[00:00:00] Speaker 03:
all of the United States citizens, its territories, I believe also our military bases.

[00:00:08] Speaker 03:
And so, because this is a very broad, I believe, statute or should be interpreted very broadly because of the remedial status of this legislation, if we adopt respondents narrow construction,

[00:00:29] Speaker 03:
we will run counter to legislative intent.

[00:00:33] Speaker 01:
The briefs talk a lot about what is meant by employee and how you determine what that meaning is where the statute doesn't have an express definition.

[00:00:47] Speaker 01:
But we're not just talking about employee, the question of what is an employee in a relational sense.

[00:00:54] Speaker 01:
We're talking about the language of the statute that says an employee of the United States.

[00:01:01] Speaker 01:
Judge Brugging said that was a term of art.

[00:01:04] Speaker 01:
Employee of the United States means something specific and something special, and you turn to Title V to find out what that means.

[00:01:15] Speaker 01:
Why is that wrong?

[00:01:17] Speaker 03:
Well, we disagreed with Judge Brugging because Title V in and of itself

[00:01:23] Speaker 03:
states that it applies to this title only, Title V. There is nothing that indicated that it applies to Title 42, which is the program and the title that we are interpreting here today.

[00:01:39] Speaker 03:
In fact, it is not a term of art.

[00:01:45] Speaker 03:
Title V specifically deals with employees that are

[00:01:52] Speaker 03:
dealing or looking for various benefits that they would receive as civil servants.

[00:02:00] Speaker 03:
And we're not doing that.

[00:02:02] Speaker 03:
We're here to interpret what an employee of the United States is for purposes of the vaccine program.

[00:02:11] Speaker 03:
And I believe when you look at the totality of this statute, Roman numeral one, two, and three,

[00:02:19] Speaker 03:
You'll see a broad picture of what Congress and the vaccine manufacturers intended.

[00:02:25] Speaker 03:
Look at Roman numeral one.

[00:02:28] Speaker 03:
All you have to be is in the United States and you receive a vaccine.

[00:02:34] Speaker 03:
And then it's come one, come all.

[00:02:37] Speaker 03:
Everybody is eligible so long as they come within the three year statute of limitations.

[00:02:42] Speaker 03:
That's a very broad reading.

[00:02:45] Speaker 03:
And I think that is completely in alignment with legislative intent.

[00:02:51] Speaker 03:
Then you go to Roman numeral two, which is where we're focusing Roman numeral two and Roman numeral three.

[00:02:58] Speaker 03:
And Roman numeral two, we are dealing with United States citizens who receive their vaccines outside of the United States.

[00:03:10] Speaker 03:
And then we have the first term.

[00:03:12] Speaker 03:
that you are a member of the armed forces.

[00:03:16] Speaker 03:
Now I've briefed whether or not Mr. Griffin can be, for vaccine purposes only, a member of the armed forces.

[00:03:24] Speaker 03:
But you go to the next two words, which I believe Special Master Millman and Judge Brugink really didn't look at, and that is, or otherwise.

[00:03:37] Speaker 03:
So you're a United States citizen,

[00:03:40] Speaker 03:
who received your vaccine outside of the United States, you're a member of the armed forces or otherwise.

[00:03:48] Speaker 03:
So what do we have here?

[00:03:50] Speaker 03:
Or otherwise is, I believe, language of expansion.

[00:03:55] Speaker 03:
It is not this or that.

[00:03:58] Speaker 03:
It's not members of the armed forces or an employee of the United States.

[00:04:03] Speaker 03:
Congress knows what the word or means.

[00:04:06] Speaker 03:
So we have to give meaning to the words or otherwise.

[00:04:11] Speaker 03:
And I believe that gives us a minimum ambiguity, which then leads us back to we have to follow legislative intent.

[00:04:20] Speaker 02:
But don't you think the otherwise simply means as opposed to the armed forces?

[00:04:26] Speaker 02:
I mean, you can say a military person is an employee of the United States.

[00:04:31] Speaker 02:
It isn't the most natural reading of that or otherwise language.

[00:04:35] Speaker 02:
You're a member of the armed forces or otherwise an employee of the United States, meaning

[00:04:41] Speaker 02:
not just armed forces, other employees of the US are also considered eligible.

[00:04:47] Speaker 03:
If they intended that interpretation, and I believe there's ambiguity here, then they would have just used or, if it was this or that.

