      In the United States Court of Federal Claims
                                   No. 12-630V
                        (Filed under seal December 7, 2016)
                           (Reissued December 21, 2016)

* * * * * * * * * * * * * * * * * *
                                  *
                                  *
LAURA DAY and TODD DAY, as *                  Vaccine Act, 42 U.S.C. §§ 300aa-12,
guardians of the person and       *           300aa-15, 300aa-21; interim damages
estate of B.K.D.,                 *           award upheld; cap on actual pain and
                                  *           suffering; election to accept damages;
                  Petitioners,    *           extreme financial hardship;
                                  *           Dictionary Act, 1 U.S.C. § 1.
      v.                          *
                                  *
SECRETARY OF HEALTH &             *
HUMAN SERVICES,                   *
                                  *
                  Respondent,     *
                                  *
* * * * * * * * * * * * * * * * * *

     Jennifer Anne Gore Maglio, Maglio Christopher & Toale, PA, with whom was
Anne Carrión Toale, both of Sarasota, Fla., for petitioners.

      Gordon Shemin, Trial Attorney, Torts Branch, Civil Division, Department of
Justice, with whom were Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, Rupa Bhattacharyya, Director, Catharine E. Reeves, Acting Deputy
Director, and Voris E. Johnson, Jr., Assistant Director, all of Washington, D.C., for
respondent.

                                      ORDER

WOLSKI, Judge.

      In this matter, it is not disputed that the petitioners are entitled to
compensation due to the vaccine injury suffered by their daughter, B.K.D. Nor does
the Secretary of Health and Human Services challenge the amount of compensation
awarded by the Chief Special Master in the decision under review, the $250,000
maximum for the pain and suffering already inflicted upon B.K.D. The question
presented in the Secretary’s motion for review is one solely of procedure, not
substance --- namely, whether the National Childhood Vaccine Injury Act of 1986
(Vaccine Act), 42 U.S.C. §§ 300aa-1–300aa-34, allows for an interim award of
compensation to be paid before a special master has determined the full extent of
compensation owed to petitioners.

       On November 13, 2015, the Chief Special Master issued a ruling on
entitlement in this vaccine case, finding that human papillomavirus and influenza
vaccinations caused B.K.D. to develop the autoimmune disorder neuromyelitis
optica. Day ex rel. B.K.D. v. Sec’y of Health & Human Servs., No. 12-630V, 2015 WL
8028393, at *14, *17–18, *21–23 (Fed. Cl. Sp. Mstr. Nov. 13, 2015). On January 7,
2016, petitioners filed a motion seeking interim damages in light of their extreme
financial hardship and B.K.D.’s urgent need for a wheelchair accessible van and
housing modifications. On May 31, 2016, determining that special masters possess
the discretionary authority to award interim damages, the Chief Special Master
awarded petitioners $250,000.00 in interim damages for B.K.D.’s past pain and
suffering. 1 Decision Awarding Interim Damages at 2, 6–9 (Fed. Cl. Spec. Mstr. May
31, 2016) (Decision). The Chief Special Master based her decision on the plain
language of the Vaccine Act and analysis from a decision of another special master,
as well as on one binding and two nonprecedential Federal Circuit opinions. 2 She
explained that she did “not contemplate that interim damages would be routinely or
even frequently awarded, but in this case, petitioners have made a persuasive case
that there is extreme hardship and that accordingly, the purpose of the Vaccine Act
is better fulfilled by making the interim award.” Id. at 7.

       Respondent filed a motion for our court to review the decision awarding
interim damages, arguing that interim damages awards are not authorized by the
Vaccine Act. Resp’t’s Mot. for Review at 2 (Resp’t’s Mot.). The Secretary contends
that the Vaccine Act does not contain language expressly providing for an interim
damages award, and that the act is best understood as authorizing a single
damages decision. Id. at 4–8. Respondent further argued that the rationale
supporting interim attorneys’ fees does not apply to interim damages, id. at 10–11;
that the nonprecedential orders allowing partial judgments have no bearing on


1 Although the parties filed status reports agreeing that B.K.D.’s lost wages totaled
$931,359.63, the Chief Special Master declined to include this amount in the
interim award, since a change in circumstances prior to final judgment would affect
such an award. Decision at 8 n.10 (citing, inter alia, Tembenis v. Sec’y of Health &
Human Servs., 733 F.3d 1190, 1195 (Fed. Cir. 2013)). The remainder of damages
could not be calculated at the time the interim damages decision issued.

2 Decision at 5–6 (citing Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343,
1352 (Fed. Cir. 2008); Tembenis v. Sec’y of Health & Human Servs., No. 2103-5029,
Order at 5–6 (Fed. Cir. May 16, 2013); Heinzelman v. Sec’y of Health & Human
Servs., No. 2011-5127, Order at 2 (Fed. Cir. June 13, 2012); Lerwick v. Sec’y of
Health & Human Servs., No. 06-847V, 2014 WL 1897656, at *3, 7 (Fed. Cl. Sp.
Mstr. Apr. 16, 2014)).
                                        –2–
whether special masters may award interim damages, id. at 11–13; and that
interim damages present procedural difficulties, id. at 14–17.

