     In the United States Court of Federal Claims
                               No. 13-280V
                    (Originally filed: August 26, 2014)
                      (Reissued: December 7, 2015)
**********************

DAVID D. GRIFFIN,

                     Petitioner,
                                                 National Childhood
                                                 Vaccine Injury Act;
v.
                                                 Eligibility; Employee of
                                                 the United States.
SECRETARY OF HEALTH AND
HUMAN SERVICES,

                 Respondent.
**********************
    Lisa A. Roquemore, Irvine, CA, for plaintiff.

       Lara A. Englund, United States Department of Justice, with whom were
Catherine E. Reeves, Assistant Director, Vincent J. Matanoski, Deputy
Director, Rupa Bhattacharyya, Director, and Stuart F. Delery, Assistant
Attorney General, Washington, DC, for defendant.


                                   OPINION

       Currently before the court is petitioner’s motion for review of the
Special Master’s April 4, 2014 decision dismissing plaintiff’s petition for
compensation for an injury allegedly caused by a vaccine. The matter is fully
briefed and ready for decision. Oral argument is unnecessary. For the reasons
explained below, we deny petitioner’s motion for review.

      On April 23, 2013, petitioner, David Griffin, filed a petition for
compensation under the National Childhood Vaccine Injury Act, 42 U.S.C. §§
300aa-1 to-34 (2012) (“Vaccine Act”). The petition alleges that Mr. Griffin
developed Guillain-BarrÁ Syndrome (“GBS”) after receiving an influenza
vaccine on February 1, 2012, while working in Afghanistan as a contractor for
the Department of Defense (“DOD”). Respondent filed a motion for summary
judgment on July 2, 2013, arguing that, because petitioner received his
vaccination outside the United States, he was not eligible for compensation
under the Vaccine Act because he was neither a member of the Armed Forces
nor an employee of the United States at the time of his vaccination, and he did
not return to the United States within six months of receiving the vaccine. The
Special Master agreed that petitioner was not eligible for compensation under
the Act and dismissed the petition. See Griffin v. Sec’y of Health & Human
Servs., No. 13-280V, 2014 WL 1653427 (Fed. Cl. Spec. Mstr. April 4, 2014).

                              BACKGROUND 1

I.     Facts

       Petitioner, David Griffin, a United States citizen, arrived in
Afghanistan on January 31, 2012, to begin his position as a site manager for
Fluor, an engineering construction company that contracted to provide support
services to DOD and other government agencies. The contract specified that
Fluor was not an agent of the government but rather was an independent
contractor. Fluor was responsible for all aspects relating to its employees. This
included making sure each Fluor employee passed medical and security
clearances required by the DOD, obtaining passports and visas for employees,
and training employees and ensuring that they receive government training for
interactions with detainees. The Government retained the right to remove Fluor
employees from the site, but only Fluor had the authority to terminate its
employees. Contract personnel were prohibited from wearing military clothing
unless authorized to do so. Even those contractors who were authorized to
wear military uniforms were ordered to wear distinctive patches or badges so
as not to be confused with members of the Armed Forces. Fluor contractors
also agreed to identify themselves as such when corresponding with others to
avoid creating the impression that they were government employees or
members of the military.

       As site manager, petitioner was required to possess knowledge of
various managerial aspects of the base, including budgeting, supervising,
communication, the military’s network, the ordering of supplies, and issues
concerning sanitary, plumbing, electrical and cooking needs. He attended daily
and weekly meetings with military officials and kept in contact with his off-
site Fluor supervisor through a weekly telephone conference. Many of
petitioner’s decisions were influenced by army regulations, and he received


2
 The facts are derived from the Special Master’s decision and are not in
dispute.

                                       2
performance reviews from the military. All of Mr. Griffin’s equipment was
provided by the military.

       Fluor paid Mr. Griffin directly, withheld federal income taxes from his
paycheck, and also provided him with health and dental care. Fluor also
ensured that its employees were covered by the Defense Base Act, which
provides workers’ compensation to civilian employees working on U.S.
military bases.