[00:04:59] Speaker 03:
But they didn't.

[00:05:00] Speaker 03:
They used this language of expansion, which to me, we would interpret this as more of a class of people.

[00:05:10] Speaker 03:
Who are this class of people?

[00:05:13] Speaker 03:
Citizens of the United States, members of the armed forces.

[00:05:18] Speaker 03:
And then the class of, I would argue, would be those people who are working with the United States.

[00:05:29] Speaker 03:
Otherwise it doesn't make sense.

[00:05:31] Speaker 03:
It's completely dissonant with legislative intent to absolutely exclude

[00:05:38] Speaker 03:
someone who was working side by side with our military who received their vaccination pursuant to Department of Defense requirements.

[00:05:49] Speaker 03:
As well, he's at a United States facility, Army facility in Afghanistan.

[00:05:55] Speaker 03:
It flies our American flag and it would be dissonant, I would propose, to completely exclude him as well as a complete class

[00:06:07] Speaker 03:
of other United States citizens who are working side by side with our United States military.

[00:06:14] Speaker 03:
So I think we have to give meaning to, or otherwise, and I believe it's a clash of United States citizens who are working with the United States government.

[00:06:28] Speaker 01:
Does this mean that it would apply to

[00:06:33] Speaker 01:
Anyone working for a company that was under contract with the government anywhere in the world, say an engineer with GE working up in Antarctica for the National Oceanographic Administration or something of that sort?

[00:06:48] Speaker 03:
If they were a United States citizen, I would agree with that.

[00:06:51] Speaker 01:
So the vaccine special master would not only be making judgments about vaccines and things of that sort, but also

[00:07:03] Speaker 01:
making judgments about the common law applicability of employment law?

[00:07:10] Speaker 03:
It's in the alternative, Your Honor.

[00:07:12] Speaker 03:
I believe that if we do not see this as a class of people, United States citizens working with the government, the United States government, then alternatively, yes, we would need pursuant to the United States Supreme Court case.

[00:07:30] Speaker 03:
We would have to give meaning to

[00:07:32] Speaker 03:
employee which is not defined.

[00:07:35] Speaker 03:
And how the United States Supreme Court says we do that is if it's not defined, they believe or state that Congress intended that the court in fact do this agency principle analysis to determine whether or not someone is an employee of the United States.

[00:07:58] Speaker 03:
Respondent had argued that we should try to make this simpler.

[00:08:02] Speaker 03:
And when I re-looked at this statute, I started saying, okay, no one yet has looked at what does or otherwise mean.

[00:08:13] Speaker 03:
There was, and it's very difficult because there's not many cases that actually define or give meaning to the words or otherwise.

[00:08:22] Speaker 03:
I only found a couple.

[00:08:24] Speaker 03:
I think there was one, a United States Supreme Court case called Dooch, G-O-O-C-H.

[00:08:31] Speaker 03:
A long time ago, I think it was in the 1930s or something.

[00:08:35] Speaker 03:
And they discussed wording of, you know, when a policeman has been captured against or kidnapped against his will for ransom, reward, or otherwise.

[00:08:51] Speaker 03:
And again, this was

[00:08:52] Speaker 03:
kind of words of expansion.

[00:08:54] Speaker 03:
They kind of found that it should be a class of people.

[00:09:03] Speaker 03:
And so that's what we're arguing here today.

[00:09:05] Speaker 02:
You're in your rebuttal time.

[00:09:07] Speaker 02:
Would you like to save it?

[00:09:09] Speaker 03:
Yes.

[00:09:10] Speaker 02:
Then we should hear from the government.

[00:09:12] Speaker 02:
Thank you.

[00:09:21] Speaker 04:
Good morning.

[00:09:22] Speaker 04:
My name is Laura England and I represent the respondent, the Secretary of Health and Human Services.

[00:09:28] Speaker 04:
May it please the court?

[00:09:29] Speaker 04:
The issue in this case is whether at the time of this vaccination petitioner was serving abroad as an employee of the United States as required by the Vaccine Act.

[00:09:37] Speaker 04:
The special master in the Court of Federal Claims correctly determined that he was not.

[00:09:42] Speaker 04:
It is undisputed that petitioner was an employee of Floor, a private company that provided services to the United States Army pursuant to a contract.

[00:09:50] Speaker 04:
There was no formal employment relationship between the petitioner and the United States.

