Case: 20-1137    Document: 36     Page: 1   Filed: 08/11/2020




   United States Court of Appeals
       for the Federal Circuit
                  ______________________

 ROBERT DAVID DUPUCH-CARRON, ELIZABETH
      JOANNA CARRON, AS THE LEGAL
 REPRESENTATIVES OF THEIR MINOR SON, A. R.
                     D-C.,
            Petitioners-Appellants

                             v.

       SECRETARY OF HEALTH AND HUMAN
                   SERVICES,
               Respondent-Appellee
              ______________________

                        2020-1137
                  ______________________

     Appeal from the United States Court of Federal Claims
 in No. 1:17-vv-01551-RAH, Judge Richard A. Hertling.
                  ______________________

                 Decided: August 11, 2020
                  ______________________

     CURTIS RANDAL WEBB, Twin Falls, ID, argued for peti-
 tioners-appellants.

     ROBERT PAUL COLEMAN, III, Vaccine/Torts Branch,
 Civil Division, United States Department of Justice, Wash-
 ington, DC, argued for respondent-appellee. Also repre-
 sented by ETHAN P. DAVIS, C. SALVATORE D'ALESSIO,
 GABRIELLE M. FIELDING, CATHARINE E. REEVES.
                   ______________________
Case: 20-1137    Document: 36      Page: 2    Filed: 08/11/2020




2                                      DUPUCH-CARRON   v. HHS



 Before PROST, Chief Judge, CLEVENGER and STOLL, Circuit
                         Judges.
 CLEVENGER, Circuit Judge.
      Appellants Robert David Dupuch-Carron and Eliza-
 beth Joanna Carron, husband and wife, are the legal rep-
 resentatives of the estate of their deceased infant son, A.R.
 D-C. Appellants filed an action seeking compensation for
 injuries allegedly compensable under the National Vaccine
 Injury Compensation Act, 42 U.S.C. §§ 300aa–1 et seq.
 (“the Vaccine Act”). Appellants asserted standing to seek
 compensation pursuant to 42 U.S.C. § 300aa–
 11(c)(1)(B)(i)(III), which grants standing to a person who
 “received [a covered] vaccine outside the United States or
 a trust territory and the vaccine was manufactured by a
 vaccine manufacturer located in the United States and
 such person returned to the United States not later than 6
 months after the date of the vaccination.” On the parties’
 cross-motions for summary judgment, the Special Master
 ruled that Appellants are ineligible to seek compensation
 under the Vaccine Act, granted the Secretary of the De-
 partment of Health & Human Services’ (the “Government”
 or “HHS”) motion, and dismissed the petition. See Dupuch-
 Carron v. Sec’y of Health & Hum. Servs., No. 17-1551V,
 2019 WL 2263369 (Fed. Cl. Apr. 23, 2019). Appellants filed
 a motion for review with the United States Court of Federal
 Claims (“the Claims Court”) pursuant to 42 U.S.C. §
 300aa–12(e). The Claims Court denied Appellants’ motion
 for review. See Dupuch-Carron v. Sec’y of Health & Hum.
 Servs., 144 Fed. Cl. 659 (2019). For the reasons discussed
 herein, we affirm.
                        BACKGROUND
                           I. Facts
     Appellants were domiciled in Nassau, The Bahamas,
 for the entirety of the time period relevant to this case.
 Mrs. Carron is a citizen of the United Kingdom and avers
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 DUPUCH-CARRON   v. HHS                                     3



 that she is a “frequent visitor to the United States,” spend-
 ing “10 to 12 long weekends” in the country each year.
 Dupuch-Carron, 144 Fed. Cl. at 660. During a trip to Coral
 Gables, Florida from March 24 to April 3, 2015, Mrs. Car-
 ron visited an internist, who informed her that she was
 pregnant. After learning of her pregnancy, she claims to
 have traveled to the United States an additional four times
 while pregnant.
     Mr. Dupuch-Carron was born in the United States. He
 appears to have grown up in The Bahamas but recalls
 “spen[ding] a great deal of time [in the United States] as a
 child during the summer holidays.” Id. (alteration in orig-
 inal). Mr. Dupuch-Carron also avers that he is a “frequent
 visitor to the United States,” spending “between 30 and 45
 days in the United States on business” in a typical year.
 Id.
     Mr. and Mrs. Dupuch-Carron’s son, A.R. D-C., was
 born on November 24, 2015, at Doctors Hospital in Nassau,
 The Bahamas. He continued to live in Nassau for the first
 six months of his life. During that time, A.R. D-C. had un-
 remarkable well-child visits at his pediatric center in Nas-
 sau, and was considered to be healthy and developing
 normally. He also received his first two sets of vaccinations
 in Nassau, with no apparent adverse consequences.
     On June 23, 2016, during his six-month well-child visit
 to his pediatrician in Nassau, A.R. D-C. received his third
 set of vaccinations, which included the DTap, IPV, HIB,
 HBV, Prevnar, and rotavirus vaccinations. There is no dis-
 pute that the eight vaccines A.R. D-C. received during his
 June 23rd visit to the pediatrician are listed in the Vaccine
 Injury Table and were manufactured by companies with a
 presence in the United States.
     On July 7, 2016 and July 9, 2016, A.R. D-C. presented
 at the pediatrician with complaints of a fever greater than
 102 degrees Fahrenheit, crankiness, stuffy nose, rattling in
 his chest, occasional chesty coughs, reduced activity,
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4                                     DUPUCH-CARRON   v. HHS



