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 
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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)).
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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. § 300aa12(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. 
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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. 
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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