       Pursuant to the contract between Fluor and DOD, Mr. Griffin passed
various medical and security clearances and was declared “fit for duty” in July
of 2010. On February 1, 2012, the day after he arrived in Afghanistan,
petitioner received an influenza vaccine at a Fluor Clinic at Bagram Airfield
in accordance with DOD’s requirements. In mid-February 2012, Mr. Griffin
began to experience weakness and numbness in his extremities. He checked
in to Makati Medical Center in the Philippines on March 9, and on March 12,
Dr. Cynthia B. Anacay noted that petitioner’s symptoms were indicative of
GBS.

        Mr. Griffin filed a petition under the Vaccine Act on April 23, 2013.
Respondent filed a motion for summary judgment on August 9, 2013, arguing
that the Vaccine Act is unambiguous in limiting compensation to employees
of the United States and that the word “employee” should be considered in its
ordinary meaning. An employee, respondent argued, is “one who works
directly for an employer and receives compensation and other benefits directly
from the employer in return.” Under this definition, respondent concluded that
Mr. Griffin was not an employee of the United States and, thus, was not
eligible for compensation under the Vaccine Act.

II. The Special Master’s Analysis

       In order to receive compensation for an injury caused by a vaccine
under the Vaccine Act, a petitioner must have

               (I) received the vaccine in the United States or in its trust
       territories, (II) received the vaccine outside of the United States
       or a trust territory and at the time of the vaccination 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

                                        3
       vaccine was manufactured by a vaccine manufacturer 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). Petitioner does not claim that he received the
vaccine in the United States or in one of its trust territories, and thus the
Special Master focused on subsections (II) and (III) in her analysis. She
eliminated subsection (III) based on evidence that petitioner did not return to
the United States within six months of receiving the flu vaccine. The Special
Master also concluded that petitioner was not a member of the Armed Forces,
defined in 10 U.S.C. § 101(4) (2012), as being a member of the “Army, Navy,
Air Force, Marine Corps. and Coast Guard.” This left only the possibility that
petitioner could qualify for compensation as an “employee of the United
States.”

        In determining whether Mr. Griffin was an employee of the United
States, the Special Master looked to other statutory schemes and analyzed a
hybrid of the common law agency factors applied by the Supreme Court in the
ERISA2 context in Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318
(1992) (overturning the circuit court’s affirmance of summary judgment
because the lower courts failed to apply the common law master/servent
agency test), and the factors considered by the D.C. Circuit in Spirides v.
Reinhardt, 613 F.2d 826 (D.C. Cir. 1979), to determine whether petitioner was
a federal employee.3 She focused on the overarching question of whether Fluor



3
 “ERISA” refers to the Employee Retirement Income Security Act of 1974,
29 U.S.C. §§ 1001-1461 (2012).
4
 Spirides involved a sex discrimination complaint brought under Title VII of
the Civil Rights Act of 1964. The District Court for the District of Columbia
dismissed plaintiff’s complaint for lack of subject matter jurisdiction on the
ground that plaintiff was an independent contractor and not an employee under
the Act. The District Court based its decision primarily on the terms of
plaintiff’s string of successive one-year employment contracts. Spirides, 613
F.2d at 832. The D.C. Circuit Court overturned the district court’s dismissal
and remanded for further factual inquiring, holding that, although an
employer’s right to control an employee’s “means and manner” of
performance is the most important factor to consider in determining whether
or not an individual is an employee, economic realities must also be taken into
                                                                  (continued...)

                                       4
or the Military had the right to control the means and manner of Mr. Griffin’s
performance by analyzing and balancing factors from both the common law
agency test and the Spirides test. The Special Master noted that certain factors
weighed in favor of the petitioner: the military provided petitioner with a place
to work and tools with which to do his work; members of the military regularly
met with petitioner; and DOD required petitioner to pass various medical and
security clearances in order to work on base.