 vomiting, and diarrhea. A.R. D-C.’s parents brought him
 to the emergency room at Doctors Hospital in Nassau on
 July 10, 2016 with complaints of fever and vomiting for five
 days, irritability, and decreased appetite. The doctors de-
 termined he had thrombocytopenia and pancytopenia for
 which he received a blood transfusion, and febrile neutro-
 penia for which he was given an intravenous antibiotic. On
 July 11, 2016, A.R. D-C. was transferred to the intensive
 care unit at Princess Margaret Hospital in Nassau, where
 a pediatric hematologist-oncologist recommended he be
 transferred to an institution “equipped to enable quick turn
 around and confirmation of the leukemia if present.”
 Dupuch-Carron, 144 Fed. Cl. at 661.
     Physicians in The Bahamas determined that A.R. D-C.
 would receive better treatment in the United States, and
 on July 13, 2016, A.R. D-C. was transferred by air ambu-
 lance to Nicklaus Children’s Hospital in Miami, Florida,
 where he was diagnosed with hemophagocytic lymphohis-
 tiocytosis (“HLH”). HLH is an autoimmune disease of the
 blood, fatal unless treated successfully. A.R. D-C. was
 treated at Nicklaus Children’s Hospital until he was dis-
 charged on August 12, 2016, “on the condition he remain in
 Florida as an outpatient.” Id.
     A.R. D-C. received weekly treatment as an outpatient
 at Nicklaus Children’s Hospital. A.R. D-C. was cleared to
 leave the United States over the Christmas season, so the
 family returned to The Bahamas. On February 28, 2017,
 A.R. D-C. was readmitted to Nicklaus Children’s Hospital.
 He was diagnosed with acute myeloid leukemia (“AML”).
 A.R. D-C. underwent treatment, which included chemo-
 therapy and radiation at Cincinnati Children’s Hospital in
 Cincinnati, Ohio, as well as a bone-marrow transplant at
 Johns Hopkins Bloomberg Children’s Hospital in Balti-
 more, Maryland.
     On October 17, 2017, Appellants filed a petition under
 the Vaccine Act. On December 24, 2017, A.R. D-C. died
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 DUPUCH-CARRON   v. HHS                                     5



 from AML, and on March 26, 2018, Appellants filed an
 amended petition, alleging that the AML, which caused
 A.R. D-C.’s death, was a complication resulting from the
 treatment he had received for his vaccine-induced HLH.
                  II. Procedural History
     In Vaccine Act cases, the Claims Court and its special
 masters have jurisdiction over proceedings to determine if
 a petitioner under § 300aa–11 is entitled to compensation
 and the amount of such compensation. 42 U.S.C. § 300aa–
 12(a).
     Prior to the filing of the amended petition, the Special
 Master in this case identified, as a threshold question, the
 issue of whether Appellants were eligible for compensation
 under the Vaccine Act because the vaccines were adminis-
 tered outside of the United States. The Special Master di-
 rected the parties to file cross-motions for summary
 judgment on that limited issue.
     On March 26, 2018, concurrent with their filing of the
 amended petition, Appellants filed a Motion for Partial
 Summary Judgment on the limited issue of their eligibility
 under the Vaccine Act for compensation. Specifically, Ap-
 pellants argued that A.R. D-C. “returned,” under that
 term’s plain meaning of “go back,” to the United States
 within 6 months of receiving his vaccinations as required
 by 42 U.S.C. § 300aa–11(c)(1)(B)(i)(III). Appellants, citing
 the maternal immunization amendment to the Vaccine Act
 as support, argued that A.R. D-C.’s initial entrance into the
 United States occurred while in utero, and that A.R. D-C.’s
 “return” to the United States occurred when he traveled to
 Florida seeking medical treatment for HLH within 6
 months of receiving his vaccinations.
     On June 7, 2018, the Government filed a Cross-Motion
 for Summary Judgment on that threshold issue. The Gov-
 ernment argued that “the recent maternal immunization
 amendment to the Vaccine Act establishes that a child in
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6                                      DUPUCH-CARRON    v. HHS



 utero can ‘receive’ a vaccine but it does not establish that
 the child in utero was ‘present’ in the United States for pur-
 poses of a later ‘return.’” Dupuch-Carron, 2019 WL
 2263369, at *5. Specifically, the Government argued that:
 (1) 42 U.S.C. § 300aa–11(c)(1)(B)(i)(III) requires that a
 “person” “return” to the United States within six months of
 receiving a vaccination; (2) A.R. D-C.’s “ mother’s entries
 into the United States while pregnant do not mean that
 [he] was ‘present’ [as a person] in the United States prior
 to birth”; and (3) “A.R. D-C. was not present in the United
 States at any time between his birth and his vaccinations.”
 Id. (internal citations omitted). Thus, according to the Gov-
 ernment, because A.R. D-C. had never previously been in
 the United States as a “person,” as required by the statute,
 his “post-vaccination entry into the United States cannot
 constitute a ‘return.’” Id.
     The Government also argued that even if A.R. D-C. is
 recognized as a “person” who was present in the United
 States while in utero, A.R. D-C. did not “return[] to the
 United States,” under a proper interpretation of the
 phrase, within six months after the date of vaccination.
 Specifically, the Government argued that a court does not
 construe statutes in a vacuum, and the words of a statute,
 such as “return,” must be read in their context and with a
 view to their place in the overall statutory scheme. As sup-
 port, the Government cited to the Claims Court’s decision
 in McGowan v. Secretary of the Department of Health &
 Hum. Services, which found that because “the word ‘return’
 relies on its context in order to impart a sense of perma-
 nence, the plain meaning rule is not dispositive.” 31 Fed.
 Cl. 734, 738 (1994). Instead, according to the McGowan
 court, the phrase “returned to the United States” was lim-
 ited to persons who had previously lived in the United
 States and returned within six months of vaccination with
 the intention to remain permanently in the United States
 from that point on. See id. at 734–40.
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 DUPUCH-CARRON   v. HHS                                     7



