  United States Court of Appeals
      for the Federal Circuit
                ______________________

STEPHANIE VINO FIGUEROA, as Personal Repre-
  sentative of the Estate of MANNY FIGUEROA,
                       deceased,
                Petitioners-Appellants,

                           v.

      SECRETARY OF HEALTH AND HUMAN
                  SERVICES,
              Respondent-Appellee.
             ______________________

                      2012-5064
                ______________________

    Appeal from the United States Court of Federal
Claims in 10-VV-750, Judge Lynn J. Bush.
                ______________________

                 Decided: May 1, 2013
                ______________________

    MARTIN E. LEACH, Feiler & Leach, P.L., of Coral Ga-
bles, Florida, argued for petitioners-appellants.

    MELONIE J. MCCALL, Trial Attorney, Torts Branch,
Civil Division, United States Department of Justice, of
Washington, DC, argued for respondent-appellee. With
her on the brief were STUART F. DELERY, Acting Assistant
Attorney General, RUPA BHATTACHARYYA, Director, MARK
2                                          FIGUEROA   v. HHS

W. ROGERS, Deputy Director, and GABRIELLE M. FIELDING,
Assistant Director.
                 ______________________

     Before DYK, PROST, and REYNA, Circuit Judges.
    Opinion for the Court filed by Circuit Judge DYK.
     Dissenting opinion filed by Circuit Judge PROST.
    DYK, Circuit Judge.
    Stephanie Vino Figueroa, widow of Manny Figueroa
and personal representative of his estate, filed a petition
under the Vaccine Act seeking compensation for vaccine-
related injuries suffered by Mr. Figueroa. See National
Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3755, codified at 42 U.S.C. §§ 300aa-1 to -34
(“Vaccine Act”).     The special master dismissed Ms.
Figueroa’s petition, reasoning that because Mr. Figueroa
had died of pancreatic cancer, a non-vaccine-related
cause, Ms. Figueroa lacked standing to file a petition for
injury compensation. The Court of Federal Claims af-
firmed.     Ms. Figueroa appeals, arguing that Mr.
Figueroa’s claim for vaccine-related injury compensation
survived his death, and that the Act does not bar his
personal representative from pursuing that claim on
behalf of his estate. We agree that Mr. Figueroa’s injury
claim survived his death and that Ms. Figueroa, the
personal representative of his estate, has standing to file
a petition. We therefore reverse.
                      BACKGROUND
    Mr. Figueroa received the flu vaccine on October 28,
2008.    Within twenty days of the vaccination, Mr.
Figueroa developed numbness in his face, impaired
speech, and weakness. He was hospitalized and diag-
nosed with Guillain-Barré Syndrome (“GBS”), a debilitat-
ing and sometimes fatal nervous system disorder.
 FIGUEROA   v. HHS                                        3
    Because GBS is not listed on the Vaccine Injury Ta-
ble, see 42 U.S.C. § 300aa-14(a), it is considered an off-
Table injury, and requires proof that the vaccine caused
the injury. See generally Althen v. Sec’y of HHS, 418 F.3d
1274, 1278 (Fed. Cir. 2005). Nonetheless, “many flu
[vaccine] causing GBS cases have been compensated
under the Program.” Torday v. Sec’y of HHS, No. 07-
372V, 2009 U.S. Claims LEXIS 745, at *10 (Fed. Cl. Sp.
Mstr. Dec. 10, 2009) (observing that “there is clearly a
medical theory connecting the flu vaccine to GBS”); see
also, e.g., Griglock v. Sec’y of HHS, 99 Fed. Cl. 373, 374
(2011) (noting that government did not contest that GBS
resulted from influenza vaccination), aff’d, 687 F.3d 1371
(Fed. Cir. 2012); Stewart v. Sec’y of HHS, No. 06–777,
2011 WL 3241585 (Fed. Cl. Sp. Mstr. July 8, 2011) (find-
ing that petitioner successfully showed GBS resulted from
influenza vaccine).
    Mr. Figueroa had 36 months from the onset of his
symptoms to file a petition under the Vaccine Act, that is,
until approximately mid-November, 2011. See 42 U.S.C.
§ 300aa-16(a)(2). However, in February of 2010, Mr.
Figueroa was diagnosed with pancreatic cancer; he died of
pancreatic cancer in April of 2010. His widow, Stephanie
Vino Figueroa, was named the personal representative of
his estate. On November 1, 2010, Ms. Figueroa filed a
petition seeking compensation for the vaccine-related
neurological injuries Mr. Figueroa suffered prior to his
death. Since the pancreatic cancer which caused Mr.
Figueroa’s death was not vaccine-related, the petition did
not seek a death benefit.
    It is not disputed that the estate satisfied the re-
quirements for a timely petition under section 300aa-
16(a)(2), because the petition was filed less than thirty-six
months after the onset of Mr. Figueroa’s GBS. Nor is it
disputed that Mr. Figueroa could have filed the petition
while alive (or that his representative could have filed it
for him, had he been alive but disabled). However, the
4                                           FIGUEROA   v. HHS
Secretary filed a motion to dismiss on the grounds that
Ms. Figueroa “is not a proper petitioner under 42 U.S.C.
§ 300aa-11(b)(1)(A).” Figueroa ex rel. Figueroa v. Sec’y of
HHS, No. 10-750V, 2011 WL 2784586 at *1 (Fed. Cl. Sp.
Mstr. June 22, 2011). The government argued that sec-
tion 300aa-11(b)(1)(A) provides an exclusive list of indi-
viduals who may file a petition, and that the personal
representative of an individual who dies of non-vaccine-
related causes is not among them.
    That section provides:
    any person who has sustained a vaccine-related
    injury, the legal representative of such person if
    such person is a minor or is disabled, or the legal
    representative of any person who died as the result
    of the administration of a vaccine . . . may, if the
    person meets the requirements of subsection (c)(1)
    of this section, file a petition for compensation un-
    der the Program.
42 U.S.C. § 300aa-11(b)(1)(A) (emphasis added). The
special master agreed, concluding that “even though if
Mr. Figueroa had filed his own action when he was alive,
his estate may have received some amount of compensa-
tion,” Ms. Figueroa lacked standing to file a petition on
his behalf, because she was not among the individuals
listed in section 300aa-11(b)(1)(A). Figueroa, 2011 WL
2784586, at *3–4.
     Ms. Figueroa sought review of the special master’s de-
cision, and the Court of Federal Claims affirmed.
Figueroa v. Sec’y of HHS, 101 Fed. Cl. 696 (2011). The
court acknowledged that the most relevant precedent,
Zatuchni v. Sec’y of HHS, 516 F.3d 1312 (Fed. Cir. 2008),
had “express[ed] no view” on whether a petitioner in Ms.
Figueroa’s situation would have standing. Figueroa, 101
Fed. Cl. at 697 (quoting Zatuchni, 516 F.3d at 1321).
However, the court reasoned that section 300aa-
11(b)(1)(A) permitted only three categories of claimants to
 FIGUEROA   v. HHS                                         5
file a petition in the first instance: (1) vaccine-injured
persons themselves, (2) the legal representatives of mi-
nors or disabled persons, and (3) the legal representatives
of the estates of persons who died of vaccine related
causes. Id. at 697–98. Because Mr. Figueroa had died,
the petition did not fall under category (1); because the
cancer was fatal, rather than merely disabling him, the
petition did not fall under category (2); and because the
cancer was not vaccine-related, the petition did not fall
under category (3). Id. at 698. The court concluded that
section 300aa-11(b)(1)(A) did not allow a petition seeking
compensation for Mr. Figueroa’s vaccine-related injuries
to be filed. Id.
    Ms. Figueroa timely appealed. We have jurisdiction
pursuant to 42 U.S.C. § 300aa-12(f). Statutory interpre-
tation is a question of law, and we review the Court of
Federal Claims’ interpretation of the Vaccine Act de novo.
Whitecotton v. Sec’y of HHS, 17 F.3d 374, 376 (Fed. Cir.
1994), rev’d on other grounds, 514 U.S. 268 (1995).
                        DISCUSSION
                              I
    This case requires us to address two questions re-
served by this court in Zatuchni: whether the personal
injury claim of a vaccine-injured individual who died from
causes unrelated to the vaccine survives his or her death,
and whether the personal representative of the estate has
standing to file a petition under the Vaccine Act. See 516
F.3d at 1320–21.
     In 1986, Congress enacted the Vaccine Act to address
two primary concerns: first, “that the tort system was
failing to adequately compensate persons injured from
vaccinations,” and second, that there was too much vac-
cine-related tort litigation. Cloer v. Sec’y of HHS (Cloer I),
654 F.3d 1322, 1325 (Fed. Cir. 2011) (en banc). Congress
recognized that “a small but significant number” of people
6                                         FIGUEROA   v. HHS
“ha[d] been gravely injured” by vaccines, “and they and
their families have resorted . . . to the tort system for
some form of financial relief.” H.R. Rep. No. 99-908, at 4
(1986), reprinted in 1986 U.S.C.C.A.N. 6344, 6345. Relief,
however, was often unobtainable:
    For the relatively few who are injured by vac-
    cines—through no fault of their own—the oppor-
    tunities for redress and restitution are limited,
    time-consuming, expensive, and often unan-
    swered. . . . [I]n the end, no recovery may be
    available. Yet futures have been destroyed and
    mounting expenses must be met.
Id. at 6, reprinted in 1986 U.S.C.C.A.N. at 6347; see also
Lowry ex rel. Lowry v. Sec’y of HHS, 189 F.3d 1378, 1381
(Fed. Cir. 1999).
     In response, Congress established the National Vac-
cine Injury Compensation Program, see 42 U.S.C.
§ 300aa-10(a), “a no-fault compensation program ‘de-
signed to work faster and with greater ease than the civil
tort system,’” Bruesewitz v. Wyeth LLC, 562 U.S. ___, ___,
131 S. Ct. 1068, 1073 (2011) (quoting Whitecotton, 514
U.S. at 269). The Program provides compensation for
vaccine-related injuries, see 42 U.S.C. §§ 300aa-15(a)(1),
(3),(4), and, “in the event of a vaccine-related death, an
award of $250,000 for the estate of the deceased,” 42
U.S.C. § 300aa-15(a)(2). “Any person” injured by a vac-
cine may petition for compensation.             42 U.S.C.
§ 300aa-11(b)(1)(A). 1