       The Special Master ultimately decided, however, that more factors
weighed against petitioner’s claim that he was a federal employee: Fluor paid
petitioner, it provided him with medical and dental benefits, it withheld federal
income taxes from his paycheck, and it had the authority to terminate him. The
Special Master observed that the terms of the contract stated specifically that
petitioner was an independent contractor and not an employee of the United
States. She also noted that petitioner possessed specialized knowledge and
specific skills ,indicating that he did not fall into the traditional master/servant
category of an employee; that petitioner provided support services to the
military rather than participating in any core functions of the organization; and
that petitioner’s listing of Fluor as his employer on worker’s compensation
forms indicated that he believed Fluor to be his employer.

       While recognizing that no one factor under either the common law or
the Spirides tests was determinative, the Special Master concluded that the
factors collectively weighed heavily against treating petitioner as an employee
of the United States. She consequently determined that Mr. Griffin is
ineligible to receive compensation under the Vaccine Act, granted
respondent’s motion for summary judgment, and dismissed the petition.

                                 DISCUSSION

       This court has jurisdiction to review decisions of the special masters in
accordance with 42 U.S.C. § 300aa-12. We review the special master’s
decision under the standard articulated in 42 U.S.C. § 300aa-12(e), and we



(...continued)
consideration in making that determination. Id. at 831-32. This can be
achieved through “the application of general principles of the law of agency
to undisputed or established facts. Consideration of all of the circumstances
surrounding the work relationship is essential, and no one factor is
determinative.” Id. at 831.

                                         5
only set aside decisions in which “findings of fact or conclusion of law” are
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law. Id. § 300aa-12(e)(2); see Carson v. Sec’y of Health & Human Servs.,
727 F.3d 1365, 1368 (Fed. Cir. 2013) (the reviewing court should “give no
deference to the . . . Special Master’s determinations of law, but uphold the
Special Master’s findings of fact unless they are arbitrary or capricious”).
Special masters have discretion to weigh the evidence and “reversible error is
‘extremely difficult to demonstrate’” unless the special master has failed to
consider the relevant evidence of record, drawn implausible inferences or
failed to articulate a rational basis for the decision. Lampe v. Sec’y of Health
& Human Servs., 219 F.3d 1357, 1360 (Fed. Cir. 2000) (quoting Hines v. Sec’y
Health & Human Servs., 940 F.2d 1518, 1528 (Fed. Cir. 1999)). The
reviewing court does “not reweigh the factual evidence, assess whether the
special master correctly evaluated the evidence, or examine the probative value
of the evidence or the credibility of the witnesses–these are all matters within
the purview of the fact finder.” Porter v. Sec’y of Health & Human Servs.,
663 F.3d 1242, 1249 (Fed. Cir. 2011).

III. Petitioner Was Not An Employee of the United States

        Petitioner challenges the Special Master’s decision on three grounds.
The first is that the Special Master’s application of the common law agency
test and the Spirides factors was legally and factually in error. Had the Special
Master properly considered the evidence, she would have come to a different
conclusion, according to petitioner. The second challenge, much like the first,
is that the Special Master improperly applied the standard for summary
judgment by not drawing reasonable inferences in his, the nonmovant’s, favor.
In petitioner’s view, his exhibits and declaration testimony establish that the
military was in charge of his time in Afghanistan, and thus the Special Master
should have inferred that he was an employee of the United States when he
received the vaccine. The third challenge raised by petitioner concerns legal
and factual research conducted by the Special Master, which petitioner alleges
was improper.

       Respondent agrees with the Special Master’s ultimate conclusion but
also argues that her consideration of the common law agency test and the
Spirides factors was unnecessary. Those were intended to regulate
employment relationships, not to interpret bright line rules in statutory
language, per respondent. Respondent urges that the Vaccine Act uses
“employees of the United States” as a term of art and that government
employees are governed by a unique set of statutes, which define their

                                       6
relationship with the government. As such, considerations of common law
factors and the meaning of “employee” under other statutory schemes is
inappropriate, according to respondent.