[00:09:57] Speaker 04:
Nothing in the text of the Act indicates that Congress intended for it to apply to contractors.

[00:10:02] Speaker 04:
The text does not explicitly include the word contractors, and Congress used the statutory language, not simply employee, but employee of the United States.

[00:10:13] Speaker 04:
And our argument is that given that... Well, it couldn't just say employee, right?

[00:10:19] Speaker 02:
Because anyone who is then employed even in a foreign government by a foreign agency or a foreign company would then qualify.

[00:10:26] Speaker 02:
So of course it had to specify employee of the United States.

[00:10:30] Speaker 02:
I don't understand that argument.

[00:10:31] Speaker 04:
Well, it could say or otherwise working on behalf of the United States if it wanted to.

[00:10:36] Speaker 04:
I mean, there are ways that it could have phrased it to make it clear that the intention was to be broad.

[00:10:41] Speaker 04:
But it didn't use the term employee of the United States.

[00:10:43] Speaker 02:
And hasn't the Supreme Court indicated that when you're trying to determine whether someone is an employee of any corporation or the government or anyone else that there's, what, a 16 factor test that you're supposed to look to?

[00:10:56] Speaker 04:
Well, the court has said in a couple of cases that when Congress uses the word employee

[00:11:02] Speaker 04:
When Congress uses the word employee, because that term is defined by the common law, that it probably intended the definition used in the common law.

[00:11:12] Speaker 04:
But the cases where it applied that definition all regulated the employment relationship.

[00:11:17] Speaker 04:
So it makes sense, given that this is such a very complicated test to apply.

[00:11:22] Speaker 04:
It involves at least 16 factors, if not more.

[00:11:25] Speaker 04:
It makes sense in those cases, because you're trying to look at the economic realities of those relationships.

[00:11:32] Speaker 04:
to go to the trouble of applying that test.

[00:11:35] Speaker 04:
But our position is here, the Act intended to adopt a bright line rule.

[00:11:40] Speaker 04:
This is a preliminary matter and it shouldn't be read to require extensive fact finding and potentially discovery in a fact hearing.

[00:11:49] Speaker 04:
Moreover, if you look at the other two provisions that are in this section, those provisions also adopt bright line rules.

[00:12:00] Speaker 04:
Roman numeral one is based on location.

[00:12:03] Speaker 04:
You're eligible to bring a claim if you receive the vaccine within the territory of the United States or its territories.

[00:12:10] Speaker 04:
And Roman numeral three is based on time.

[00:12:12] Speaker 04:
You're eligible if you return to the United States within six months.

[00:12:16] Speaker 04:
And so we think it makes sense to interpret section two as adopting a bright line rule as well.

[00:12:23] Speaker 01:
What about the argument that title five itself says this shall only apply to title five?

[00:12:29] Speaker 04:
I think, I mean, the question for this court is to try to determine what Congress meant when it passed the Vaccine Act and when it used the term employee of the United States.

[00:12:41] Speaker 04:
And given that that relationship between the United States and its employees is such a highly regulated relationship, and that it's not subject to common law and it's not subject to contract law, that I think it's reasonable for the court to assume that Congress meant to refer to this class of employees

[00:12:58] Speaker 04:
that are governed by this extensive regulatory framework.

[00:13:03] Speaker 04:
So obviously it would be a much easier case if Congress had defined the term, but it didn't, and so we're left to try to glean Congress's intent from the clues that it left.

[00:13:13] Speaker 04:
We also argue that applying the Brightline Rule furthers the purposes of the Act.

[00:13:18] Speaker 04:
While the Act is intended to be generous, it's also intended to be quick and easy, efficient, certain, and fair.

[00:13:25] Speaker 04:
The test we propose is quick and easy because it's easy to apply.

[00:13:29] Speaker 04:
It doesn't require fact-binding.

[00:13:31] Speaker 02:
Just to be clear, I have had a lot of these cases.

[00:13:36] Speaker 02:
And at least the ones that come before us are often cases that are off-table cases.

[00:13:42] Speaker 02:
I don't think the words quick and easy could ever possibly be applied to those cases.

[00:13:48] Speaker 02:
Would you agree with that?

[00:13:50] Speaker 04:
I do agree with that.

[00:13:51] Speaker 02:
I do agree with that.

[00:13:52] Speaker 02:
So basically, the statute has table cases.

[00:13:55] Speaker 02:
which I think are probably generally quickly and easily administered, and we don't see those.