    1   Both injury claims and death benefit claims are
limited to a “vaccine-related injury or death” caused by a
vaccine set forth in the Vaccine Injury Table. See 42
U.S.C. § 300aa-11 (c)(1)(A); see also 42 U.S.C. § 300aa-
15(a); 42 U.S.C. § 300aa-33 (defining “vaccine-related
 FIGUEROA   v. HHS                                       7
     It is not disputed that a claim for injury compensation
under the Vaccine Act survives the injured person’s death
and may be asserted by the personal representative of the
estate in most situations, including (1) when the petition
is filed before death by an injured individual who subse-
quently dies from non-vaccine-related causes; (2) when
the petition is filed before death by a vaccine-injured
individual who subsequently dies from vaccine-related
causes, see Zatuchni, 516 F.3d at 1323; and (3) when the
petition is filed after death by the estate of a vaccine-
injured individual who dies of vaccine-related causes, see
Griglock, 687 F.3d at 1374–75; Zatuchni, 516 F.3d at
1321. The only dispute is with respect to the situation
here, when the petition is filed after the death of a vac-
cine-injured individual who died of non-vaccine related
causes. Treating the petitioner differently in the present
situation would be inconsistent with the fundamental
objectives of the Act.
     As this court, sitting en banc, has recognized,
“[r]emedial legislation like the Vaccine Act should be
construed in a manner that effectuates its underlying
spirit and purpose.” Cloer v. Sec’y of HHS (Cloer II), 675
F.3d 1358, 1362 (Fed. Cir. 2012) (en banc) (citing
Atchison, Topeka, & Santa Fe Ry. Co. v. Buell, 480 U.S.
557, 561–62 (1987)); see also, e.g., Peyton v. Rowe, 391
U.S. 54, 65 (1968) (citing the “canon of construction that
remedial statutes should be liberally construed”). We
have also recognized that the Act was meant “[t]o com-
pensate injured persons quickly and fairly,” with “‘relative
certainty and generosity’ of compensation.” Cloer I, 654
F.3d at 1325–26 (quoting H.R. Rep. No. 99-908, at 12–13,
reprinted in 1986 U.S.C.C.A.N. at 6353–54).




