Rules of Evidence

Determine that Autism is Irrelevant

in Rogero

Federal Rules of Evidence 401-403 indicate that

Petitioner’s autism disability that he sustained after

his vaccine-induced injury is irrelevant evidence

because autism has no “consequence in determining

the action” of the claim of encephalopathy from

DTaP for causation analysis under § 300aa–

13(a)(1)(A)-(B), nor does it make the fact of his

diagnosed encephalopathy “less probable.” HHS even

conceded that Petitioner’s autism was later and

23 §504 is similar to the antidiscrimination language of the Civil

Rights Act of 1964, §601

18

subsequent to his encephalopathy and affirmed that

autism was a sequela of encephalopathy, meaning it

was not the injury in Rogero nor the cause of his

encephalopathy. See Petition p. 36 at (2).

Therefore, Petitioner’s autism is “irrelevant

evidence [and] is not admissible” under Rule 402.

For the sake of argument, if it were relevant, under

Rule 403, an autism disability may be excluded for

“unfair prejudice, confusing the issues” because the

Federal Court of Claims found that there was no

claim of autism (Petition p. 36 at (1)).

In short, the Federal Circuit’s “basis” to affirm

the decision below was because Petitioner was

“definitely diagnosed with autism.” App. 12a. This

was a legally unsupported decision based on

irrelevant evidence under Rule 401 and at odds with

this Court’s interpretation of §300aa–13(a)(1)(B) in

Shalala. Thus the Federal Circuit’s decision on its

face violates §504 of the Rehabilitation Act

prohibiting discrimination and should be reversed.

SEC. 504 “No otherwise qualified

handicapped individual [i.e. with irrelevant

behavioral autism] in the United States, as

defined in §7(20)24, of this title, shall, solely by

reason of his handicap,25 be excluded from the

‘‘[I]ndividual with a disability’’ means any individual who—

(i)has a physical or mental impairment”. 45 C.F.R. §§ 84.3,

85.3, Individual with Handicaps This Court stated autism is a

disability by statute in Endrew F. v. Douglas County School

Dist. RE- 1, No. 15-827, 580 U.S.S.C. (2017).

24

25 29 U.S.C. §794 (1982). This Court interpreted this as "mere

possession of a handicap". Southeastern Community College v.

Davis, Supra.

19

participation in, be denied the benefits of [i.e.

compensation for medical encephalopathy], or

be subjected to discrimination under any

program or activity receiving Federal financial

assistance or under any program [VICP] or

activity conducted by any Executive agency26

…”. 29 U.S.C. §794 (1982). & 45 CFR §85.2127

This Court interpreted "otherwise qualified

[handicapped] person" as "one who is able to meet all

of a program's requirements in spite of his

handicap," Southeastern Community College v.

Davis, supra, coupled with implicit "evenhanded

treatment," see id. at 410-12. The decision below

demonstrates

that

Petitioner

proved

the

“requirements in spite of his handicap.” (Petition pp.

19-23, 34-37).

D. The Decisions Below Constitute

Discrimination Under §504

This Court, in Alexander v. Choate, supra.

stated that a §504 violation “reaches at least some

conduct that has an unjustifiable disparate impact

upon the handicapped”, and “[o]n that assumption,

we must then determine whether the disparate

effect” of the Petition “is the sort of disparate impact

that federal law might recognize” and “to determine

which disparate impacts §504 might make

actionable, the proper starting point is Southeastern

Agency means the Department of Health and Human

Services or any component part that conducts a program, 45

CFR §85.3, i.e. HRSA conducting VICP.

26

27 Or agency receives federal assistance, under 45 CFR §84.4

20

Community College v. Davis, 442 U.S. 397, 99 S.Ct.

2361, 60 L.Ed.2d 980 (1979)” [in defining the scope of

§504 in altering a program]. We point out in Rogero,

unlike Davis, alteration is unnecessary. Petitioner

seeks only the even-handed application of the

preponderant evidence standard.

