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.
` ______________________
`
`

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`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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`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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`DUPUCH-CARRON v. HHS
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`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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`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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`DUPUCH-CARRON v. HHS
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`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
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`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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`DUPUCH-CARRON v. HHS
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`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
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`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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`DUPUCH-CARRON v. HHS
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`(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.
`A.R. D-C. Was Not a “Person” Who Had Pre-
`I.
`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
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`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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`DUPUCH-CARRON v. HHS
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`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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`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.
`
`
`In 2016, the 21st Century Cures Act, Pub. L. No.
`1
`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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`Case: 20-1137 Document: 36 Page: 14 Filed: 08/11/2020
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`14
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`DUPUCH-CARRON v. HHS
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`(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 alive3 at
`
`
`In accordance with 42 U.S.C. § 300aa–11(f)(2), “the
`2
`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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`Case: 20-1137 Document: 36 Page: 15 Filed: 08/11/2020
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`DUPUCH-CARRON v. HHS
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`15
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`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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`Case: 20-1137 Document: 36 Page: 16 Filed: 08/11/2020
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`DUPUCH-CARRON v. HHS
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`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.”
`A.R. D-C. Had Not “Returned to the United
`II.
`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
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`17
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`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