 In the United States Court of Federal Claims
                                         No. 03-0632V
                                   Filed: February 29, 20161

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                                          *
                                                        Records kept by the Clerk,
R.K., on behalf of A.K., a minor,         *
                                                           Rule 79(a)(2) of the Rules of the United
                                          *
                                                           States Court of Federal Claims
       Petitioners,                       *
                                                           (“RCFC”);
                                          *
                                                        Redaction of Decisions by Special Masters,
v.                                        *
                                                           42 U.S.C. § 300aa-12(d)(4);
                                          *
                                                        Review of Decisions by Special Masters, 42
Secretary of the Department of Health and *
                                                           U.S.C. § 300aa-12(e).
Human Services,                           *
                                          *
                                          *
       Defendant.                         *
                                          *
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John F. McHugh, New York, New York, Counsel for Petitioners.
Heather L. Pearlman, United States Department of Justice, Washington, D.C., Counsel for
Respondent.

  MEMORANDUM OPINION AND FINAL ORDER CONCERNING PETITIONERS’
                     MOTION FOR REVIEW

BRADEN, Judge.

   I.       RELEVANT FACTUAL BACKGROUND.
       On December 18, 2015, the court issued a Memorandum Opinion And Final Order,2
denying Petitioners’ October 28, 2015 Motion For Review Of The Special Master’s September 28,


        1
         This Memorandum Opinion And Final Order was issued on February 12, 2016. The
parties were required to submit proposed redactions on February 26, 2016.
        2
          The parties were required to submit proposed redactions on January 4, 2016. On
December 31, 2015, Petitioners filed a: Motion To Stay Publication Of Decision; Notice Of Filing
Redactions; and Motion For Review Of The Special Master’s December 1, 2015 Ruling On
Redaction Request And Change Of Case Caption. On January 19, 2016, the court granted
Petitioners’ Motion To Stay Publication, pending the resolution of Petitioners’ December 31, 2015
Motion For Review. The court issued the redacted version of the December 18, 2015
Memorandum Opinion together with this Memorandum Opinion on this date.
2015 Decision. The December 18, 2015 Memorandum Opinion And Final Order provides the
relevant factual background of this case. As such, the court incorporates those facts herein.

   II.        PROCEDURAL HISTORY.3
      On September 28, 2015, the Special Master issued a Decision and a Ruling On Motions.
On September 29, 2015, the case was reassigned to another Special Master.
      On October 13, 2015, Petitioners filed a Motion To Redact The Special Master’s
September 28, 2015 Decision And Ruling On Motions.
       On October 28, 2015, Petitioners filed a Motion For Review Of The Special Master’s
September 28, 2015 Decision And Ruling On Motions. That Motion was assigned to the
undersigned judge.
       On October 30, 2015, the Government filed a Response To Petitioner’s Motion To Redact
in the Office of the Special Masters. On November 6, 2015, Petitioners filed a Reply. On
November 9, 2015, the Special Master issued an Order, staying posting of the September 28, 2015
Decision and Ruling On Motions.
       On December 1, 2015, the Special Master issued an Order On Motion To Redact Decision
(“Order”). On December 31, 2015, Petitioners filed a Motion For Review Of The Order On
Motion To Redact Decision (“Pet. Mot.”). On January 28, 2016, the Government filed a Response
(“Gov’t Resp.”).
   III.       DISCUSSION.

              A. Jurisdiction.

       The United States Court of Federal Claims has jurisdiction to review the decision of a
Special Master in a vaccine-related injury case, pursuant to 42 U.S.C. § 300aa-12(e)(2)4 and
Vaccine Rule 23(a).5 After reviewing the Special Master’s decision, the court may:




        The court’s December 18, 2015 Memorandum Opinion And Final Order provides the
          3

procedural history of this case. As such, that procedural history is incorporated herein.

          Section 300aa-12(e)(2) of the Vaccine Act provides: “[W]ith respect to a petition, the
          4

United States Court of Federal Claims shall have jurisdiction to undertake a review of the record
of the proceedings[.]” 42 U.S.C. § 300aa-12(e)(2).

         Vaccine Rule 23(a) provides: “To obtain review of the [S]pecial [M]aster’s decision, a
          5

party must file a motion for review with the clerk within 30 days after the date the decision is
filed.” Vaccine Rule 23(a).