45 CFR §85.21(b)(1)(i) was violated. This

regulation means that a federal program may

not deny a qualified individual with handicaps

the opportunity to participate in or benefit from

the aid, benefit, or service available to others.

Also CFR §85.21(b)(1)(ii),(iii),(iv) indicates

that a federal program may not “afford a

qualified individual with handicaps an

opportunity to participate in or benefit from the

aid, benefit, … that is not equal to that afforded

others” nor “Provide … benefit, or service that

is not as effective in affording equal

opportunity to obtain the same result, to gain

the same benefit, or to reach the same level of

achievement as that provided to others” or “(iv)

Provide different … benefits, … to individuals

with handicaps or to any class or individuals

with handicaps than is provided to others …”

Petitioner has shown 94 other similarly situated

cases of compensated brain injury where the

petitioner also had autism or autism symptoms.

Petition at pp. 15-16.

The Federal Circuit’s

affirmance, contrary to law, may elevate the burden

of proof to future Petitioners in such a way as to

deny legal compensation to many deserving children.

Petition at 29-34.

21

CFR Ҥ85.21(b)(1)(vi) This regulation means

that a federal program may not “Otherwise

limit a qualified individual with handicaps in

the enjoyment of any right, privilege …

opportunity enjoyed by others receiving the …

benefit, or service” and that “(3) The agency

may not, directly or through … other

arrangements, utilize criteria or methods of

administration the purpose or effect of which

would …§85.21(b)(3)(vi)] (i)Subject qualified

individuals with handicaps to discrimination

on the basis of handicap; or (ii) Defeat or

substantially impair accomplishment of the

objectives of a program.”

In conclusion, Congress’s intent in §504 of the

Rehabilitation Act means that Petitioner is a

qualified individual with handicaps as defined by

CFR §§85.3, 84.21(a). 28 The Federal Circuit’s

decision disparately affects him based on his

handicap, costing him his rehabilitation and care for

vaccine-induced encephalopathy, merely because he

also has autism. Animus is not required to establish

a violation of §504 and its implementing regulations.

Petitioner, a handicapped individual, has been

discriminated against in the federal VICP on basis of

an irrelevant, behavior handicap. Thus, the Federal

Circuit’s denial of compensation is erroneous and

unlawful under §504, constituting a prima facie case

of disability discrimination.

28 Having a “physical or mental impairment that substantially

limits one or more major life activities” qualifies one protection

against “prohibition against discrimination” on the basis of

handicap in VICP.

22

III.

The Federal Circuit’s Decision

Contravenes Congress’s Intent

In Rogero v. Azar, we respectfully request that

the Court grant review under the plain language of

§504 of the Rehabilitation Act and the Court’s

precedents.

The Federal Circuit’s unconstitutional decision

on the basis of disability discrimination, even if “not

of invidious animus, but rather of …benign neglect”,

will continue to affect children and adults with

autism in all federal programs if Rogero is not

reversed. This Court has the opportunity to

safeguard the constitutional rights of millions of

individuals with autism to equal access in federal

programs consistent with Section 504 of the

Rehabilitation Act.

CONCLUSION

For the foregoing reasons and those stated in

Petitioner’s brief, the judgment below should be

reversed.

Respectfully submitted,

MARY S. HOLLAND, ESQ.

Counsel for Amicus Curiae

JESSE A. TORISKY, ESQ.

Autism Society of Pittsburg

11676 Perry Highway, Suite 11106

Wexford, PA 15090

info@autismsocietypgh.org

(412) 856-7223

September 20, 2019

1a

APPENDIX

Autism Society of Pittsburg, Since its

founding in 1966, this Society has made a difference

in the lives of families with autism. Many of the

programs and initiatives started in Pittsburgh have

inspired the establishment of similar endeavors.

Autism Society prepares and delivers testimony on

all autism-related topics, including issues that are

being litigated or considered for legislative action.

We advocate for the rights of those with autism and

the rights of parents and families to obtain

appropriate services for their family member with

autism.