        The plain language of the Vaccine Act states that “[a] special master to whom
a petition has been assigned shall issue a decision on such petition with respect to
whether compensation is to be provided under the Program and the amount of such
compensation.” 42 U.S.C. § 300aa-12(d)(3)(A) (2012). The decision under review is
without question such a decision, as compensation under the Vaccine Act includes,
“[f]or actual and projected pain and suffering and emotional distress from the
vaccine-related injury, an award not to exceed $250,000.” Id. § 300aa-15(a)(4)
(2012). But the Vaccine Act itself is silent as to whether special masters are limited
to issuing just one such decision. 3

       The use of the indefinite, singular article “a,” in the formulation “a decision,”
hardly settles the matter. The Dictionary Act, which courts “must consult” when
construing federal statutes, Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751,
2768 (2014), provides that, “[i]n determining the meaning of any Act of Congress,
unless the context indicates otherwise—words importing the singular include and
apply to several persons, parties, or things . . . .” 1 U.S.C § 1 (2012). Respondent
argues that, considering the Vaccine Act’s overall context and structure, other
language suggests that a single damages decision was intended by Congress.
Resp’t’s Mot. at 5–7. For instance, the sentence authorizing the issuance of “a
decision” refers to “the amount of such compensation” in the singular, and the same
paragraph twice mentions “[t]he decision of the special master.” 42 U.S.C. § 300aa-
12(d)(3)(A). A subsequent subsection describes the procedures for our court’s review
of “the special master’s decision.” Id. § 300aa-12(e)(1).

       The mere use of terms in the singular, of course, hardly provides the context
for escaping the ambit of the Dictionary Act rule regarding the use of the singular.
And the initial description of “a decision” to be issued shows that the Vaccine Act is
not a statute in which “[t]he consistent use of the definite article in reference to
[something] indicates that there is generally only one . . . .” Rumsfeld v. Padilla,
542 U.S. 426, 434 (2004). But the biggest problem with the Secretary’s reading of
the Vaccine Act is that it rests on the interpretation of certain words in the singular
that cannot be squared with Federal Circuit precedent.

       For purposes of our Court’s jurisdiction to review rulings of a special master,
the Federal Circuit has held that a special master’s decision on a request for interim
attorneys’ fees “is a decision on compensation” under subsections 12(d)(3)(A) and
12(e) of the Vaccine Act. Shaw v. Sec’y of Health & Human Servs., 609 F.3d 1372,
1375–76 (Fed. Cir. 2010) (citing 42 U.S.C. § 300aa-12(d)(3)(A), (e)). In Shaw, the


3 Congress has, in at least one statute, expressly authorized payment of interim
damages. See 33 U.S.C. § 2705(a).
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Federal Circuit recognized that decisions on attorneys’ fees were reviewable
“independent from a decision on the merits,” and specifically allowed review of an
interim fee denial prior to the issuance of a ruling on a petitioner’s entitlement to
compensatory damages. Id. at 1375–78. In such cases, no one questions the
authority of our Court to review the subsequent decision regarding compensatory
damages, and thus “the decision” reviewable by our Court under subsections
12(d)(3)(A) and 12(e) cannot be limited to just one.

       The Secretary argues that the decisions concerning attorneys’ fees are
distinguishable, as the purpose of fees awards “is to ensure that vaccine-injury
claimants will have a readily available competent bar to prosecute their claims
under the Act,” Saunders v. Sec’y of Dep’t of Health & Human Servs., 25 F.3d 1031,
1035–36 (Fed. Cir. 1994), rather than to compensate for injuries, and the Federal
Circuit has found that the requirement that a petitioner elect to accept judgment,
see 42 U.S.C. §§ 300aa-15(f)(1), 300aa-21(a), did not apply to such an award.
Resp’t’s Mot. at 10–11 (citing Saunders, 25 F.3d at 1034–36). 4 But while this may
explain how the Federal Circuit came to allow multiple decisions to be reviewed
under the Vaccine Act, see Shaw, 609 F.3d at 1375, the important point is that it
does --- which is fatal to the Secretary’s argument that only one decision on
compensation may be reviewed.

       Moreover, the Court notes that when compensatory damages are awarded a
petitioner, the Vaccine Act mandates that attorneys’ fees and costs “shall also [be]
award[ed] as part of such compensation.” 42 U.S.C. § 300aa-15(e)(1) (emphasis
added). In those circumstances, an interim fee award allows one element of the
total amount of compensation awarded a petitioner to be received in advance of the
rest. The Vaccine Act does not contain any language that would prohibit the same
treatment from being extended to actual pain and suffering damages under 42
U.S.C. § 300aa-15(a)(4). That the subsection 21(a) election to receive compensation
would apply to any interim damages award is no reason to avoid such awards. The
Secretary raises the prospect that a petitioner could elect to accept an interim
damages award, but then elect to file a civil action for damages instead of accepting
the remainder of the award, causing procedural difficulties. Resp’t’s Mot. at 14–16.
But no such concern is present in this case, as petitioners have “disclaimed any
intention to reject any future awards of damages.” Decision at 2; see also Resp’t’s
Mot. at 14 n.4; Pet’rs’ Mem. in Resp. at 16. And since civil actions are limited to
$1,000 in damages unless a written election to file a civil action was filed after
judgment in our court, 42 U.S.C. § 300aa-11(2)(A)(i)(II), a simple expedient --- such