       We agree with respondent. Title V of the United States Code defines a
federal employee as someone who is

              (1) appointed in the civil service by one of the following
       acting in an official capacity
                     (A) the President;
                     (B) a Member or Members of Congress, or the
                     Congress;
                     (C) a member of a uniformed service;
                     (D) an individual who is an employee under this
                     section;
                     (E) the Head of a Government controlled
                     corporation; or
                     (F) an adjutant general designated by the
                     Secretary concerned under section 709(c) of title
                     32;
              (2) engaged in the performance of a Federal function
       under authority of law or an Executive act; and
              (3) subject to the supervision of an individual named by
       paragraph (1) of this subsection while engaged in the
       performance of the duties of his position.

5 U.S.C. § 2105(a) (2012). Federal government employees are governed by
Title V of the United States Code. As the courts have explained in a variety
of contexts, federal workers’ rights are defined by Title V and not by contract,
the common law, or other statutes not specifically made applicable to federal
workers. See, e.g., Doe v. United Sates, 513 F.3d 1348, 1359 (Fed. Cir. 2008)
(“federal employee benefits and pay are governed by statute, not by contract”);
Billings v. United States, 322 F.3d 1328, 1333 (Fed. Cir. 2003) (stating that the
Fair Labor Standards Act did not apply to federal employees until it was
amended to make it specifically applicable to them); New v. Dep’t of Veterans
Affairs, 142 F.3d 1259, 1261 (Fed. Cir. 1998) (unemployment compensation
for federal employees is governed by the Federal Employees Compensation
Act, codified in Title V). Cf. Harris v. United States, 13 Cl. Ct. 363, 365
(1987) (“Overtime compensation due a federal employee is governed by
statute and not be ‘just and equitable’ considerations.”). Thus, when a statute
limits its applicability, at least in part, to only United States employees, we

                                       7
presume that Congress had in mind the definition of a federal employee from
the statutes that govern them.

       Petitioner has not alleged that he is a civil service employee nor that he
was appointed by any of the above listed officials. Petitioner’s right to
compensation under the act begins and ends there. While the Special Master
interpreted the Vaccine Act more liberally and looked outside of the realm of
federal employment law to the common law and the remedial ERISA statute
context, even this generous grant of consideration lead to the conclusion that
Mr. Griffin was not an employee of the United States.

        Congress enacted the Vaccine Act to make it simpler for those
negatively affected by vaccinations in the United States to receive
compensation. One clear limit upon the scope of the act, however, is its
definition of who is eligible to receive compensation. Only those present in
the United States, or who return there within six months of receiving the
vaccine, or those serving abroad as a member of the military or in civil service
are covered. See 42 U.S.C. § 300aa-11(c)(1)(B). When reading this provision
of the Vaccine Act, the canon expressio unius est exclusio alterius, meaning
to include one thing implies the exclusion of the other, is applicable. This
canon “has force . . . when the items expressed are members of an ‘associated
group or series,’ justifying the inference that items not mentioned were
excluded by deliberate choice, not inadvertence.” Barnhart v. Peabody Coal
Co., 537 U.S. 149, 168 (2003). Even if everything petitioner avers is true, and
we draw all inferences in his favor, such as his de facto control by military
officials, he was not a member of the United States Civil Service as defined
section 2105 of the Title 5 when he received the influenza vaccine in
Afghanistan.

       Further, even if we examined the Special Master’s application of the
common law agency test and the factors applied by the Spirides court, we
would conclude that it was not arbitrary and capricious. The Special Master
considered all of the evidence presented, including the control of petitioner’s
day-to-day duties by the military, and concluded that ultimate control lay with
Fluor, with whom he had an employment contract, from whom he received
pay, and who had the power to terminate him. To the extent that the Special
Master made any legal error, it was in petitioner’s favor, and is thus harmless.