[00:14:00] Speaker 02:
But at least the great volume of cases that we end up seeing are more often the off-table cases, and those are voluminous and extensive with experts and discovery and all kinds of things.

[00:14:14] Speaker 02:
But Congress didn't contemplate in all circumstances this being quick and easy, did they?

[00:14:21] Speaker 04:
I agree with that.

[00:14:23] Speaker 04:
the cases can propose very difficult issues with regard to causation, but for that very reason that the cases tend to be complicated when you get to the causation issues, there's no need to adopt a standard for this pretty preliminary matter that is equally complicated and requires fact-finding before you even get to the issue of whether the petitioner has a claim.

[00:14:47] Speaker 02:
How often do you think this is going to come up?

[00:14:50] Speaker 02:
Obviously we're loathe to

[00:14:52] Speaker 02:
introduce a huge ambiguity into administrative application of a benefit like this.

[00:15:01] Speaker 02:
But how often, I mean, how many cases are you aware of where you have contractors receiving vaccinations abroad that are submitting claims?

[00:15:11] Speaker 04:
Well, this is the only, the second reported case that I'm aware of.

[00:15:15] Speaker 04:
I don't know if that's because people just aren't bringing claims because they don't understand themselves to be eligible to bring claims.

[00:15:23] Speaker 04:
So obviously, if the court interpreted this more broadly, we would expect to see a lot more claims.

[00:15:29] Speaker 00:
He received the vaccine at Fogrom Air Force Base.

[00:15:32] Speaker 04:
Yes.

[00:15:34] Speaker 00:
If he had been told to report to the embassy, if given a shot, would he then be covered?

[00:15:39] Speaker 04:
No, I don't think the location other than within the United States.

[00:15:42] Speaker 00:
But it's the territory of the United States.

[00:15:46] Speaker 04:
I am not sure if that's true.

[00:15:48] Speaker 04:
Well, the vaccine uses the term within the United States or its trust territories.

[00:15:52] Speaker 04:
I don't, I'm not aware that the embassy is considered a trust territory.

[00:15:56] Speaker 02:
Or isn't the embassy actually considered U.S.

[00:15:58] Speaker 02:
soil?

[00:15:59] Speaker 04:
Sovereign territory.

[00:16:00] Speaker 04:
Yes, I'm sorry.

[00:16:01] Speaker 04:
I'm not familiar with exactly what the, what sovereign territory of the United States is.

[00:16:05] Speaker 04:
I know that Bagram Air Force Base is not.

[00:16:09] Speaker 04:
And I don't, and there's not an embassy in, I mean, there's in Kabul, but that's a different location.

[00:16:16] Speaker 04:
So in addition to serving the interests of easy administration, this test also promotes the interest of certainty because it's easy to understand and it gives petitioners notice about whether they have a claim.

[00:16:28] Speaker 04:
We also think it serves the interest in fairness because it treats like cases alike.

[00:16:34] Speaker 04:
One of the goals of the act is to make sure that similarly situated petitioners are treated the same.

[00:16:39] Speaker 04:
And adopting the common law standard to interpret this provision

[00:16:43] Speaker 04:
would create a risk that people are treated differently based on relatively minor details of their employment relationship if they're contractual.

[00:16:51] Speaker 01:
Isn't it true that the act itself is, in its overall posture, is expansive?

[00:16:58] Speaker 01:
It doesn't restrict who among US citizens is covered.

[00:17:02] Speaker 01:
Everybody in the United States is covered.

[00:17:05] Speaker 01:
In general, it seems like a very expansive arrangement intended to accomplish

[00:17:14] Speaker 01:
a salutary goal to say, well, let's be narrow in our interpretation.

[00:17:23] Speaker 01:
Sounds like it's contrary to the Act.

[00:17:25] Speaker 04:
Well, within the United States, definitely the Act is expansive.

[00:17:28] Speaker 04:
It applies to everyone who receives a covered vaccine.

[00:17:31] Speaker 04:
But it's important to note that the vaccine program is funded by an excise tax on vaccines, and that tax applies to vaccines sold within the United States.

[00:17:41] Speaker 04:
And so given that there is a fundamental quid pro quo at the heart of the act, it makes sense to say that if you're getting the vaccine for which the excise tax was paid, you get the benefit of the vaccine program.

[00:17:55] Speaker 04:
That's not necessarily true if you get a vaccine outside of the United States, because that vaccine might not have been subject to the excise tax.