injury or death”); 42 C.F.R. § 100.3 (Vaccine Injury Table,
including, inter alia, the influenza vaccine).
8                                           FIGUEROA   v. HHS
     In particular, as explained in our en banc decision in
Cloer I, the Vaccine Act enshrines a principle of equal
treatment for similarly situated vaccine-injured persons.
See id. at 1340 (holding that the inequitable results
following from a discovery rule precluded the application
of such a rule to claims under the Act). It follows that
similarly situated individuals “who receive the same
vaccine on the same day, and who experience the same
medically-recognized symptom of a vaccine-related injury
shortly afterwards,” id., and who then suffer similar harm
as a result, should be treated equally for purposes of
standing to seek compensation.
    The government’s reading of the Act would instead
treat similarly situated parties quite differently, based on
the unforeseeable “personal circumstances” of an inde-
pendent illness or injury. Id. If two individuals received
the same vaccine on the same day, experienced the same
nonfatal complications, and sought identical compensa-
tion, but died of accidents within days of one another—
one the day before filing a petition, and the other the day
after—the estate of the person who had not yet filed could
recover nothing, while the other estate would receive the
maximum injury benefit allowable under the Act. This
makes no sense. Moreover, if neither party filed a petition
before dying, but the first died of an accident and the
second died some time later of vaccine-related complica-
tions, the first person’s estate would recover nothing,
while the second person’s estate would recover injury
compensation and death benefits. Again, this makes no
sense. It is illogical to attribute to Congress a purpose to
deny some claimants compensation while allowing com-
pensation for others who suffer identical vaccine-related
injuries. At oral argument, the government could offer no
rational reason why Congress would have chosen to
distinguish between injury claims filed before and after
death, or between the claims of those who died of a vac-
cine-related cause and those who did not. “The fact that a
 FIGUEROA   v. HHS                                        9
vaccine-related death followed a vaccine-related injury in
a particular case does not alter the fact that certain
expenses were incurred, wages lost, or pain and suffering
endured in the interim.” Zatuchni, 516 F.3d at 1318.
                             II
     The government contends, however, that despite the
policies of the Act, its language compels a different result,
arguing that the “plain language of the Act does not
provide for the personal representative of the estate of an
individual who died from a non-vaccine-related cause to
file a claim for injury compensation.” U.S. Br. 6.
    “Statutory construction . . . is a holistic endeavor.”
United Sav. Ass’n of Tex. v. Timbers of Inwood Forest
Assocs., 484 U.S. 370, 371 (1988). We must consider the
language of section 300aa-11(b)(1)(A) in light of “the
specific context in which that language is used, and the
broader context of the statute as a whole.” Robinson v.
Shell Oil Co., 519 U.S. 337, 341 (1997). The ultimate
question here is whether the estate of an individual who
is injured by a vaccine, and thus qualified to recover
compensation under the Vaccine Act, may file a petition
after the individual dies from a cause unrelated to the
vaccine. This requires the resolution of two underlying
issues: (1) whether the injured individual’s cause of action
survives his or her death, and (2) whether the personal
representative of the injured individual’s estate may file a
petition on that cause of action.
                             A
    The language of the Act does not speak to the first
question, but it is well-established that the background
rule is that remedial claims survive the death of the
injured party. Our law recognizes that “‘[t]he basic feder-
al rule is that an action for a penalty does not survive,
though remedial actions do.’” Phillips v. Shinseki, 581
F.3d 1358, 1367 (Fed. Cir. 2009) (emphasis added) (quot-
10                                          FIGUEROA   v. HHS
ing Faircloth v. Finesod, 938 F.2d 513, 518 (4th Cir.
1991)); see also Ex parte Schreiber, 110 U.S. 76, 80 (1884).
As discussed below, our sister circuits have likewise
reached the conclusion that claims under remedial federal
statutes survive, even in the absence of an express statu-
tory provision. See generally 6 Moore’s Federal Practice
§ 25.11[3] (3d ed. 2012) (“Generally, under the federal
common law, a federal claim survives the death of the
party if the claim is remedial and not penal in nature.”).
A petition for compensation under the Vaccine Act is
clearly remedial. See Cloer II, 675 F.3d at 1362. Thus,
the presumption is that it survives, in the absence of a
statutory provision to the contrary.
    The dissent’s rather startling response to this line of
cases is that they were wrong to rely on this presumption
of survivorship, because a Supreme Court case from the
turn of the century, Michigan Central Railroad Co. v.
Vreeland, 227 U.S. 59 (1913), rejected such a presumption
in the context of the Federal Employers’ Liability Act of
1908 (“FELA”). However, our decision in Phillips and the
decisions of other circuits that have found survivorship
under federal statutes are fully consistent with Supreme
Court precedent.
    Under the old common law principles prevailing at
the time of Michigan Central, personal injury actions
abated upon the death of either the injured party or the
tortfeasor. See generally Wex S. Malone, The Genesis of
Wrongful Death, 17 Stan. L. Rev. 1043, 1044–47 (1965).
In light of those common law principles, the Supreme
Court held in Michigan Central that an injury action
under a federal statute did not survive unless the statute
expressly provided for survival. Mich. Cent., 227 U.S. at
67–68 (holding that FELA actions did not survive an
injured employee’s death); see also St. Louis, Iron Moun-
tain & S. Ry. Co. v. Craft, 237 U.S. 648 (1915) (describing
the 1910 amendment which overruled the result in Michi-
gan Central). But during the last century, as states
 FIGUEROA   v. HHS                                       11
enacted legislation providing for survival, the common
law rule changed. “[V]irtually every state today . . . has
some form of survival statute, the exact provisions of
which vary but the gist of which is to permit a personal
injury action to continue after the death of either the
plaintiff or defendant.” W. Page Keeton et al., Prosser &
Keeton on Torts § 126, at 942 (5th ed. 1984) (“Prosser &
Keeton”). Thus, “the principle of the survival of causes of
action . . . rather than being exceptional, has now become
the rule in almost every common-law jurisdiction.” Cox v.
Roth, 348 U.S. 207, 210 (1955). “[W]here a common-law
principle is well established . . . courts may take it as
given that Congress has legislated with an expectation
that the principle will apply except when a statutory
purpose to the contrary is evident.” Astoria Fed. Sav. &
Loan Ass’n v. Solimino, 501 U.S. 104, 108 (1991) (quota-
tion marks omitted). The legislation here—the Vaccine
Act—was enacted in 1986, against this changed legal
background.
    In more recent opinions, the Supreme Court has rec-
ognized that in light of these changed background princi-
ples, remedial claims survive. 2 Cox v. Roth is nearly on


    2   The dissent cites four cases to illustrate that the
Supreme Court has “directly applied” the rule of Michigan
Central many times, but the cited cases did not involve
the survival of claims under federal statutes. For exam-
ple, in Florida ex rel Vars v. Knott, 308 U.S. 506 (1939),
appellant Vars was denied an insurance agent’s license by
a Florida official acting under color of Florida law. See
State ex rel Vars v. Knott, 184 So. 752, 753 (Fla. 1938).
Both parties agreed that Vars’ constitutional challenge to
the Florida law abated with Vars’ death. 308 U.S. at 506.
Miles v. Apex Marine Corp., 498 U.S. 19 (1990), also cited
by the dissent, is also irrelevant. To the extent it ad-
dressed survivorship, it specifically “decline[d] to address”
whether, in light of the widespread adoption of state
12                                          FIGUEROA   v. HHS
point. While Cox considered the survival of claims after
the death of the tortfeasor, its reasoning is equally appli-
cable to the death of the injured party. In construing the
Jones Act and FELA, which “contained no clause specifi-
cally providing for the survival of actions against de-
ceased tortfeasors,” the Court recognized the new, more
liberal state approach: “advancing civilization and social
progress have brought 43 of our States to include in their
general law the principle of the survival of causes of
action against deceased tortfeasors.” 348 U.S. at 208,
210. Thus, the Court held that the old common law rule
against the survival of personal tort actions when the
tortfeasor died would not be followed in interpreting a
remedial federal statute. Id. 3