     Appellants filed their Response and Reply on July 12,
 2018. On April 23, 2019, however, the Special Master de-
 nied Appellants’ Motion and granted the Government’s Mo-
 tion. First, the Special Master found that while “Congress
 did expressly amend the Vaccine Act to permit a cause of
 action alleging that a child was injured by transplacental
 exposure to a vaccine administered to his or her mother
 (but only after that child was born alive),” “this amendment
 did not change the definition of child or person,” which is
 limited to live-born members of the species homo sapiens.
 Dupuch-Carron, 2019 WL 2263369, at *6. Thus, according
 to the Special Master, “A.R. D-C., while living and breath-
 ing outside of his mother’s body, was never present in the
 United States before his vaccinations or the onset of his se-
 vere illness” and “his entrance to the United States, while
 within six months after the vaccinations at issue, cannot
 be construed as a ‘return.’” Id. Second, the Special Master
 found that even if A.R. D-C. was viewed to be a person upon
 being carried in utero into the United States, there was not
 sufficient evidence that he would have “returned to the
 United States” within six months, as that phrase was con-
 strued in McGowan. Id. at *10.
     On May 23, 2019, Appellants filed a Motion for Review
 of the Special Master’s decision, asking the Claims Court
 to review and reverse the Special Master’s decision. In the
 Motion for Review, Appellants raised the following objec-
 tion:
     The special master’s conclusion that the petitioners
     were not eligible to seek compensation from the
     National Vaccine Injury Compensation Program
     because their son [A.R. D-C.]: 1) could not be
     viewed as a person who was present in the United
     States prior to his vaccinations; and 2) had not re-
     turned to the United States within six months after
     vaccinations was not in accordance with the law.
 Dupuch-Carron, 144 Fed. Cl. at 662.
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8                                        DUPUCH-CARRON     v. HHS



     The Government filed its Response to Appellants’ Mo-
 tion for Review on June 20, 2019, arguing that the Special
 Master’s decision on Appellants’ eligibility to seek compen-
 sation under the Vaccine Act was correct. With the Claims
 Court’s leave, Appellants filed their Reply on July 5, 2019.
 The Claims Court heard oral argument on Appellants’ Mo-
 tion for Review on September 5, 2019.
     The Claims Court issued its opinion under seal on Sep-
 tember 10, 2019 and reissued it for public availability on
 September 25, 2019. With respect to the first issue, the
 Claims Court found that “[t]he Vaccine Act considers a
 child whose mother receives a vaccine while the child is in
 utero to be a ‘person,’” and therefore assumed without de-
 ciding, for the purposes of its analysis, that A.R. D-C. was
 a “person” under the relevant portions of the Vaccine Act,
 with a prior presence in the United States. Dupuch-Car-
 ron, 144 Fed. Cl. at 664 n.12. Thus, before the Claims
 Court, the case turned on the second issue raised by Appel-
 lants—whether A.R. D-C.’s arrival for medical treatment
 constituted “return” for the purposes of the Vaccine Act’s
 exception to its requirement that claimants be vaccinated
 in the United States.
     While the Claims Court declined to adopt the more nar-
 row reading of the statute advanced in McGowan, it never-
 theless found that, “[i]n light of the silence in the legislative
 record and the presumptions attendant to the task of stat-
 utory interpretation in this case, [there is] nothing to sug-
 gest that Congress meant to cover foreign nationals
 arriving in the United States for the purpose of seeking
 medical treatment when it used the word ‘return’ in the
 Vaccine Act.” Id. at 666. Accordingly, “[b]ecause A.R. D-
 C.’s entry into the United States to receive medical treat-
 ment did not fall within the more specific meaning of ‘re-
 turn to the United States’” laid out by the Claims Court,
 the court held that A.R. D-C. had “not satisfied the require-
 ments under 42 U.S.C. § 300aa–11(c)(1)(B)(i)(III),” id. at
 667, and denied Appellants’ Motion for Review.
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 DUPUCH-CARRON   v. HHS                                      9



     This appeal followed.
                          DISCUSSION
      This court has jurisdiction to review the final judgment
 of the Claims Court under 42 U.S.C. § 300aa–12(f). In Vac-
 cine Act cases, we review the Claims Court’s decision de
 novo, “applying the same standard of review as the Court
 of Federal Claims applied to its review of the special mas-
 ter’s decision.” Griglock v. Sec’y of Health & Hum. Servs.,
 687 F.3d 1371, 1374 (Fed. Cir. 2012) (citation omitted); see
 also Paluck v. Sec’y of Health & Hum. Servs., 786 F.3d
 1373, 1378 (Fed. Cir. 2015). “We owe no deference to the
 trial court or the special master on questions of law, but we
 uphold the special master’s findings of fact unless they are
 arbitrary or capricious.” Lozano v. Sec’y of Health & Hum.
 Servs., 958 F.3d 1363, 1368 (Fed. Cir. 2020) (citing
 Griglock, 687 F.3d at 1374). “Thus, although we are re-
 viewing as a matter of law the decision of the Court of Fed-
 eral Claims under a nondeferential standard, we are in
 effect reviewing the decision of the Special Master under
 the deferential arbitrary and capricious standard on fac-
 tual issues.” Griglock, 687 F.3d at 1374 (internal citations
 omitted).
     The Vaccine Act gives the Claims Court (and its special
 masters) jurisdiction “over proceedings to determine if a
 petitioner under section 300aa–11 of this title is entitled to
 compensation under the [Vaccine Injury Compensation]
 Program and the amount of such compensation.” Martin
 ex rel. Martin v. Sec’y of Health & Hum. Servs., 62 F.3d
 1403, 1406 (Fed. Cir. 1995) (quoting 42 U.S.C. § 300aa–
 12(a) (Supp. V 1993)). “Section 300aa–11, in turn, sets out
 the rules governing petitions for compensation.” Id.
     The Vaccine Act, 42 U.S.C. § 300aa–11(c)(1)(B)(i), de-
 limits the categories of persons who may pursue a claim
 under it. Pursuant to the relevant provision, the person
 seeking compensation under the Act must show that he or
 she:
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 10                                     DUPUCH-CARRON     v. HHS