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           (A) uphold the findings of fact and conclusions of law of the [S]pecial [M]aster
           and sustain the [S]pecial [M]aster’s decision,
           (B) set aside any findings of fact or conclusion of law of the [S]pecial [M]aster
           found to be arbitrary, capricious, an abuse of discretion, or otherwise not in
           accordance with law and issue its own findings of fact and conclusions of law,
           or
           (C) remand the petition to the [S]pecial [M]aster for further action in
           accordance with the court’s direction.

42 U.S.C. § 300aa-12(e)(2); see also Vaccine Rule 27 (same).

           B. Standard Of Review.

        The United States Court of Federal Claims may set aside the decision of a Special Master
if findings of fact or conclusions of law are found to be “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” 42 U.S.C. § 300aa-12(e)(2)(B). “Fact
findings are reviewed . . . under the arbitrary and capricious standard; legal questions under the
‘not in accordance with law’ standard; and discretionary rulings under the abuse of discretion
standard. The latter will rarely come into play except where the special master excludes evidence.”
Munn v. Sec’y of Dep’t. of Health & Human Servs., 970 F.2d 863, 870 n.10 (Fed. Cir. 1992).

           C. The Special Master’s December 1, 2015 Order On Motion To Redact Decision.

         The Special Master discussed two approaches to redaction that have been discussed in
recent cases. Order at 1. Under the first approach, “[S]pecial [M]asters have decline[d] to redact
information, other than changing the name of a minor child to initials.” Order at 2 (citing
Langland v. Sec’y of Health & Human Servs., No. 07-36V, 2011 WL 802695 (Fed. Cl. Spec. Mstr.
Feb. 3, 2011), mot. for rev. denied on non-relevant grounds, 109 Fed. Cl. 421 (2013); Castagna v.
Sec’y of Health & Human Servs., No. 99-411V, 2011 WL 4348135 (Fed. Cl. Spec. Mstr. Aug. 25,
2011); House v. Sec’y of Health & Human Servs., No. 99-406V, 2012 WL 402040 (Fed. Cl. Spec.
Mstr. Jan. 11, 2012); Anderson v. Sec’y of Health & Human Servs., No. 08-396V, 2014 WL
3294656 (Fed. Cl. Spec. Mstr. June 4, 2014)). The Special Master determined that this approach
is reasonable, because “while all filings of the parties and procedural orders of the [S]pecial
[M]aster are shielded from public view, the Vaccine Act also specifically provides that when a
[S]pecial [M]aster files a ‘decision’ in the case, such decision ‘shall be disclosed’ to the public[.]”
Dec. at 2 (citing 42 U.S.C. § 12(d)(4)(B) (emphasis added)). Moreover, disclosure of the health
and medical records is not an invasion of privacy, because petitioners “directly put the vaccinee’s
health and medical status into contention by filing the case and prosecuting the case to a decision
in a public court[.]” Dec. at 2. Therefore, redacting and replacing actual names of minors with
initials is reasonable, because it balances privacy, as well as “the obvious purpose of the statutory
requirement . . . that rulings on medical causation issues be publicly available to potential Vaccine
Act litigants[.]” Dec. at 2.

       The second approach redacts the name of the petitioner, even though the petitioner is not a
minor. Dec. at 2–3 (citing W.C. v. Sec’y of Health & Human Servs., 100 Fed. Cl. 440 (2011), aff’d
on non-relevant grounds, 704 F.3d 1352 (Fed. Cir. 2013)). This approach also is reasonable,

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because “while it [is] . . . necessary, for the development of the Vaccine Act law, for a [S]pecial
[M]aster’s decision to contain information about the vaccines involved and subsequent . . . injuries
of the vaccinee, there is no need, under the Congressional policy of disclosure, that the name of
the vaccinee be available to the public.” Dec. at 2–3 (citing W.C., 100 Fed. Cl. at 457).