statutes abrogating traditional common-law limitations,
courts should adopt a general maritime survivorship rule.
Id. at 36–37. The Court instead held narrowly that “a
general maritime survival action cannot include recovery
for decedent’s lost future earnings,” id. at 37, because
“there is little legislative support for such recovery in
survival,” id. at 35, and such “a remedy . . . is disfavored
by a clear majority of the States,” id. at 37.
    The dissent also suggests that Robertson v. Wegmann,
436 U.S. 584 (1978), reaffirmed the old common law rule.
But Robertson did no such thing: in that case, it was
undisputed that “the decision as to the applicable survi-
vorship rule [wa]s governed by 42 U.S.C. § 1988,” id. at
588, which directed federal courts to apply state law.
Thus, as the Court observed, “the survivorship rules in
areas where the courts are free to develop federal common
law—without first referring to state law and finding an
inconsistency—can have no bearing on our decision here.”
Id. at 593–94 n.11.
     3 See also Moragne v. States Marine Lines, Inc., 398
U.S. 375, 390–92 (1970) (recognizing a general maritime
 FIGUEROA   v. HHS                                       13
    Following the Supreme Court’s lead in Cox and other
modern cases, our court and our sister circuits have
repeatedly and appropriately held that remedial claims
survive even where federal statutes fail to provide for
survivorship. In closely analogous circumstances, we
have held that claims survive and can be recovered by the
deceased’s personal representative, even if the statute
does not explicitly provide for such recovery.
    In Phillips v. Shinseki, 581 F.3d 1358 (Fed. Cir. 2009),
a veteran died before judgment on his disability claim was
entered in his favor. Id. at 1361. His daughter, acting as
his personal representative, filed a claim for attorney fees
under the Equal Access to Justice Act (EAJA). Id. EAJA
provides in relevant part that “a court shall award to a
prevailing party other than the United States fees and
other expenses . . . incurred by that party in any civil
action . . . .” 28 U.S.C. § 2412(d)(1)(A) (emphasis added).
The EAJA’s filing provision specifies that the “party
seeking an award of fees and other expenses shall . . .
submit to the court an application . . . which shows that
the party is a prevailing party and is eligible to receive an
award.” Id. at § 2412 (d)(1)(B) (emphasis added). Though
it was clear that the veteran, not his daughter, was the

wrongful death action because “numerous and broadly
applicable statutes, taken as a whole, make it clear that
there is no present public policy against allowing recovery
for wrongful death”); Van Beeck v. Sabine Towing Co., 300
U.S. 342, 347 (1937) (holding that consistent with “the
rule in many of the state courts in which like statutes are
in force,” a mother’s claim under the Merchant Marine
Act of 1920 for compensation for the negligent death of
her son did not abate at her death); Carlson v. Green, 446
U.S. 14, 23 (1980) (holding that a Bivens action survives
the death of the injured person because it is “a creation of
federal law and, therefore, the question [of survival] is a
question of federal law”).
14                                          FIGUEROA   v. HHS
“prevailing party” for purposes of EAJA, see also Padgett
v. Shinseki, 643 F.3d 950, 956 (Fed. Cir. 2011), Phillips
recognized that the EAJA fees claim survived, and “if the
right to recover fees on an EAJA claim survives the death
of the veteran, there is no reason to hold that the veteran
must survive until the EAJA application is filed in order
for the veteran’s estate to have the right to pursue an
EAJA award,” in light of EAJA’s remedial purposes.
Phillips, 581 F.3d at 1367; see also White v. United States,
543 F.3d 1330 (Fed. Cir. 2008) (holding that even though
estates are not among the beneficiaries enumerated in the
Public Safety Officers Benefits Act, the estate of a claim-
ant who died before her claim had been processed could
collect the statutory benefit). Other circuits have reached
similar conclusions about the survivorship of remedial
claims. 4 There is no basis for reaching a different result
here.
    Indeed, our prior decisions under the Act similarly
recognize that personal injury claims survive. As stated
earlier, vaccine-related injury claims survive death in
most situations, including (1) when the petition is filed
before death by an injured individual who subsequently
dies of non-vaccine-related causes, (2) when the petition is

     4   See United States v. NEC Corp., 11 F.3d 136 (11th
Cir. 1993) (qui tam actions under the False Claims Act
survive the death of the relator); Faircloth v. Finesod, 938
F.2d 513 (4th Cir. 1991) (civil RICO claims survive to be
filed by the administratrix of the injured party’s estate);
Smith v. No. 2 Galesburg Crown Fin. Corp., 615 F.2d 407
(7th Cir. 1980) (Truth in Lending Act claims survive
plaintiff’s death under federal common law), overruled on
other grounds, Pridegon v. Gates Credit Union, 683 F.2d
182 (7th Cir. 1982); Dellaripa v. N.Y., New Haven &
Hartford R.R. Co., 257 F.2d 733 (2d Cir. 1958) (a parent’s
FELA claims for death benefits and compensation for a
child’s injuries both survive the parent’s death).
 FIGUEROA   v. HHS                                       15
filed before death by an injured individual who subse-
quently dies of vaccine-related causes, and (3) when the
petition is filed after death by the estate of an injured
individual who dies of vaccine-related causes. If an injury
claim survives in all these circumstances, it must survive
here as well. Even if in situation (3), the survival of the
injury claim could be inferred from the provision of the
Act which allows a personal representative to file a peti-
tion on behalf of the estate of a person who dies of vac-
cine-related causes, see 42 U.S.C. § 300aa-11(b)(1)(A),
there is no statutory language that could be construed as
providing for survivorship in the first two situations,
where the estate is substituted on the injured person’s
petition. Nor can survivorship in those two situations be
inferred from the Federal Rules of Civil Procedure author-
izing substitution; substitution is only permissible if the
underlying claim is not “extinguished” on the party’s
death. Fed. R. Civ. P. 25; see also Ct. Fed. Cl. R. 25(a)(1).
Whether the claim is extinguished is a question of sub-
stantive law. See Charles Alan Wright & Arthur R.
Miller, 7C Federal Practice and Procedure: Civil § 1954
(3d ed. 2012). Thus, injury claims necessarily survive the
death of the injured party.
                             B
    With respect to the second question—whether the
personal representative of the injured individual’s estate
may file a petition asserting the surviving cause of ac-
tion—the government again maintains that suit is barred.
The government contends that although a personal repre-
sentative may be substituted on a pending petition filed
by an injured individual who died of non-vaccine related
causes, that representative cannot file a new petition after
death, because the Act authorizes a representative to file
a petition only on behalf of an injured individual who died
of vaccine-related causes. This argument is based entire-
ly on section 300aa-11(b)(1)(A), which states:
16                                           FIGUEROA   v. HHS
     (b) Petitioners.
     (A) Except as provided in subparagraph (B), any
     person who has sustained a vaccine-related inju-
     ry, the legal representative of such person if such
     person is a minor or is disabled, or the legal repre-
     sentative of any person who died as the result of
     the administration of a vaccine set forth in the
     Vaccine Injury Table may, if the person meets the
     requirements of subsection (c)(1) of this section, 5
     file a petition for compensation under the Pro-
     gram.
42 U.S.C. § 300aa-11(b)(1)(A) (emphasis added). In the
government’s view, this section establishes a rule that
“any person who has sustained a vaccine-related injury”
may file a petition while alive, but authorizes only the
estates of those “who died as the result of the administra-
tion of a vaccine” to file petitions after the vaccine-injured
person has died. Id. (emphasis added).
     The government’s argument is inconsistent with both
the structure and the text of the Act. The Act never
expressly states that a personal representative may only
bring suit if he or she represents a decedent who died of
vaccine-related causes. While the Act specifies that
certain persons “may not” file a petition, the personal
representative of an individual who died of non-vaccine-
related causes is not among them. See, e.g., 42 U.S.C.
§ 300aa-11(a)(7) (persons who have received a civil set-
tlement “for a vaccine-related injury or death . . . may not
file a petition under subsection (b) of this section for such
injury or death”).
   The existence of section 300aa-11(b)(1)(A) does not
suggest otherwise. As the dissent acknowledges, the