      (I) received the vaccine in the United States or in
      its trust territories,
      (II) received the vaccine outside the United States
      or a trust territory and at the time of the vaccina-
      tion such person was a citizen of the United States
      serving abroad as a member of the Armed Forces
      or otherwise as an employee of the United States
      or a dependent of such a citizen, or
      (III) received the vaccine outside the United States
      or a trust territory and the vaccine was manufac-
      tured by a vaccine manufacturer located in the
      United States and such person returned to the
      United States not later than 6 months after the
      date of the vaccination . . .
 42 U.S.C. § 300aa–11(c)(1)(B)(i).
     Appellants do not claim that either 42 U.S.C. § 300aa–
 11(c)(1)(B)(i)(I) or § 300aa–11(c)(1)(B)(i)(II) is applicable to
 this case. Therefore, the question before the court, as it
 was before the Claims Court and Special Master, is
 whether 42 U.S.C. § 300aa–11(c)(1)(B)(i)(III) allows Appel-
 lants, under the specific facts of this case, to apply for com-
 pensation under the Vaccine Act.
     Section 300aa–11(c)(1)(B)(i)(III) limits compensation
 under the Vaccine Act to (1) persons who (2) returned to
 the United States not later than 6 months after the date of
 the vaccination. Accordingly, we address whether: (1) A.R.
 D-C. was a “person” who had previously been in the United
 States in order for any subsequent travel there to consti-
 tute a “return”; and (2) A.R. D-C. “returned to the United
 States” within 6 months after the date of his vaccinations.
      I.   A.R. D-C. Was Not a “Person” Who Had Pre-
           viously Been to the United States
     The Claims Court found that “[t]he Vaccine Act consid-
 ers a child whose mother receives a vaccine while the child
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 DUPUCH-CARRON   v. HHS                                    11



 is in utero to be a ‘person,’” Dupuch-Carron, 144 Fed. Cl. at
 664 n.12, and therefore assumed without deciding, for the
 purposes of its analysis, that A.R. D-C. was a “person” un-
 der the relevant portions of the Vaccine Act, with a prior
 presence in the United States. We review the Claims
 Court’s decision de novo and find, for the reasons discussed
 below, that it misinterpreted the relevant language of the
 Vaccine Act and thus impermissibly assumed that a child
 in utero is a “person” under 42 U.S.C. § 300aa–
 11(c)(1)(B)(i)(III).
      It is undisputed that A.R. D-C. was born in The Baha-
 mas, resided in The Bahamas uninterrupted for his first
 six months of life, received the vaccinations at issue in The
 Bahamas, and did not enter the United States as a live
 born child until nearly three weeks after vaccination for
 the purpose of medical treatment. Nevertheless, a “person”
 who receives a vaccination outside of the United States is
 eligible to seek compensation through the Vaccine Act un-
 der Section 300aa–11(c)(1)(B)(i)(III) if he “returned to the
 United States” not later than six months after the date of
 vaccination. See 42 U.S.C. § 300aa–11(c)(1)(B)(i)(III). Ap-
 pellants concede that “[i]mplicit in the word ‘returned’ is a
 requirement that the person had been present in the
 United States at some time before the vaccination.” Appel-
 lants’ Br. 43 (italics added). Thus, in order to show that
 A.R. D-C. “returned to the United States,” Appellants must
 first show that their child, A.R. D-C., was a “person [that]
 had been present in the United States” at some time before
 the vaccination. According to Appellants, A.R. D-C.’s prior
 presence in the United States in utero satisfies the relevant
 statute.
     The definition of “person” and “child” applicable to “any
 Act of Congress,” including the Vaccine Act, is “every infant
 member of the species homo sapiens who is born alive at
 any stage of development.” 1 U.S.C. § 8(a). Though they
 acknowledge the definition’s applicability, Appellants
 point out that 1 U.S.C. § 8(c) states, “[n]othing in this
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 12                                    DUPUCH-CARRON    v. HHS



 section shall be construed to affirm, deny, expand, or con-
 tract any legal status or legal right applicable to any mem-
 ber of the species homo sapiens at any point prior to being
 ‘born alive.’” See Oral Arg. at 28:33–30:04, http://oralargu-
 ments.cafc.uscourts.gov/default.aspx?fl=20-1137.mp3.
 And, based on the text of the Vaccine Act in view of cases
 involving transplacental exposure to a vaccine, and deci-
 sions interpreting the Social Security Act, Appellants ar-
 gue that an unborn fetus is a “person” having an
 independent and legally significant presence under the
 Vaccine Act that cannot be denied or contracted by 1 U.S.C.
 § 8(a). Id. We disagree.
      Appellants first allege that “[t]wo decisions from the
 Court of Federal Claims and a third from a special master
 have held that a child in utero is a ‘person’ for the purposes
 of the Vaccine Act.” Appellants’ Br. 46–47. In Rooks v.
 Sec’y of Dep’t of Health & Hum. Servs., Melton v. Sec’y of
 Dep’t of Health & Hum. Servs., and Burch v. Sec’y of Dep’t
 of Health & Hum. Servs.—the opinions cited by Appel-
 lants—the Claims Court and Special Masters were pre-
 sented with the question of whether a child, whose mother
 received a vaccine while it was in utero, can be deemed to
 have also “received” the vaccine, such that they can peti-
 tion for compensation under the Vaccine Act once born. See
 Rooks v. Sec’y of Dep’t of Health & Hum. Servs., 35 Fed. Cl.
 1, 4 (1996) (stating “this case deals with the special mas-
 ter’s legal determination of the meaning of ‘received’ under
 the Vaccine Act” and finding “that the potential to ‘receive’
 a vaccine while in utero exists”); Burch v. Sec’y of Dep’t of
 Health & Hum. Servs., No. 99-946V, 2010 WL 1676767
 (Fed. Cl. Spec. Mstr. Apr. 9, 2010); Melton v. Sec’y of Dep’t
 of Health & Hum. Servs., No. 01-105V, 2002 WL 229781
 (Fed. Cl. Spec. Mstr. Jan. 25, 2002). These cases do not
 state or imply, however, that those in utero are themselves
 “persons” that have a separate legal presence while travel-
 ing abroad for purposes of determining eligibility to seek
 compensation through the Vaccine Act.
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 DUPUCH-CARRON   v. HHS                                     13