[00:18:02] Speaker 02:
So I think... It seems like it's not.

[00:18:07] Speaker 02:
basis upon which we could or should decide because the statute clearly contemplates all members of the armed forces or employees of the US who are abroad receiving vaccines.

[00:18:17] Speaker 02:
And if you're saying that somehow a determination ought to be made on whether an excise tax was or was not paid on this particular dose before administered, it doesn't seem to be consistent with the idea that Congress intended.

[00:18:31] Speaker 02:
of applications to occur abroad that would be subject to this.

[00:18:34] Speaker 04:
No, I'm not arguing that Congress intended for the court to make that kind of inquiry, but I am arguing that that is a reason to interpret these two provisions that apply outside the United States narrowly.

[00:18:45] Speaker 04:
That Congress adopted narrower restrictions on those vaccinations because they wanted to avoid an issue of free riders.

[00:18:56] Speaker 02:
So you seem to be making this argument up out of whole cloth.

[00:18:59] Speaker 02:
I have seen no evidence either in the statute or in any legislative history to suggest what you just said.

[00:19:05] Speaker 02:
Do you have some support in something other than your idea for the notion that Congress intended to create a narrow limit for administrations outside the US because of this excise tax?

[00:19:23] Speaker 04:
There's nothing in the legislative history.

[00:19:25] Speaker 04:
It's just based on the structure of the Act, and then particularly if you look at provision three of this section.

[00:19:30] Speaker 02:
But I don't see anything in the Act that says anything about the excise tax, that there is some attempt to link the excise tax and whether it was in fact paid to someone's availability for remedy.

[00:19:42] Speaker 02:
Do you see anything in the Act?

[00:19:43] Speaker 02:
that does that.

[00:19:44] Speaker 04:
Nothing in the act refers to the excise tax?

[00:19:46] Speaker 02:
There's nothing in the act that refers to the excise tax.

[00:19:49] Speaker 02:
There's nothing in the legislative history that refers to it, but you think we should nonetheless construe a section of the act narrowly because in your view Congress would have intended it because it was linked to the excise tax.

[00:19:59] Speaker 04:
Well, as I was going to say, that section three is limited to vaccines that were manufactured by a manufacturer that is located in the United States.

[00:20:08] Speaker 04:
And so that is a rough proxy for whether that manufacturer is paying into the vaccine program.

[00:20:14] Speaker 04:
And so that is some support for the fact that Congress was trying to approximate.

[00:20:20] Speaker 02:
Or do you think rather it is support for the idea that Congress was trying to create a system that would avoid subjecting those manufacturers to lawsuits in the United States?

[00:20:30] Speaker 02:
I mean, isn't that actually the whole point of the vaccine fund is to

[00:20:36] Speaker 02:
avoid those pharmaceutical manufacturers in the United States from being sued so that they wouldn't stop making vaccines.

[00:20:44] Speaker 04:
Right.

[00:20:45] Speaker 04:
And at the heart of that is the quid pro quo, which is that in return for this shield from liability, you pay an excise tax.

[00:20:53] Speaker 04:
And so I do think that those two go hand in hand.

[00:20:58] Speaker 04:
In addition, we think this interpretation is fair because contract workers would still have a remedy under the Act, which is to return to the United States within six months.

[00:21:07] Speaker 02:
What do you mean they have a remedy under the Act?

[00:21:09] Speaker 02:
Explain that to me.

[00:21:10] Speaker 04:
So someone like Petitioner, if he had returned to the United States within six months, he still could bring a claim.

[00:21:17] Speaker 02:
So if he returned to the U.S.

[00:21:18] Speaker 02:
within six months of what?

[00:21:20] Speaker 02:
Receiving the vaccination?

[00:21:22] Speaker 02:
Yes.

[00:21:23] Speaker 02:
Then he would be eligible to bring a claim?

[00:21:25] Speaker 04:
Under Prop 3.

[00:21:29] Speaker 04:
And so that is a way that Congress was a little bit more expansive in providing recovery.

[00:21:35] Speaker 02:
And this gentleman doesn't qualify?

[00:21:40] Speaker 04:
Based on the record, he has never returned to the United States since his vaccination.

[00:21:45] Speaker 04:
Even if the common law standard definition of employee applies, the special master correctly determined that the petitioner was not employed.

[00:21:51] Speaker 02:
What if he died from the vaccine instantly?