     5 The requirements of subsection (c)(1) are not rele-
vant here.
 FIGUEROA   v. HHS                                        17
interpretive canon expressio unius est exclusio alteris
applies where “the term left out must have been meant to
be excluded.” Chevron U.S.A. Inc v. Echazabal, 536 U.S.
73, 81 (2002).
    The Supreme Court’s recent decision in Marx v. Gen-
eral Revenue Corp., 568 U.S. ___, 133 S. Ct. 1166 (2013),
is quite similar to the present case. There, the govern-
ment argued that a provision for the award of costs in the
Fair Debt Collection Practices Act, 15 U.S.C.
§ 1692k(a)(3), impliedly mandated that costs not be
awarded in other circumstances. Marx, 568 U.S. at ___,
133 S.Ct. at 1175. The Court rejected this theory, stating
that
   [t]he argument of . . . the United States depends
   critically on whether § 1692k(a)(3)’s allowance of
   costs creates a negative implication that costs are
   unavailable in any other circumstances. The force
   of any negative implication, however, depends on
   context. We have long held that the expressio
   unius canon does not apply “unless it is fair to
   suppose that Congress considered the unnamed
   possibility and meant to say no to it,” and that the
   canon can be overcome by “contrary indications
   that adopting a particular rule or statute was
   probably not meant to signal any exclusion.” In
   this case, context persuades us that Congress did
   not intend § 1692k(a)(3) to foreclose courts from
   awarding costs under Rule 54(d)(1).
Id. (citations omitted). Here, similarly, the statutory
context does not give rise to a negative implication. As in
Marx, there is a relevant “background presumption,”
which is a “highly relevant contextual feature.” Id. This
is the presumption that remedial claims survive.
    So, too, the Supreme Court has declined to apply the
canon where Congress has “an obvious reason for select-
ing the [examples] that are addressed” in the statute, and
18                                          FIGUEROA   v. HHS
omitting others. Setser v. United States, 566 U.S. ___,
___, 132 S. Ct. 1463, 1469 (2012). An obvious reason why
Congress authorized “the legal representative of any
person who died as the result of the administration of a
vaccine” to file a petition in the first instance was to
ensure access to the Act’s death benefit. See 42 U.S.C.
§ 300aa-15(2) (providing, “[i]n the event of a vaccine-
related death, an award of $250,000 for the estate of the
deceased”).
    Death benefit claims and personal injury claims are
distinct causes of action with distinct beneficiaries. A
personal injury claim belongs to the injured person, and
upon death, passes to the estate. See Prosser & Keeton
§ 126, at 942 (“The survival action . . . is not a new cause
of action [but] the cause of action held by the decedent
immediately before or at death, now transferred to his
personal representative.”). In contrast, a death benefit
claim belongs not to the decedent, but to the decedent’s
survivors or estate. Thus, statutes that authorize wrong-
ful death actions typically include provisions specifying
the person authorized to file suit (usually the personal
representative), see generally Robert VanHorne, Wrongful
Death Recovery: Quagmire of the Common Law, 34 Drake
L. Rev. 987, 1010 (1984), as do federal workers’ compensa-
tion statutes, see, e.g., FELA, 45 U.S.C. § 51 (making
employers “liable . . . in case of the death of such employ-
ee, to his or her personal representative”). The Vaccine
Act is no exception. Section 300aa-11(b)(1)(A) simply
authorizes the personal representative of a qualifying
estate to sue for death benefits. In other words, “the legal
representative of any person who died as the result of the
administration of a vaccine” in section 300aa-11(b)(1)(A)
does not restrict who may file a petition for injury com-
pensation, but rather establishes that if the estate is
eligible for death benefits, the representative of the estate
may file a petition on the estate’s behalf.
 FIGUEROA   v. HHS                                        19
    The legislative history of the Act demonstrates a di-
rect relationship between the provision of a death benefit
payable to the estate and the addition of the “legal repre-
sentative” language to section 300aa-11(b)(1)(A). Of the
two draft bills under consideration by Congress, S. 827
and H.R. 1780, only the Senate bill, which in large part
became the basis for the final legislation, provided for a
death benefit payable to the parents of the deceased, and
for the recovery of expenses resulting from a vaccine-
related injury that were incurred before death. S. 827
originally provided that:
    (2) In the event of a death, compensation of not
    less than $300,000 and not more than $700,000
    for the parents of the deceased (or other appropri-
    ate family member as determined by the court),
    plus such expenses as may have been incurred
    under paragraph (1) prior to death.
National Childhood Vaccine Improvement Act of 1985, S.
827, 99th Cong. (introduced April 2, 1985), § 2107(a)(2).
S. 827 made no reference to suit by a personal representa-
tive, except in the case of a minor. See id. at § 2102(b). In
the subsequent House bill, H.R. 5184, and likewise in the
final House bill, H.R. 5546, (1) the death benefit was
retained, but made payable to the estate, not the parents;
(2) the provision regarding suit by the legal representa-
tive of the estate was added; and (3) the reference to
recovery of expenses “prior to death” was omitted. These
provisions of H.R. 5546 were then enacted into law. See
National Childhood Vaccine Injury Act of 1986, H.R.
5546, 99th Cong., (1986) (enacted as Title III of Pub. L.
99-660, §§ 2111(b)(1), 2115(a)(2)). Thus, the final version
of the Act represents a legislative choice to make the
death benefit payable to the injured person’s estate upon
suit by the personal representative, and the addition of
the “representative” language to section 300aa-11(b)(1)(A)
was linked to the provision authorizing the death benefit
payable to the estate. Moreover, the final legislation
20                                           FIGUEROA   v. HHS
became deliberately silent as to the recovery of pre-death
expenses, leaving such issues to the background rules of
common law.
    In construing an enacted law, the Supreme Court has
often looked to the history of amendments made to the
draft legislation. See, e.g., Green v. Bock Laundry Mach.
Co., 490 U.S. 504, 524–26 (1989) (recognizing that confer-
ees had “access to all of Rule [of Evidence] 609’s precur-
sors, particularly the drafts prepared by the House
Subcommittee and Senate Judiciary committee,” and
construing the final Rule in light of draft provisions that
“deliberately were eliminated”); Schilling v. Rogers, 363
U.S. 666, 672–73 (1960) (construing the enacted statute in
light of the omission of draft provisions included in a
House bill); Schwegmann Bros. v. Calvert Distillers Corp.,
341 U.S. 384, 390–91 (1951) (construing a statute to
reflect “continuity” between the Senate bill ultimately
enacted and prior draft legislation). In particular, the
deletion of the draft language linking recovery of pre-
death expenses to the death benefit “strongly militates
against a judgment that Congress intended a result that
it expressly declined to enact,” see Gulf Oil Corp. v. Copp
Paving Co., 419 U.S. 186, 200 (1974), i.e., that pre-death
expenses could only be recovered by the personal repre-
sentative of the estate if the vaccine-injured individual
died of vaccine-related causes.
     Finally, other aspects of the Act’s legislative history
make clear that Congress intended the Act to treat in-
jured individuals inclusively and equitably, even after
death. House Report No. 99-908, which “contains an
‘authoritative’ account of Congress’ intent” in drafting the
Act, Bruesewitz, 562 U.S. at ___, 131 S.Ct. at 1083 (Brey-
er, J., concurring), states that all personal representatives
may file petitions on behalf of vaccine-injured persons:
     Subsection (b)—Petitioners.—A petition may be
     filed by any person (or his or her legal representa-
 FIGUEROA   v. HHS                                     21
   tive) who has been injured by a vaccine listed in
   the Vaccine Injury Table.
H.R. Rep. No. 99-908, at 14 (1986), reprinted in 1986
U.S.C.C.A.N. at 6355 (second emphasis added). 6 In light
of this inclusive language, it is unsurprising that the
House Report never draws any distinctions between the
personal representatives of injured individuals who died
before or after filing, or between the injury compensation
claims of those who die of vaccine-related causes or unre-
lated causes.
                      CONCLUSION
    We conclude that the vaccine-related injury claims of
an individual who dies of non-vaccine-related causes
survive death, and that the decedent’s personal repre-
sentative may file a petition to recover on those claims
after death. We remand to the Special Master for pro-
ceedings consistent with this opinion.
             REVERSED and REMANDED