      Appellants nevertheless allege that the 21st Century
 Cures Act’s (the “Cures Act”) amendment to the Vaccine
 Act, 1 which reflects those earlier decisions, “recognized and
 ratified the conclusion that a child in utero is a person for
 the purposes of the Vaccine Act.” Appellants’ Br. 51. First,
 the Cures Act’s amendment to the Vaccine Act—42 U.S.C.
 § 300aa–11(f)—did not amend the subsection concerning
 extraterritorial application of the Vaccine Act at issue here.
 Second, rather than make explicit the principle that a child
 in utero is a “person” for all purposes of the Vaccine Act,
 the statute makes clear that those whose mother received
 a vaccine while they were in utero do not have a cognizable
 claim under the Vaccine Act until they become a “person”—
 i.e., “a member of the species homo sapiens who is born
 alive at any stage of development.” See 42 U.S.C. § 300aa–
 11(f)(1); 1 U.S.C. § 8(a).
     The amendment, which addresses “Maternal immun-
 ization,” states:
     (1) In general
     Notwithstanding any other provision of law, for
     purposes of this part, both a woman who received a
     covered vaccine while pregnant and any child who
     was in utero at the time such woman received the
     vaccine shall be considered persons to whom the
     covered vaccine was administered and persons who
     received the covered vaccine.




     1   In 2016, the 21st Century Cures Act, Pub. L. No.
 114-255, 130 Stat. 1033, 1152 (Dec. 13, 2016), amended the
 Vaccine Act to provide that “[a] covered vaccine adminis-
 tered to a pregnant woman shall constitute more than one
 administration, one to the mother and one to each child . . .
 who was in utero at the time such woman was administered
 the vaccine.”
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 14                                     DUPUCH-CARRON   v. HHS



      (2) Definition
      As used in this subsection, the term “child” shall
      have the meaning given that term by subsections
      (a) and (b) of section 8 of Title 1, except that, for
      purposes of this subsection, such section 8 shall be
      applied as if the term “include” in subsection (a) of
      such section were replaced with the term “mean”.
 42 U.S.C. § 300aa–11(f) (emphasis added).
     Appellants and the Claims Court have both interpreted
 42 U.S.C. § 300aa–11(f)(1) as suggesting that a “child in
 utero” is a “person.” See Dupuch-Carron, 144 Fed. Cl. at
 664 n.12; Appellants’ Reply Br. 16. They are mistaken.
 The first paragraph states that both a woman who received
 a covered vaccine and a child, who was previously in utero
 at the time such woman received the vaccine, are “persons”
 deemed to have received the vaccine. 42 U.S.C. § 300aa–
 11(f)(1). The second paragraph states that the term “child”
 shall retain the meaning given that term by subsections (a)
 and (b) of section 8 of Title 1. Id. As mentioned above,
 1 U.S.C. § 8(a) states that “the words ‘person’, ‘human be-
 ing’, ‘child’, and ‘individual’, shall [mean] 2 every infant
 member of the species homo sapiens who is born alive 3 at




      2   In accordance with 42 U.S.C. § 300aa–11(f)(2), “the
 term ‘include’ in subsection (a) of” 1 U.S.C.A. § 8 has been
 “replaced with the term ‘mean.’”
      3   “[T]he term ‘born alive’, with respect to a member
 of the species homo sapiens, means the complete expulsion
 or extraction from his or her mother of that member, at any
 stage of development, who after such expulsion or extrac-
 tion breathes or has a beating heart, pulsation of the um-
 bilical cord, or definite movement of voluntary muscles,
 regardless of whether the umbilical cord has been cut, and
 regardless of whether the expulsion or extraction occurs as
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 DUPUCH-CARRON    v. HHS                                     15



 any stage of development.” 1 U.S.C. § 8(a). Thus, unlike
 other federal legislation in which Congress has explicitly
 bestowed special legal status upon children in utero, 4 42
 U.S.C. § 300aa–11(f) makes clear that the words “person”
 or “child,” included therein, retain their 1 U.S.C. § 8(a) def-
 inition. Accordingly, only once it is born may a child whose
 mother received a vaccine while they were in utero be con-
 sidered a “person” that has received the vaccine.
     Appellants also argue that decisions addressing the
 status of a child in utero in the context of surviving child
 benefits under the Social Security Act support their claim
 that A.R. D-C. was present in the United States before
 birth under the Vaccine Act. The cases cited by Appellants
 dealt with the issue of whether an applicant met the stat-
 utory requirements to be considered a “child” of a deceased
 wage earner for purposes of child support under the Social
 Security Act. See, e.g., Wagner v. Finch, 413 F.2d 267, 268–
 69 (5th Cir. 1969) (“The crucial issue remaining is whether
 or not this child, conceived outside of marriage and born
 after her father’s death, may nevertheless be deemed to be
 her father’s child under 42 U.S.C.A. 416(h)(3) of the Act.”).
 Section 8(a) of Title 1 limits the term “child,” as used in all



 a result of natural or induced labor, cesarean section, or
 induced abortion.” 1 U.S.C. § 8(b).
     4   For example, the Unborn Victims of Violence Act,
 18 U.S.C. § 1841, applies to injurious acts committed
 against a child in utero, but, unlike 42 U.S.C. § 300aa–
 11(f), specifically includes its own definition of “unborn
 child” that does not incorporate or refer to the “born alive”
 language from 1 U.S.C. § 8’s definition of “person” or “child”
 applicable to the Vaccine Act. See 18 U.S.C. § 1841(d)
 (2018) (“As used in this section, the term ‘unborn child’
 means a child in utero, and the term ‘child in utero’ . . .
 means a member of the species homo sapiens, at any stage
 of development, who is carried in the womb.”).
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 16                                    DUPUCH-CARRON   v. HHS