IV. The Special Master Did Not Abuse Her Discretion By Conducting Legal
Research and Taking Limited Judicial Notice



                                       8
       Petitioner’s third argument is that the Special Master improperly
consulted materials outside the pleadings in making her determination of
petitioner’s ineligibility. Specifically, he argues that the Special Master’s
consultation of the Restatement (Second) of Agency, case law, dictionaries,
and several websites, without providing him notice, amounted to legal error.
Respondent disagrees, arguing that the Special Master did not err by
conducting outside research without giving petitioner notice because the
matters she researched were all appropriate issues for taking of judicial notice.
Respondent cites the Federal Circuit’s opinion in Hines as allowing for the
taking of judicial notice in vaccination cases.4 Hines, 940 F.2d at 1525-26.

       Special Master Millman did not err by consulting the Restatement and
case law when reviewing Mr. Griffin’s petition. It is not error for a judicial
officer to research prior decisions that might bear on the case in front of her.
Our legal system rests largely on the principle of stare decisis. “‘Stare decisis
in essence makes each judgment a statement of the law, or precedent, binding
in future cases before the same court or another court owing obedience in its
decision.’” Preminger v. Sec’y of Veterans Affairs, 517 F.3d 1299, 1309 (Fed.
Cir. 2008) (quoting Mendenhall v. Cedarapids, Inc., 5 F.3d 1557, 1570 (Fed.
Cir. 1993)). The Special Master’s use of decisional law to support her
determination was not only without fault, it was necessary. As to dictionaries
and encyclopedias, both are within the bounds of judicial notice as they
contain commonly known information which need not be proved. B.V.D.
Licensing Corp. v. Body Action Design, 846 F.2d 727, 728 (Fed. Cir. 1988).

       Special Master Millman also cited three websites not presented by the
parties in her decision. Two of the websites she consulted were government
websites: the Department of Labor website and the Department of Defense
website. She consulted these for generally available information regarding
insurance coverage under the Defense Base Act and the stated mission of the

5
  In Hines, the Special Master consulted a medical textbook in making his
decision on a Vaccine Act petition. The petitioner there claimed that the
Special Master erred by doing so because he did not allow petitioner a chance
to respond to the evidence from the textbook. The Federal Circuit held that
evidentiary principles of “fundamental fairness” were not violated in this
instance of judicial notice because petitioner had the opportunity to respond
and discredit information in the medical textbook on review by the Court of
Federal Claims. The Federal Circuit also concluded that, even if the Special
Master’s taking of judicial notice was in error, the error was harmless as it was
not critical to the resulting decision. Hines, 940 F.2d at 1525-26.

                                       9
Department of Defense. The other website was an informal military website,
which she used to expand the definition of Armed Forces to include members
of the Reserves and the National Guard. “The Federal Rules of Evidence
specifically permit the taking of judicial notice of a fact which is ‘not subject
to reasonable dispute’ because it is ‘capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be
questioned.’” Id. at 1526. In his Motion for Review, Mr. Griffin made no
attempt to discredit the Special Master’s research as to its substance or to
prove that the introduction of the research violated “fundamental fairness”
principles. In short, he has not alleged any prejudice. Morever, we see no
evidence that any of the information garnered from these websites was relied
upon or crucial to the Special Master’s holding, and we have no doubt that her
conclusion would have been the same without the information therein
provided. If the Special Master committed error by conducting outside
research, it was innocuous.

                               CONCLUSION

       Because petitioner was not an employee of the United States when he
received his vaccine abroad, he is not eligible for compensation under the
Vaccine Act. The Special Master’s decision granting summary judgment to
defendant was therefore not arbitrary or capricious. Accordingly, the clerk is
directed to dismiss the petition and enter judgment for respondent.


                                            s/Eric G. Bruggink
                                            ERIC G. BRUGGINK
                                            Judge




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