   6    The relevant statutory language—“any person
who has sustained a vaccine-related injury, the legal
representative of such person if such person is a minor or
is disabled, or the legal representative of any person who
died as the result of the administration of a vaccine set
forth in the Vaccine Injury Table”—was the same at the
time of the House Report. Compare 42 U.S.C. § 300aa-
11(b)(1)(A) (2006) with National Childhood Vaccine Injury
Act of 1986, H.R. 5546, 99th Cong., § 2111(b)(1) (1986)
(enacted as Title III of Pub. L. 99-660).
  United States Court of Appeals
      for the Federal Circuit
                 ______________________

STEPHANIE VINO FIGUEROA, as Personal Repre-
  sentative of the Estate of MANNY FIGUEROA,
                       deceased,
                Petitioners-Appellants,

                            v.

      SECRETARY OF HEALTH AND HUMAN
                  SERVICES,
              Respondent-Appellee.
             ______________________

                       2012-5064
                 ______________________

    Appeal from the United States Court of Federal
Claims in 10-VV-750, Judge Lynn J. Bush.
                ______________________

PROST, Circuit Judge, dissenting.
     The majority’s opinion clearly conflicts with binding
Supreme Court precedent, the plain language of the
Vaccine Act, and decades of consistent decisions by the
United States Court of Federal Claims. I must respectful-
ly dissent.
                            I
    The majority holds that Ms. Figueroa’s petition with
the National Vaccine Compensation Program was permis-
sible because she was the legal representative of Mr.
Figueroa’s estate and Mr. Figueroa’s cause of action for
2                                           FIGUEROA   v. HHS
injuries he sustained from a vaccine survived his unrelat-
ed death. To reach that conclusion, the majority does not
rely on any express language in the Vaccine Act; the Act
does not specifically provide for the survival of such
causes of action under the Program. Instead, the majority
reads a “presumption” into federal common law that
personal injury actions arising under federal law survive
the death of a plaintiff absent “a statutory provision to the
contrary.” Majority Op. at 10. Therefore, in the majori-
ty’s view, because the Vaccine Act is silent regarding
survivorship, causes of action arising under the Vaccine
Act survive.
    The majority’s conclusion, however, is directly op-
posed to the outcome mandated by Supreme Court prece-
dent. The Court has held that, if a federal law creating a
remedial cause of action for personal injuries is silent
regarding survivorship, causes of action under the law do
not survive the death of a plaintiff. Mich. Cent. R. Co. v.
Vreeland, 227 U.S. 59, 67 (1913) (holding that a cause of
action for personal injury under federal law is extin-
guished by the death of the injured party “unless th[e]
Federal statute which declares the liability . . . asserted
provides that the right of action shall survive the death of
the injured [person]”). 1 That precedent has never been
overruled. 2


    1   The Supreme Court has only recognized one—
unsurprising—exception to that rule: if the defendant in a
Bivens action caused the death of the plaintiff through his
unconstitutional acts, the plaintiff’s claim survives his
death. Carlson v. Green, 446 U.S. 14, 24-25 (1980). That
holding simply extends to Bivens actions Congress’s
express abrogation of the common law rule for § 1983
actions. See 42 U.S.C. § 1988.
    2 The Supreme Court has directly applied the
common law rule many times before and after its decision
 FIGUEROA   v. HHS                                       3
    While the majority acknowledges the existence of the
Court’s holding in Michigan Central, it brushes it aside
because, “as states enacted legislation providing for
survival, the common law rule changed.” Majority Op. at
10-11. 3 The majority’s reliance on state law survival
statutes to displace the holding in Michigan Central
cannot be correct. As the Michigan Central Court recog-
nized, many states had passed statutes providing for
survival upon the death of an injured plaintiff. It ex-
plained, however, that survivability of personal injury




in Michigan Central. See, e.g., Florida ex rel. Vars v.
Knott, 308 U.S. 506 (1939) (dismissing appeal because the
cause of action abated at the death of the plaintiff); Seale
v. Georgia, 209 U.S. 554 (1908) (same); Kaipu v. Pinkham,
206 U.S. 566 (1907) (same); Beard v. Arkansas, 207 U.S.
601 (1907) (same).
    3   The majority asserts that “the common law [for
survival] rule changed” because “states enacted legisla-
tion providing for survival.” Majority Op. at 10-11.
According to the majority, Congress therefore enacted the
Vaccine Act in 1986 against “this changed legal back-
ground,” not the common law rule espoused by Michigan
Central. Id. But the Supreme Court reaffirmed the
continued applicability of Michigan Central four years
after Congress passed the Vaccine Act. See Miles v. Apex
Marine Corp., 498 U.S. 19, 32 (1990). And, although it
did not expressly address the entire holding in Michigan
Central, the Court in Miles reiterated that, “under com-
mon law,” a “[plaintiff’s] personal [injury] cause of action
does not survive the [plaintiff’s] death.” Id. at 33. If in
fact “th[at] common law rule changed” by 1986 as the
majority asserts, the Supreme Court seems to have
missed that point.
4                                           FIGUEROA   v. HHS
actions created by federal law depends only on Congress’s
choice to provide for survival. 4
    The statutes of many of the states expressly pro-
    vide for the survival of the right of action which