[00:21:54] Speaker 02:
When his body's returned to the US, would he then have a claim under three?

[00:21:58] Speaker 04:
That would be a much harder case if it was literally impossible for him to return to the United States.

[00:22:04] Speaker 02:
What if he was severely injured by the vaccine, as occasionally people are, such that he needed to be hospitalized and there was a concern about transporting him back to the United States?

[00:22:16] Speaker 04:
Again, that would be a more difficult case.

[00:22:18] Speaker 04:
But here, Petitioner was able to travel.

[00:22:20] Speaker 04:
He traveled to Dubai and he traveled to the Philippines.

[00:22:22] Speaker 04:
And so within six months after his vaccination,

[00:22:27] Speaker 04:
There's nothing in the record that suggests he was not able, physically able to return to the United States.

[00:22:32] Speaker 02:
What does the record suggest about when he realized that the injuries he claims to have suffered were linked to the vaccine?

[00:22:40] Speaker 04:
I believe that he was diagnosed with a GBS in June of 2012, and the vaccination was February 1st.

[00:22:50] Speaker 04:
And the records are sparse about what the doctors told him about what caused it.

[00:22:55] Speaker 04:
But certainly a Google search would have told him that it could be linked to the vaccine at that time.

[00:23:00] Speaker 02:
So would you suggest then that the six-month period ought to be governed by a new or should have known standard?

[00:23:06] Speaker 02:
I mean, if you had not known and had no reason to know that the illness you suffered was the cause of the vaccine and therefore didn't return to the US to make sure you could fall within this, I mean, is it a known or should have known standard?

[00:23:19] Speaker 04:
I don't think so.

[00:23:20] Speaker 04:
I think it's an objective test.

[00:23:21] Speaker 04:
But simply, did you return or did you not return?

[00:23:25] Speaker 04:
So as I was saying, even if the common definition of employee applies, the Special Master correctly determined that the petitioner was not an employee under that definition.

[00:23:36] Speaker 04:
That test requires the courts to analyze a number of different factors.

[00:23:40] Speaker 02:
I know, and that kind of really concerned me.

[00:23:42] Speaker 02:
It feels like a really big factual sort of question, doesn't it to you?

[00:23:47] Speaker 02:
It is a factual question.

[00:23:50] Speaker 02:
And what was the proceeding under which the Special Master resolved it?

[00:23:54] Speaker 04:
is a summary judgment motion.

[00:23:58] Speaker 04:
Does that cause you any pause?

[00:24:00] Speaker 02:
The 16-factor SAT question.

[00:24:05] Speaker 04:
Petitioner had ample opportunity to... Well, there are, if you look at the DC Circuit cases that petitioner relies on, a lot of those cases are decided on summary judgment as well.

[00:24:16] Speaker 04:
So there is precedent for this issue being decided on summary judgment.

[00:24:21] Speaker 04:
But again,

[00:24:23] Speaker 04:
I'm almost out of time.

[00:24:25] Speaker 02:
You're actually over time.

[00:24:27] Speaker 02:
So let's let Ms.

[00:24:28] Speaker 02:
Rockmore have her rebuttal time.

[00:24:30] Speaker 04:
Thank you.

[00:24:30] Speaker 02:
Thank you.

[00:24:41] Speaker 03:
If I may.

[00:24:44] Speaker 03:
There was a couple things that were brought up and I think that the court is starting to really hone into the issue.

[00:24:52] Speaker 03:
One thing is this group of people under Roman numeral two, I do want to point out to the court that even the Department of Defense and the Army regulations do look at this blended force.

[00:25:09] Speaker 03:
And I'm going to point to a couple documents.

[00:25:13] Speaker 03:
The Army regulation 715-9, which is found at appendix 346,

[00:25:22] Speaker 03:
deals with providing overall supervision for manpower reserve affairs across the Army components, and they define Army components as active Army, Guard, Reserve, civilian, and contractors.

[00:25:40] Speaker 03:
Another citation where the Department of Defense kind of recognizes this blended force, at least for purposes of immunization and pre-deployment health assessment,

[00:25:51] Speaker 03:
They define DOD personnel as military, civilian, and contractors.

[00:26:00] Speaker 03:
So there is some recognition of this blended force by our United States government.

[00:26:09] Speaker 03:
When we're talking about a bright line rule and that employees should be... Does the Act define what are trusted territories?