 acts of Congress, to those born alive. As Appellants previ-
 ously pointed out, however, this definition should not be
 construed to affirm, deny, expand, or contract any legal sta-
 tus or legal right applicable to any member of the species
 homo sapiens at any point prior to being “born alive.” 1
 U.S.C. § 8(c). As such, it cannot abridge any legal status
 afforded to unborn children under the Social Security Act,
 which has its own, separate, definition of “child” that does
 not include any requirement that they be “born alive.” See
 42 U.S.C. § 416(e). As discussed above, no similar legal
 right applicable to fetuses exists under the Vaccine Act.
 For at least these reasons, we agree with the Government
 that the Social Security Act and its implementing regula-
 tions are entirely distinct and separate from the Vaccine
 Act, and the interpretation of the Social Security Act’s lan-
 guage has no bearing on the language included in the Vac-
 cine Act.
      For the foregoing reasons, we hold that 1 U.S.C. § 8’s
 definition of “person” applies to that term as it is used in
 the Vaccine Act. Accordingly, we find that the Claims
 Court’s assumption that A.R. D-C. was a “person” with a
 prior presence in the United States was legally improper,
 and agree with the Special Master that A.R. D-C., while
 living and breathing outside of his mother’s body, was
 never present in the United States before his vaccinations
 and, thus, that his entrance to the United States cannot be
 construed as a “return.”
      II.   A.R. D-C. Had Not “Returned to the United
            States” Within the Meaning of the Vaccine
            Act
     Even if A.R. D-C. could be recognized as a “person” who
 was present in the United States before vaccination, and
 the Claims Court’s assumption was correct, the parties still
 disagree as to whether A.R. D-C. “returned to the United
 States” within six months of his vaccinations. § 300aa–
 11(c)(1)(B)(i)(III). The Claims Court denied Appellants’
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 DUPUCH-CARRON   v. HHS                                     17



 Motion for Review after finding “nothing to suggest that
 Congress meant to cover” those, like A.R. D-C., who only
 travel to “the United States for the purpose of seeking med-
 ical treatment when it used the word ‘return’ in the Vaccine
 Act.” Dupuch-Carron, 144 Fed. Cl. at 666. For the reasons
 discussed herein, we agree.
      The scope of the Vaccine Act does not, generally, extend
 beyond the borders of the United States. The Act itself re-
 fers to a “national” vaccine injury compensation program,
 and 42 U.S.C. § 300aa–11(c)(1)(B)(i)(I) broadly provides
 that anyone, including temporary visitors, who received a
 scheduled vaccine “in the United States or in its trust ter-
 ritories,” are eligible to seek compensation under the Act.
 The legislative history, moreover, does not address any
 concern for the continued supply of vaccines outside the
 United States or the compensation of non-residents of the
 United States, save for two exceptions. See McGowan,
 31 Fed. Cl. at 739. First, families of citizens who were em-
 ployees of the United States or members of the armed
 forces can petition for compensation under the Vaccine Act,
 even if the vaccine was received outside the United States
 or its territories. 42 U.S.C. § 300aa–11(c)(1)(B)(i)(II). Sec-
 ond, as noted above, anyone who received a vaccine made
 in the United States and who subsequently returned to the
 United States not later than six months after the vaccina-
 tion can petition for compensation under the Vaccine Act.
 42 U.S.C. § 300aa–11(c)(1)(B)(i)(III). These exceptions, by
 their wording, apply only to those who previously had some
 degree of presence in the United States prior to leaving
 and, in the case of § 300aa–11(c)(1)(B)(i)(III), “returned.”
     On appeal, as below, Appellants argue that both the
 Special Master and the Claims Court inappropriately in-
 terpreted the word “return” because “[t]he relevant lan-
 guage of the Vaccine Act is not ambiguous,” and the Special
 Master and Claims Court’s interpretations of “return” do
 not comport with the “ordinary meaning” of the word (i.e.
 “to come or go back to”). Dupuch-Carron, 144 Fed. Cl. at
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 18                                   DUPUCH-CARRON   v. HHS



 664; see also, e.g., Appellants’ Br. 18. Appellants contend
 that failing to apply the “ordinary meaning” of the word is
 inconsistent with the Supreme Court’s unanimous holding
 in Sebelius v. Cloer, which stated that “[u]nless otherwise
 defined, statutory terms are generally interpreted in ac-
 cordance with their ordinary meaning.” 569 U.S. 369, 376–
 77 (2013) (quoting BP Am. Prod. Co. v. Burton, 549 U.S. 84,
 91 (2006)). 5 Therefore, Appellants argue, under the plain
 meaning of the unambiguously used definition of “return,”
 they should be allowed to maintain their claim.
     Before the Claims Court, the Government did not dis-
 pute Appellants’ understanding of the “plain meaning” of
 “return,” but instead argued that because such an interpre-
 tation, under the Vaccine Act, would lead to “absurd re-
 sults,” the plain meaning rule should not apply and that
 the court must look to the context surrounding the phrase
 “returned to the United States.” According to the Govern-
 ment, as construed in McGowan, 31 Fed. Cl. at 740, 6



      5   On June 17, 2020, counsel for Appellants also sub-
 mitted a Citation of Supplemental Authority pursuant to
 Fed. R. App. P. 28(j), which cited, as support, the Supreme
 Court’s decision in Bostock v. Clayton County, 590 U.S. ___,
 140 S. Ct. 1731 (2020).
      6   The decisive issue in McGowan was the meaning of
 the word “return” in the relevant provision of the Vaccine
 Act. 31 Fed. Cl. at 738. The petitioner, who was born in
 the United States, received two vaccinations in Canada,
 where she resided and where her father was receiving med-
 ical training. Id. at 736. Within six months of her August
 20, 1965 vaccination, the petitioner entered the United
 States to visit her maternal grandparents. Id. On October
 1, 1990, the petitioner filed an application for compensa-
 tion under the Vaccine Act, arguing that she suffered en-
 cephalopathy as a result of her August 20, 1965 measles
 vaccine. Id. As framed by the Claims Court, the question
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 DUPUCH-CARRON    v. HHS                                     19