    4    Moreover, Congress knows how to provide, if and
when it wishes, for survival of personal actions under
federal law. See, e.g., Employer’s Liability Act, 45 U.S.C.
§ 59 (expressly providing for survival of an action); 28
U.S.C. § 2404 (authorizing survival of an action upon
death of a defendant if the action was “commenced by or
on behalf of the United States”); 42 U.S.C. § 1988 (modify-
ing common law survivability for civil rights actions); 42
U.S.C. § 1986 (expressly creating right of survivorship for
certain actions). Given the “presumption” of survivability
they rely upon for their holding, the majority must view
those provisions by Congress as completely unnecessary.
I choose, however, to conclude that Congress added them
because it believed them to be necessary. In fact, unlike
the majority claims, exceptions to the common law rule
that personal injury suits die with an injured plaintiff has
never been uniformly established. See, e.g., Wright &
Miller, 7C Fed. Prac. & Proc. Civ. § 1954 (3d ed. 2012)
(discussing how the federal rule for the survivability of
tort actions is not “well-established” and that the move by
federal courts towards survivability of such actions is only
a “discernable trend”); Malcolm v. King, 686 So. 2d 231,
235 (Ala. 1996) (holding, in the context of a medical
malpractice claim, that Alabama law dictates that “an
unfiled tort claim will generally not survive the death of
the person with the claim”); Vulk v. Haley, 736 P.2d 1309,
1313 (Idaho 1987) (holding that “an action for pain and
suffering does not survive the death of the injured”);
Minn. Stat. Ann. § 573.02, Subd. 2 (2006) (permitting
trustee to only “maintain” a personal injury action after
death of injured person for causes unrelated to the tortu-
ous injury, but not file one).
 FIGUEROA   v. HHS                                       5
   the injured person might have prosecuted if he
   had survived, but unless this Federal statute
   which declares the liability here asserted provides
   that the right of action shall survive the death of
   the injured employee, it does not pass to his rep-
   resentative, notwithstanding state legislation.
   The question of survival is not one of procedure,
   but one which depends on the substance of the
   cause of action.
Mich. Cent., 227 U.S. at 67 (quotation marks omitted).
    Nor does it matter, as the majority contends, that
subsequent Supreme Court cases “nearly on point” pro-
vide for the survival of causes of actions when individuals
other than an injured plaintiff die. Majority Op. at 11-12.
The equitable and common law considerations are differ-
ent in those situations. None of the cases cited by the
majority overrule or abrogate Michigan Central, 5 and we,
therefore, should follow it. 6


    5    In Cox v. Roth, the Supreme Court discussed how
forty-three states provided, by statute, that causes of
actions survived the death of an alleged tortfeasor, but not
a plaintiff. 348 U.S. 207, 210 (1955). The Court never
addressed the effect of the death of an injured party. And
in Van Beek v. Sabine Towing Co., the Court held that an
action for wrongful death survived the death of an estate’s
administrator, not an injured plaintiff. 300 U.S. 342, 349
(1937). In that case, the Court even stated that the
injured party’s cause of action would have survived only
because the relevant federal statute expressly provided
for survival.
    Nor is it compelling that some courts have relied on
the Supreme Court’s holding in Ex parte Schreiber, 110
U.S. 76 (1884), to declare that remedial, but not penal,
actions under federal law generally survive. Ex parte
Schreiber simply does not stand for that broad proposi-
6                                           FIGUEROA   v. HHS
                             II
    The majority further compounds its error by ignoring
the plain language of 42 U.S.C. § 300aa-11(b)(1)(A). That
subsection states:
    any person who has sustained a vaccine-related
    injury, the legal representative of such person if
    such person is a minor or is disabled, or the legal
    representative of any person who died as the re-
    sult of the administration of a vaccine . . . may, if
    the person meets the requirements of subsection
    (c)(1) of this section, file a petition for compensa-
    tion under the Program.
42 U.S.C. § 300aa-11(b)(1)(A). As that plain language
demonstrates, Congress specified two types of individuals
who may initially file a petition for compensation under
the Program: individuals who have been harmed by a
vaccine and legal representatives of individuals who have


tion. The Ex parte Schreiber Court was discussing only
the effect of the death of a tortfeasor on the survival of a
plaintiff’s cause of action. That should be clear from the
Court’s later statement in Michigan Central that
“[n]othing is better settled than that, at common law, the
right of action for an injury to the person is extinguished
by the death of the party injured.” 227 U.S. at 67.
    6   The Supreme Court has declined to create the
majority’s federal common law rule in the only case it
decided since Michigan Central that presented such a
rule. Roberson v. Wegmann, 436 U.S. 584, 587-88 (1978)
(holding that a federal civil rights action abated at death
under Louisiana law and dismissing the Fifth Circuit’s
creation of a federal common law rule for survival of
remedial actions under federal law even though there was
a “marked tendency of the federal courts to allow actions
to survive”).
 FIGUEROA   v. HHS                                        7
been harmed by vaccine. And Congress further specified
particular classes of legal representatives that could file a
petition: those who represent minors, those who represent
disabled persons, and those who represent individuals
who died from vaccine-related causes. The petition in this
case, of course, does not fall into any of those categories,
as Ms. Figueroa is the legal representative of an individu-
al who died from non-vaccine-related causes.
     The Supreme Court has instructed how to interpret a
statute that includes such a specific listing of a related
series of individuals who may access a remedy for a wrong
through a particular process: the list of individuals should
be read as exhaustive and exclusive of others “in circum-
stances supporting a sensible inference that the term left
out must have been meant to be excluded.” Chevron
U.S.A. Inc. v. Echazabal, 536 U.S. 73, 81 (2002); see also
Barnhart v. Peabody Coal Co., 537 U.S. 149, 168-69
(2003) (discussing that the canon expressio unius est
exclusio alterius applies when a statute lists members of
an “associated group or series” that go “hand in hand”);
Nat’l R. R. Passenger Corp. v. Nat’l Ass’n of R. R. Passen-
gers, 414 U.S. 453, 458 (1974) (“[W]hen legislation ex-
pressly provides a particular remedy or remedies, courts
should not expand the coverage of the statute to subsume
other remedies. When a statute limits a thing to be done
in a particular mode, it includes the negative of any other
mode.” (citations and quotation marks omitted)). Such an
inference is sensible here, for it is “fair to suppose that
Congress considered [permitting petitions by other types
of legal representatives] and meant to say no to it.” Marx
v. Gen. Revenue Corp., 133 S. Ct. 1166, 1175 (2013) (dis-
cussing how expressio unius est exclusio alterius applies if
it is “fair to suppose that Congress considered the un-
named possibility and meant to say no to it”). In the
Vaccine Act, Congress defined the particular process by
which compensation for harms caused by vaccines would
be compensated under the Program.               In § 300aa-
8                                          FIGUEROA   v. HHS
11(b)(1)(A), it delineated the legal representatives that
would qualify to file a petition based on the type of indi-
vidual whom they represented, including a type of de-
ceased individual. It seems quite sensible, therefore, to
conclude that Congress considered all the types of indi-
viduals for whom it wished to allow recovery under the
Program through a petition by a legal representative and
specifically chose to exclude individuals who died of non-
vaccine related causes. 7
    The majority, however, insists that Congress could
not have meant for the list of legal representatives in
§ 300aa-11(b)(1)(A) to be exhaustive because barring
petitions from legal representatives like Ms. Figueroa
would “make[] no sense” and would illogically “attribute