4 The Federal Circuit recognized that the term “compensation” had different
meanings in different portions of the Vaccine Act (and even in the same sentence,
see 42 U.S.C. § 300aa-15(e)(1)), and determined that, as used in the election
provisions, it referred only to compensatory damages. See Saunders, 25 F.3d at
1034–35.
                                         –4–
as a direction that the Clerk not file any such election once a petitioner has filed an
election to accept interim damages --- would prevent such strategic behavior from
succeeding. 5 Such a practice is consistent with the approach taken by the Federal
Circuit, albeit in nonprecedential orders, where an election to accept judgment
made before an appeal was decided, Tembenis v. Sec’y of Health & Human Servs.,
No. 2103-5029, Order at 5–6 (Fed. Cir. May 16, 2013), and motions for partial
summary affirmance of undisputed portions of damages awards, id. at 4;
Heinzelman v. Sec’y of Health & Human Servs., No. 2011-5127, Order at 2 (Fed. Cir.
June 13, 2012), were apparently treated as the requisite election.

       In limiting the interim damages award to the capped amount of pain and
suffering damages already incurred, the Chief Special Master avoided the potential
problem of “a change in the victim’s conditions or expenses,” McAllister v. Sec’y of
Health & Human Servs., 70 F.3d 1240, 1243 (Fed. Cir. 1995), and based the award
on damages that a “snapshot” later in time would not change, Tembenis v. Sec’y of
Health & Human Servs., 733 F.3d 1190, 1195 (Fed. Cir. 2013). Respondent has not
identified any background principle of law that would preclude an award of interim
damages in general, much less when the damages are fixed and undisputed. 6

       The Secretary’s final argument concerns a policy matter that is not
implicated by this case. Although respondent does not challenge the entitlement
ruling below, see Resp’t’s Mot. at 16 n.6, she worries that a future award of interim
damages would force her to decide whether to challenge an entitlement ruling
before the full damages exposure is known., id. at 16–17. In the oral argument on
this motion, petitioners countered that earlier appeals of underlying entitlement
rulings are in the best interests of all parties --- reasoning that when a ruling is
upheld, petitioners will receive awards earlier, and when overturned, both parties
and the court will save time and resources from unnecessary compensation
calculations. The Court merely notes that while the availability of interim damages


5 When no election is timely filed, an election to accept judgment is deemed to have
been made. 42 U.S.C. § 300aa-21(a). If necessary, the Vaccine Rules, App. B to the
Rules of the United States Court of Federal Claims (RCFC), could be amended to
ensure that an election to accept interim damages constitutes an election to accept
the final judgment. See 42 U.S.C. § 300aa-12(d)(2).

6 The RCFC 54(b) procedure allowing for final judgment to be entered on less than
all of the claims presented in an action might be taken to suggest that separate
legal theories based on different sets of facts must be present for a judgment to be
entered on interim damages. See Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 742–
43 (1976). This was not raised by the Secretary, and is in any event inconsistent
with the Federal Circuit’s holding that judicial review is available for a special
master’s decision to defer determining the full extent of interim attorneys’ fees
awardable. See Shaw, 609 F.3d at 1373, 1378.
                                         –5–
could accelerate decisions on both sides --- whether to elect to accept compensation
under 42 U.S.C. § 300aa-21(a), and whether to appeal the underlying entitlement
ruling under 42 U.S.C. § 300aa-12(e)(1) --- policy considerations are best addressed
to the policymaking branch of our government.

       The Court concludes that the Chief Special Master reasonably interpreted
the Vaccine Act to allow for an award of interim damages in this case. The decision
under review was a “decision . . . with respect to whether compensation is to be
provided under the Program and the amount of such compensation,” authorized by
the Vaccine Act, 42 U.S.C. § 300aa-12(d)(3)(A). Petitioners’ entitlement to $250,000
for the past pain and suffering of their daughter B.K.D. is not disputed.
Respondent took no position on the criteria employed by the Chief Special Master in
determining that an award of interim damages was appropriate, and thus that
matter was not before the Court. For the reasons stated above, respondent’s motion
for review is DENIED, and the Chief Special Master’s decision awarding interim
damages is SUSTAINED. The Clerk shall enter judgment awarding petitioners
interim compensation in accordance with that decision. If petitioners file an
election to receive this compensation under 42 U.S.C. § 300aa-21(a)(1), they will not
be permitted to file a subsequent election to file a civil action under that subsection.

IT IS SO ORDERED.


                                        s/ Victor J. Wolski
                                        VICTOR J. WOLSKI
                                        Judge




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