[00:26:24] Speaker 03:
I've not seen any definition of trusted territories.

[00:26:28] Speaker 03:
I would, I have to concede to the court that the eligibility statute is not well defined.

[00:26:35] Speaker 03:
And therefore again, there's a lot of ambiguity that needs interpretation.

[00:26:40] Speaker 02:
Well, the government suggested that if Mr. Griffin had returned to the United States under prong three, within six months that he would have then had eligibility for a claim.

[00:26:52] Speaker 02:
If I understand the facts right, the petitioner actually went within six months to the Philippines in order to receive treatment for his illness.

[00:27:01] Speaker 02:
And I'm wondering, because Prom III doesn't just say return to the United States, I think it says the United States or a trusted territory.

[00:27:08] Speaker 02:
So I'm wondering if the Philippines is a trusted territory.

[00:27:11] Speaker 02:
I don't know what trusted territory means.

[00:27:13] Speaker 02:
I would think Puerto Rico would qualify, but I don't know.

[00:27:16] Speaker 02:
Does this is Guam maybe?

[00:27:18] Speaker 02:
What about the Philippines?

[00:27:22] Speaker 03:
I don't know the answer to that question.

[00:27:24] Speaker 03:
Me neither.

[00:27:24] Speaker 03:
I wish I did.

[00:27:26] Speaker 03:
What I can say is that he didn't just travel there on his own will.

[00:27:31] Speaker 03:
He was airlifted because he did have Guillain-Barre and that is a very serious injury.

[00:27:38] Speaker 02:
And in fact he was still being treated.

[00:27:40] Speaker 02:
I think I might have been reading it wrong.

[00:27:42] Speaker 02:
It says if you receive the vaccine outside the United States or a trusted territory to

[00:27:46] Speaker 02:
it then says he has to go back to the U.S.

[00:27:48] Speaker 02:
not later than six months.

[00:27:50] Speaker 02:
It doesn't say U.S.

[00:27:51] Speaker 02:
or trusted territory within six months.

[00:27:53] Speaker 02:
So I guess the Philippines is quite clearly not the U.S.

[00:27:56] Speaker 02:
So I think I may have gotten that one wrong.

[00:27:59] Speaker 03:
But I would like to at least address the court that what if he could not come back in six months?

[00:28:06] Speaker 03:
And that indeed is the case.

[00:28:08] Speaker 03:
He was still being treated long after, not long after, but by the time the six months had last, he was, which I believe was in June or July,

[00:28:16] Speaker 03:
he was still being treated in August.

[00:28:19] Speaker 03:
So it's not as if he could have just returned.

[00:28:24] Speaker 03:
And in fact, how does someone find out about this vaccine program?

[00:28:31] Speaker 03:
How does one connect the dots that this vaccine program even exists, which is very difficult to find out for many people.

[00:28:39] Speaker 03:
But then in addition to have to return within six months

[00:28:44] Speaker 03:
of receipt of the vaccine.

[00:28:47] Speaker 03:
And when you go to even the website, the secretary under 300 AA-10 has a responsibility to make reasonable efforts to make this program known.

[00:29:02] Speaker 03:
And even if you go to the website, even if you find out that the vaccine caused Guillain-Barre, and then

[00:29:10] Speaker 03:
that there is this vaccine program.

[00:29:12] Speaker 03:
You have to then find out if you're outside of the country that you must return in six months, even though you're still being treated.

[00:29:19] Speaker 03:
So how do you find out?

[00:29:23] Speaker 03:
OK, maybe you're able to access a computer in the Philippines or in Afghanistan.

[00:29:29] Speaker 03:
Ms.

[00:29:29] Speaker 03:
Rockmore, your time is up.

[00:29:31] Speaker 03:
If you have a final thought, please go ahead.

[00:29:35] Speaker 03:
Your Honor, at minimum,

[00:29:37] Speaker 03:
equity should be, if you disagree with the interpretation that we have provided, at minimum equity like that which was defined in the newest United States Supreme Court case in Wong when they looked at a six-month statute and a two-year statute under the Federal Tort Act and basically found that

[00:30:02] Speaker 03:
that this is a mere claims processing rule subject to equitable tolling.

[00:30:08] Speaker 03:
So at minimum we would argue for equity.

[00:30:11] Speaker 03:
Thank you very much.

[00:30:12] Speaker 02:
I thank both Council for their argument.

[00:30:14] Speaker 02:
The case is taken under submission.