    7   For nearly two decades, the Court of Federal
Claims has also interpreted § 300aa-11(b)(1)(A) to bar
petitions from legal representatives of individuals who
died of non-vaccine related causes. See Sigal v. Sec’y of
Health & Human Servs., 2008 WL 2465790 (Fed. Cl. Spc.
Mstr. 2008) (not reported); Cohn v. United States, 44 Fed.
Cl. 658, 659-60 (Fed. Cl. 1999) (same); Conrad v. Sec’y of
Health & Human Servs., 1:90-vv-2820, D.I. 44 (Fed. Cl.
1997) (same) Buxkemper v. Sec’y of Dep’t of Health &
Human Servs., 32 Fed. Cl. 213, 223-25 (Fed. Cl. 1994)
(same). Fifteen years ago, we affirmed that interpretation
of the Vaccine Act, and Congress has since amended the
language of 42 U.S.C. § 300aa-11 twice without any
change to subsection (b)(1)(A). Conrad v. Sec’y of Health
& Human Servs., 1998 U.S. App. LEXIS 6155 (Fed. Cir.
1998), cert denied, 525 U.S. 820 (1998); see Vaccine Injury
Compensation Program Modification Act, Pub.L. 105-277,
Div. C, Title XV, § 1502, 12 Stat. 2681-741 (Oct. 21, 1998)
(amending the language of 42 USCA § 300aa–11 but not
42 U.S.C. § 300aa-11(b)(1)(A)); Children’s Health Act of
2000, Pub.L. 106-310, Div. A, Title XVII, § 1701(a), 114
Stat. 1151 (Oct. 17, 2000) (same).
 FIGUEROA   v. HHS                                         9
to Congress a purpose to deny some claimants compensa-
tion while allowing compensation for others who suffer
identical vaccine-related injuries.” Majority Op. at 8. But
the conclusion I reach, based on the clear statutory lan-
guage, is neither nonsensical nor illogical; in fact, it is
reflected in how the Program routinely operates.
    As first implemented, the Program limited compensa-
tion to those petitioners who died from vaccine-related
causes or to those petitioners who suffered from a vaccine-
related injury for more than six months. H.R. 5546, 99th
Cong. § 2211(c)(1)(D), as amended by, PL 100–203, De-
cember 22, 1987, 101 Stat 1330; see 42 U.S.C. § 300aa-
11(c)(1)(D) (current provision with similar restrictions).
So if two individuals suffered identical vaccine-related
injuries from the same batch of vaccines administered on
the same day and one died five months later of vaccine-
related causes but the other five months later from an
unfortunate accident, only the individual who died from
vaccine-related causes would be eligible for compensation
under the Program. It is not nonsensical, in my view, to
conclude that Congress desired that outcome and wanted
to compensate only ongoing disability—which obviously
would expire at death. See H.R. REP. 100-391, 698-99,
1987 (discussing how the Program was designed to be
limited “to cases in which a person dies from the result of
vaccine or in which a person incurs . . . medical expenses .
. . and suffers ongoing disabilities” (emphasis added)).
Reading the Vaccine Act to determine the permissibility
of petitions by cause of death is in no way abnormal or
irrational in context of the whole Act; nor is it illogical or
unfair to read § 300aa-11(b)(1)(A) to bar certain petitions
from legal representatives based on the cause of death of
the individuals whom they represent.
    Despite that sensible reading of § 300aa-11(b)(1)(A),
the majority also claims that it discovered Congress’s
“obvious” purpose for listing the legal representative of an
individual who died from vaccine-related causes in
10                                         FIGUEROA   v. HHS
§ 300aa-11(b)(1)(A): to enable recovery of the death bene-
fit provided by the Program to the estates of individuals
who died from vaccine-related causes. Majority Op. at 17-
18. I, unfortunately, cannot decipher how the majority
reaches this conclusion. It juxtaposes disparate sections
from legislation originating in separate houses of Con-
gress to find meaning in the final language of the Vaccine
Act. But comparing language from a draft bill in the
Senate to language in a draft bill in the House reveals
nothing about the meaning of the language in § 300aa-
11(b)(1)(A) without accounting for the hundreds of other
differences in how recovery was limited in the multiple
circulating drafts of the Program. For example, the
Senate bill the majority relies upon provided that “[a]ny
eligible person may, through counsel or otherwise, seek
compensation under the Program.” S. 827, 99th Cong.
§ 2204(a). The majority suggests no reason why Congress
failed to use that language, which certainly would have
permitted legal representatives of estates to recover the
death benefit. Moreover, the majority simply ignores that
the House bill—and the language in it—was ultimately
used because the Senate entirely removed the Program
from its bill to “leave[] for resolution in the 100th Con-
gress the still pressing issues of victim’s compensation
and tort reform.” Senate Report 99-483, at 5, accompany-
ing S. 827 as reported Sept. 24, 1986. Thus, the language
in S. 827, upon which the majority’s rationale hinges,
never even made it out of committee; it was removed
because the Senate desired to postpone action and extend
debate into the next Congress—not because it preferred
the House’s language. Presented with obvious alterna-
tives, it seems telling that the majority cannot find a
single statement of intent in the thousands of pages of the
legislative history of the Vaccine Act that supports the
“obvious” purpose it declares for the language in § 300aa-
11(b)(1)(A). 8

     8   The majority claims that the Supreme Court has
 FIGUEROA   v. HHS                                    11
                           III
   The majority’s opinion does not comport with either
Supreme Court precedent or the plain language of the
Vaccine Act. I respectfully dissent.




“often” engaged in similar analysis of Congressional
purpose it does here. Majority Op. at 20. It is no secret
that the Supreme Court has, in certain cases, found
meaning in drafting history. But in such cases, the Court
relied on the clear import of drafting changes by Con-
gress. As discussed, the import of “changes” found by the
majority here is simply not clear.