 “return” does not mean a temporary visit, but an arrival
 “with the intention to remain permanently from that point
 on.” Dupuch-Carron, 144 Fed. Cl. at 664.
     The Claims Court declined to adopt the reading of the
 statute advanced by the Government, in reliance on
 McGowan, that “return” must include an intent to estab-
 lish permanent residence in the United States. Nonethe-
 less, the Claims Court found that “the term ‘return’ must
 be limited by its context to avoid absurd results,” and held
 that more is needed than the transient presence allowable
 under Appellants’ overbroad reading of the word “return.”
 Id. at 666. On appeal, the Government, dropping its reli-
 ance on McGowan, argues that the Claims Court is correct.
 We agree.
      Applying the broadest meaning to the phrase “returned
 to the United States,” as argued by Appellants, invites ab-
 surd results inconsistent with the statute’s context. Take,
 for example, a French citizen, resident in France, who flew
 from Paris, France to Tokyo, Japan with a one-day stopover
 in New York, who then returned to France and received a
 vaccination. The fact that within six months of the vac-
 cination, the French citizen again stopped for a day in New
 York on his way to Tokyo, Japan would permit him to sub-
 mit a Vaccine Act claim under Appellants’ broad reading of
 the statute. Both the Supreme Court and this court, how-
 ever, have repeatedly held over the years that “[i]f a literal
 construction of the words of a statute be absurd, the act
 must be so construed as to avoid the absurdity.” Holy


 “regarding the definition of ‘return’ is whether there is a
 sense of permanence inherent in the word.” Id. The Claims
 Court found that simple dictionary definitions of “return”
 “shed little light on the issue,” id., and, after canvassing
 the legislative history of the Vaccine Act, held “[a]n injured
 person who does not intend to return to live in the United
 States should not be able to petition for a claim,” id. at 739.
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 20                                    DUPUCH-CARRON    v. HHS



 Trinity Church v. United States, 143 U.S. 457, 460 (1892);
 see also Cloer, 569 U.S. at 377 n.4 (avoiding statutory in-
 terpretation that would produce an “absurd result”); Mila-
 vetz, Gallop & Milavetz, P.A. v. United States, 559 U.S. 229,
 252 (2010) (declining to “adopt a view of the statute that . .
 . would produce an absurd result”); Pub. Citizen v. U.S.
 Dep’t of Justice, 491 U.S. 440, 454 (1989) (“Where the lit-
 eral reading of a statutory term would ‘compel an odd re-
 sult,’ we must search for other evidence of congressional
 intent to lend the term its proper scope.” (quoting Green v.
 Bock Laundry Mach. Co., 490 U.S. 504, 509 (1989))); Hag-
 gar Co. v. Helvering, 308 U.S. 389, 394 (1940) (explaining
 that a reading of a statute that “would lead to absurd re-
 sults is to be avoided when [it] can be given a reasonable
 application consistent with [its] words and with the legis-
 lative purpose”); Pitsker v. Office of Pers. Mgmt., 234 F.3d
 1378, 1383 (Fed. Cir. 2000) (finding Office of Personnel
 Management’s statutory interpretation violated “the canon
 of statutory construction that an interpretation that causes
 absurd results is to be avoided if at all possible”); Timex
 V.I., Inc. v. United States, 157 F.3d 879, 887 (Fed. Cir.
 1998) (finding that where “statutory construction frus-
 trates Congress’s intent, encourages undesirable behavior,
 and produces absurd results,” it should “be avoided, not
 rubber-stamped”).
      When construing a statutory term or phrase to avoid
 an absurd result, or when the term or phrase is “ambigu-
 ous,” it “must be read in [its] context and with a view to
 [its] place in the overall statutory scheme.” Colonial Press
 Int’l, Inc. v. United States, 788 F.3d 1350, 1357 (Fed. Cir.
 2015) (quoting Davis v. Mich. Dep’t of Treasury, 489 U.S.
 803, 809 (1989)); see also Wassenaar v. Office of Pers.
 Mgmt., 21 F.3d 1090, 1092 (Fed. Cir. 1994) (stating that
 “[a] reading of [a statute] which would lead to absurd re-
 sults is to be avoided when [it] can be given a reasonable
 application consistent with [its] words and legislative pur-
 pose”). Indeed, with respect to the language at issue in this
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 DUPUCH-CARRON   v. HHS                                     21



 case, Appellants’ counsel acknowledged at oral argument
 that “the factual context of the person’s prior presence in
 the United States and subsequent return is relevant.” See
 Oral        Arg.      at       4:25–43,       http://oralargu-
 ments.cafc.uscourts.gov/default.aspx?fl=20-1137.mp3.
 (“It’s necessary to understand whether or not there was a
 return.”); see also id. at 5:53–6:35 (counsel for Appellants
 equating “return” with “go back” and acknowledging that
 “go back” can be ambiguous). Accordingly, the phrase “re-
 turned to the United States” must be read in its context
 and with a view to its place in the overall statutory scheme.
     The phrase “returned to the United States,” itself, is
 not addressed in any of the legislative history concerning
 the Vaccine Act. Thus, the purpose of Congress’ enactment
 of the Act must be understood to guide the court’s under-
 standing of the phrase. See Amendola v. Sec’y of Dep’t of
 Health & Hum. Servs., 989 F.2d 1180, 1182 (Fed. Cir.
 1993). 7 In Amendola, this court found that “the motivating
 factor behind enactment of the [Vaccine Act] was the desire
 to protect the vaccine supply by shielding manufacturers
 from exposure to liability resulting from the small but nev-
 ertheless statistically significant incidence of unavoidable
 injury or death from widespread use of the vaccine.” Id. at
 1186.
     While protection of the United States vaccine supply
 was the motivating factor, however, the Vaccine Act’s lim-
 ited legislative history makes clear that Congress had two