         Given the “exceptionally detailed and unusual discussion of the injured minor vaccinee’s
medical history,” the Special Master determined that the second approach was more appropriate
in this case and ordered that the initials of the vaccinee and the vaccinee’s family replace their
actual names. Dec. at 3. The Special Master also instructed the Clerk of the Court to change the
caption of the case, so that Petitioners’ initials would appear. Dec. at 3. The Special Master,
however, denied Petitioners’ request for redaction of the case number. Dec. at 3. “[P]ursuant to
. . . Rule 79(a)(2) [of the Rules of the United States Court of Federal Claims (“RCFC”),] all papers
filed with the clerk must be marked with the file (case) number and entered on the docket, and
since public decisions are official records[,] . . . it is not possible to file documents . . . without the
case number.” Dec. at 3. The Special Master also denied Petitioners’ request to redact the names
of medical practitioners, because they “have not explained why the publication of the names of
medical doctors, who were just doing their jobs, would do any damage to relationships between
patient and doctor.” Dec. at 4.

            D. Petitioners’ December 31, 2015 Motion For Review.

                    a. Petitioners’ Argument.

        Petitioners argue that the Special Master’s Order affords “little or no privacy protection,”
because Petitioners’ names should have been redacted and replaced with “John Doe” or the like.
Pet. Mot. at 4–5. The case number also should have been redacted. Pet. Mot. at 6.
This approach would be appropriate, because a “simple Google type search reveals that
information taken from the [PACER] docket report containing Petitioners’ names, the case number
of the case, and the [PACER] filing history is published on the Internet.” Pet. Mot. at 4 n.3.
“Because of the super-availability of information on the [I]nternet, . . . the privacy provision of the
Vaccine Act is, effectively, being frustrated[.]” Pet. Mot. at 7. As such, redacting both the
Petitioners’ actual names and case numbers, as well as substituting Petitioners’ actual names with
“John Doe” or “Jane Doe,” affords Petitioners better privacy protection. Pet. Mot. at 6. Petitioners
cite ten cases where both the names and case numbers were redacted:

    1. DONNA {redacted} v. Secretary of Health and Human Services, No. 02-
       {redacted}V, Filed: {redacted}, 2006.
    2. JANE DOE/15 v. Secretary of Health and Human Services, No. 02- {redacted}V,
       Filed: {redacted}, 2008.
    3. JANE DOE/34 v. Secretary of Health and Human Services, No. {redacted}V,
       Filed: January 30, 2009; Reissued for Publication: February 2, 2009; Reissued
       Redacted: March 4, 2009.
    4. JOHN DOE/49 v. Secretary of Health and Human Services, No. {redacted}V,
       Originally Filed: October 2, 2009; Issued Redacted: October 20, 2009.
    5. JANE DOE/52 v. Secretary of Health and Human Services, No. {redacted}V,
       Originally issued: December 15, 2009; Reissued Redacted: January 4, 2010.

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   6. JOHN DOE/64 v. Secretary of Health and Human Services, No. {redacted}V,
       Originally Filed: April 13, 2010; Issued Redacted: April 28, 2010.
   7. JANE DOE/60 v. Secretary of Health and Human Services, No. XX-XXXXV,
       Filed: January 29, 2010; Reissued: March 26, 2010.
   8. JOHN DOE/67 and JANE SMITH, parents of CHILD, a minor v. Secretary of
       Health and Human Services, No. {redacted}V, Filed: May 3, 2010; Reissued: May
       21, 2010.
   9. JOHN DOE/83, and JANE DOE/83, as parents and natural guardians of CHILD
       DOE/83 v. Secretary of the Department of Health and Human Services, No.
       {redacted}V, Originally filed: December 17, 2010; Filed Redacted: January 12,
       2011.
   10. DOE/93 v. Secretary of Health and Human Services, No. {redacted}V, Filed
       November 16, 2011.

Pet. Mot. at 6–7.

        In sum, the Special Master’s approach of redacting Petitioners’ names and replacing them
with initials is insufficient and “arbitrary, capricious, an abuse of discretion and contrary to law[.]”
Pet. Mot. at 2. Petitioners “respectfully request remand with a direction requiring the [c]ourt to
fashion a remedy, including redaction of the case number, that provide[s] effective privacy
protection and that is compliant with the Vaccine Act and consistent with the past practices of this
[c]ourt.” Pet. Mot. at 8.