     7   In Amendola, this court found that because the
 Vaccine Compensation Act is a “complex piece of legisla-
 tion” incorporating its “legislative purpose,” “the meaning
 of any particular phrase or provision,” included therein,
 “cannot be securely known simply by taking the words out
 of context and treating them as self-evident.”
 Amendola, 989 F.2d at 1182.
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 22                                     DUPUCH-CARRON    v. HHS



 goals in its enactment. As the Claims Court correctly noted
 in McGowan, and is not disputed by the parties here:
      The first goal was to “offer fair compensation to vic-
      tims” injured in connection with childhood vaccina-
      tion programs. H.R. 1780, 99th Cong., 1st Sess.
      (1985); S. 827, 99th Cong., 1st Sess. (1985); H.R.
      Rep. No. 908, 99th Cong., 2d Sess., pt. 1, at 7
      (1986), U.S. Code Cong. & Admin. News 1986, pp.
      6287, 6348. The second was to insure the “contin-
      ued supply of vaccines that are vital to the public
      health.” H.R. 1780; S. 827; H.R. Rep. No. 908. This
      second goal is linked only to the supply of vaccines
      in the United States.
 Id. at 738–39.
     Interpreting the Vaccine Act in view of these goals, the
 McGowan court held that 42 U.S.C. § 300aa–
 11(c)(1)(B)(i)(III) applies “only to those who previously had
 lived in the United States,” id. at 739, and “return[ed] to
 the United States within six months of the vaccination
 date, with the intention to remain permanently from that
 point on,” id. at 740.
     Relying on McGowan, the Special Master in this case
 dismissed Appellants’ claim after finding that there was no
 evidence that A.R. D-C. would have established a perma-
 nent presence in this country. As the Claims Court found,
 however, upon review of the Special Master’s decision,
 while McGowan’s permanent residence requirement was
 too restrictive, more is required of a “return” than a tempo-
 rary visit for medical treatment. We agree with the Claims
 Court that the permanent residence requirement is overly
 restrictive. We nonetheless agree with the McGowan court
 that some residence is required both before leaving and
 upon “return[] to the United States” under 42 U.S.C. §
 300aa–11(c)(1)(B)(i)(III).
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 DUPUCH-CARRON   v. HHS                                    23



     One of the goals of the Vaccine Act was to provide com-
 pensation to those injured in connection with childhood
 vaccination programs. Congress specifically noted that
 vaccination programs are facilitated by state and local dis-
 tribution of vaccines, and at the time of the Act’s passage,
 state laws mandated that “virtually all” children be vac-
 cinated “as a condition for entering school.” H.R. Rep. No.
 99-908, 99th Cong., 2d Sess., pt. 1, at 4–7 (1986). It is
 doubtful that the United States or any state or local gov-
 ernment would have authority to impose vaccination re-
 quirements outside of its own borders (with the exception
 of persons applying to immigrate to the United States). Al-
 lowing those currently living outside the United States,
 who have not previously lived in the United States, and
 who were not injured in connection with United States vac-
 cination programs, to receive compensation under the Vac-
 cine Act would not serve the legislative goal of providing
 compensation to those injured in connection with those
 childhood vaccination programs.
     With respect to Congress’s other goal of stabilizing the
 vaccine market, Congress undoubtedly intended to reduce
 liability for vaccine manufacturers by limiting civil actions
 against them from those covered by the Vaccine Act. See
 42 U.S.C. § 300aa–11(a)(2)-(3); see also 42 U.S.C. § 300aa–
 11(a)(9) (“This subsection applies only to a person who has
 sustained a vaccine-related injury or death and who is
 qualified to file a petition for compensation under the Pro-
 gram.”). Congress, through the Vaccine Act, has explicitly
 mandated that “[i]f a civil action which is barred under sub-
 paragraph (A) is filed in a State or Federal court, the court
 shall dismiss the action.” 42 U.S.C. § 300aa–11(a)(2)(B).
 The Vaccine Act, however, does not, nor can it, prevent civil
 actions against vaccine manufacturers in other countries.
 Thus, allowing residents of other countries, who have not
 previously resided in the United States and do not plan on
 residing in the United States, and were not injured in con-
 nection with United States vaccination programs, to
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 24                                    DUPUCH-CARRON    v. HHS



 receive compensation under the Vaccine Act would not
 serve the goal of immunizing United States vaccine manu-
 facturers from suit; those foreign residents could sue in for-
 eign courts not similarly prevented from hearing these
 cases. 8
     If Congress wished to provide such broad immunity as
 argued by Appellants, it is hard to see why Congress disal-
 lowed claims by persons who never entered the United
 States or entered the United States at some point before
 vaccination but did not return again within six months.
 We surmise that Congress, in enacting this section, in-
 tended to provide protection for persons who (1) previously
 resided in the United States, where they were subject to
 United States vaccination programs, (2) were temporarily
 away from the United States when they received the vac-
 cination, and (3) “returned to the United States” within six
 months with the intention of resuming residence therein.
     We hold that because A.R. D-C.’s entry into the United
 States to receive medical treatment does not fall within the
 more narrowly construed meaning of “returned to the
 United States” that the Vaccine Act’s broader context




      8  With regard to pending civil actions, the Vaccine
 Act manifests a legislative intent to prevent double com-
 pensation. See 42 U.S.C.A. § 300aa–11(a)(7) (providing
 that a damage award, either by settlement or court action,
 precludes     a    Vaccine     Act     petition); §  300aa–
 11(c)(1)(E) (providing that petitioner must aver in the peti-
 tion that he has not previously collected a damage award
 either by settlement or court action). We agree with the
 McGowan court that logic dictates that Congress would not
 allow the opportunity for double compensation when the
 petitioner could be compensated outside of the United
 States. See McGowan, 31 Fed. Cl. at 740 n.3.
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 DUPUCH-CARRON    v. HHS                                     25



 demands, Appellants have not satisfied the requirements
 of 42 U.S.C. § 300aa–11(c)(1)(B)(i)(III).
                           CONCLUSION
     Appellants are not eligible to seek compensation from
 the Vaccine Program under 42 U.S.C. § 300aa–
 11(c)(1)(B)(i)(III). First, A.R. D-C., while living and breath-
 ing outside of his mother’s body, was never present in the
 United States before his vaccinations such that his en-
 trance to the United States for medical treatment could be
 construed as a “return.” Second, even if A.R. D-C. was a
 “person” with a prior presence in the United States as a
 result of his in utero travel, he never resided in the United
 States nor intended to upon his “return.” Thus, we hold
 that A.R. D-C. did not “return[] to the United States”
 within the meaning of the Vaccine Act. Accordingly, the
 Claims Court’s Order denying Appellants’ Motion for Re-
 view is affirmed.
                           AFFIRMED
                             COSTS
     The parties shall bear their own costs.