                    b. The Government’s Response.
        Although the Government does not challenge the court’s jurisdiction over Petitioners’
Motion For Review in this case, the Government points out that the United States Court of Appeals
for the Federal Circuit has held that the United States Court of Federal Claims has jurisdiction to
review “a decision by the [S]pecial [M]aster concerning compensation.” Gov’t Resp. at 1 n.7
(quoting Shaw v. Sec’y of Health & Human Servs., 609 F.3d 1372, 1375 (Fed. Cir. 2010) (emphasis
added)). Arguably, the Special Master’s December 1, 2015 Order on redactions does not concern
compensation. Gov’t Resp. at 1. “However, [P]etitioners’ request for redaction was necessitated
by the issuance of the decision denying entitlement, which clearly is a decision ‘concerning
compensation.’” Gov’t Resp. at 1. Therefore, the Government interprets Petitioners’ December
31, 2015 Motion For Review “as intrinsically tied” to a decision concerning compensation. Gov’t
Resp. at 1. But, the Government “reserves the right to challenge the [c]ourt’s jurisdiction in future
cases in which an order denying a redaction request is not related to a decision concerning
compensation, such as when redaction is sought prior to the issuance of any ‘decision concerning
compensation.’” Gov’t Resp. at 1 n.1.

       Because the United States Court of Appeals for the Federal Circuit “has yet to interpret
Section 12(d)(4) of the [Vaccine] Act as it pertains to redaction[,] . . . the Special Master first
properly looked to other decisions for guidance[.]” Gov’t Resp. at 4. The Special Master discussed
the two different redaction approaches: Langland, 2011 WL 802695 and W.C.,100 Fed. Cl. 440.

        In Langland, the Special Master replaced a minor child’s name with initials and redacted
the child’s date of birth, but did not redact anything else. Gov’t Resp. at 5 (citing Langland, 2011

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WL 802695 at *11). The Special Master determined this was the best approach for four reasons.
First, “Congress mandated in Section 12(b)(2) of the [Vaccine] Act that [the Government] publish
a list of all vaccine claims in the [Federal Register].” Gov’t Resp. at 5 (citing Langland, 2011 WL
802695 at *6). Second, “Congress protected information submitted by [P]etitioners during
adjudication of their claims under Section 12(d)(4)(A).6 Id. Third, “Congress required that
[S]pecial [M]aster decisions be published[.]” Id. Fourth, “Congress conferred upon [S]pecial
[M]asters authority to redact only a narrow subset of personal information.” Id.

        In W.C., the United States Court of Federal Claims relied “on Supreme Court cases
interpreting FOIA [the Freedom of Information Act][.]” Gov’t Resp. at 6 (citing W.C., 100 Fed.
Cl. at 460). The court determined that redacting the petitioner’s name from the Special Master’s
decision was the best approach. Id.

        In this case, the Special Master concluded that the W.C. approach was more appropriate
and “[P]etitioners . . . have not shown that the Special Master’s solution . . . was an abuse of
discretion or contrary to law.” Gov’t Resp. at 6. Moreover, “the Special Master’s denial of
[P]etitioners’ request for redaction of the case number was legally permissible, as it is grounded
in this [c]ourt’s rules.” Gov’t Resp. at 6. RCFC 79(a)(2) requires that all papers filed with the
clerk “must be marked with the file number[.]” RCFC 79(a)(2) (emphasis added).

        Although Petitioners cite ten cases where the petitioners’ names and case numbers were
redacted, those decisions are not binding in this case. Gov’t Resp. at 7 n.4 (citing Hanlon v. Sec’y
of Health & Human Servs., 40 Fed. Cl. 625, 630 (1998) (“Special [M]asters are neither bound by
their own decisions nor by cases from the [United States] Court of Federal Claims, except, of
course, in the same case on remand.”)). Moreover, the Government “attempted to locate the cited
cases to review the circumstances and rationale that led to the redaction of both case name and
case number.” But, “[w]ithout any case-identifying information, . . . [the Government] was unable
to do so.” Gov’t Resp. at 7 n.4.

       Therefore, “[t]he Special Master’s Ruling was in accord with the law, was neither arbitrary
nor capricious, and was not an abuse of discretion.” Gov’t Resp. at 7.

                   c. The Court’s Resolution.
        As a threshold matter, the court reviews the Special Master’s Order On Motion To Redact
Decision de novo. Redaction requires an interpretation of the Vaccine Act, which is a question of
law. See Hawkins v. United States, 469 F.3d 993, 1000 (Fed. Cir. 2006) (“Statutory construction
is a matter of law that we review de novo.”).




       6
         Section 300aa-12(d)(4)(A) of the Vaccine Act, in relevant part, provides: “[I]nformation
submitted to a [S]pecial [M]aster or the court in a proceeding on a petition may not be disclosed
to a person who is not a party to the proceeding without the express written consent of the person
who submitted the information.” 42 U.S.C. § 300aa-12(d)(4)(A).
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       Section 300aa-12(d)(4)(B) of the Vaccine Act, in relevant part, provides that:
       A decision of a [S]pecial [M]aster or the court in a proceeding shall be disclosed,
       except that if the decision is to include information:
              i. which is trade secret or commercial or financial information which is
                 privileged and confidential, or
             ii. which are medical files and similar files the disclosure of which would
                 constitute a clearly unwarranted invasion of privacy,
       and if the person who submitted such information objects to the inclusion of such
       information in the decision, the decision shall be disclosed without such
       information.

42 U.S.C. § 300aa-12(d)(4)(B) (emphasis added).
         The United States Court of Appeals for the Federal Circuit has observed that “remedial
legislation like the Vaccine Act should be construed in a manner that effectuates its underlying
spirit and purpose.” Figueroa v. Sec'y of Health & Human Servs., 715 F.3d 1314, 1317 (Fed. Cir.
2013) (internal quotations omitted). Although the United States Court of Appeals for the Federal
Circuit has not interpreted Section 300aa-12(d)(4)(B) of the Vaccine Act, the Freedom of
Information Act (“FOIA”), 42 U.S.C. § 300aa-25(c)(1) is instructive. See W.C., 100 Fed. Cl. at
458 (stating that there is a “direct parallel between this exemption [5 U.S.C. § 552(b)(6)] in FOIA
and the privacy provision added . . . to the Vaccine Act[.]”).

        Section 552(b)(6) of FOIA requires that the Government disclose information, but provides
an exception for “personnel and medical files and similar files the disclosure of which would
constitute a clearly unwarranted invasion of privacy.” 5 U.S.C. § 552(b)(6). Section 552(b)(6)
bears a striking resemblance to Section 300aa-12(d)(4)(B) of the Vaccine Act’s exempting
“medical files and similar files the disclosure of which would constitute a clearly unwarranted
invasion of privacy.” 42 U.S.C. § 300aa-12(d)(4)(B). “[W]here two statutes use similar language
we generally take this as a ‘strong indication that [they] should be interpreted pari passu.’”
Smith v. City of Jackson, 544 U.S. 228, 260 (2005) (citations omitted).

       The United States Supreme Court has held that redaction of individual names is appropriate
under Section 552(b)(6) of FOIA when the names “would be linked publicly with . . . personal
information.” United States Dept. of State v. Ray, 502 U.S. 164, 175–76 (1991). The Court,
however, did not require replacing the redacted names with “John Doe.” Therefore, in this case,
the Special Master was not required to redact and replace Petitioners’ name with “John Doe” or
“Jane Doe.”

        With respect to Petitioners’ request to redact the case numbers, RCFC 79(a)(2) requires
that the Clerk of the United States Court of Federal Claims to mark all “appearances, orders,
verdicts, and judgments” with a file number. RCFC 79(a)(2). The court is cognizant of
Petitioners’ concern that the “super-availability of information on the [I]nternet” renders case
number redaction appropriate in this case. Pet. Mot. at 7. But under Petitioners’ rationale, all
vaccine case numbers should be redacted. This practice would render RCFC 79(a)(2) meaningless.
Moreover, the court must balance privacy concerns with the “importance of the public interest in


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. . . disclosure.” Ray, 502 U.S. at 179. Redacting and replacing Petitioners’ names with initials,
but not replacing the case numbers achieves this balance.

       For these reasons, the court has determined that the Special Master appropriately redacted
and replaced Petitioners’ names with initials and that this approach was in accordance with law.

   IV.     CONCLUSION.

        For these reasons, the court affirms the Special Master’s December 1, 2015 Order. The
court denies Petitioners’ December 31, 2015 Motion For Review. The Clerk of the Court is
directed to enter judgment accordingly.

         IT IS SO ORDERED.


                                                     s/ Susan G. Braden
                                                    SUSAN G. BRADEN
                                                    Judge




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