Heinzelman v. Sec. Of Health and Human Services

United States Court of Appeals
for the Federal Circuit
__________________________
STACEY HEINZELMAN,
Petitioner-Appellee,
v.
SECRETARY OF HEALTH AND HUMAN
SERVICES,
Respondent-Appellant.
__________________________
2011-5127
__________________________
Appeal from the United States Court of Federal
Claims in case no. 07-VV-001, Judge Edward J. Damich
_________________________
Decided: June 13, 2012
_________________________
RICHARD GAGE, Richard Gage, P.C., of Cheyenne,
Wyoming, argued for petitioner-appellee.
LINDSEY POWELL, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, argued for respondent-
appellant. With her on the brief were TONY WEST, Assis-
tant Attorney General, and THOMAS M. BONDY.
__________________________
Before BRYSON, PROST, and O’MALLEY, Circuit Judges.
HEINZELMAN v. HHS 2
O’MALLEY, Circuit Judge.
This case involves a dispute over the amount of com-
pensation Petitioner Stacey Heinzelman (“Heinzelman”)
is entitled to receive under the National Childhood Vac-
cine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to 300aa-34
(“Vaccine Act”). The Secretary of Health and Human
Services (“the government”) appeals the final decision of
the United States Court of Federal Claims, which af-
firmed the special master’s decision that Petitioner’s
compensation under the Vaccine Act should not be re-
duced by the amount of benefits she is eligible to receive
through Social Security Disability Insurance (“SSDI”).
See Heinzelman v. Sec’y of Health & Human Servs., 98
Fed. Cl. 808 (2011); Heinzelman v. Sec’y of Health &
Human Servs., No. 07-01V, 2010 U.S. Claims LEXIS 333(Fed. Cl. Spec. Mstr. May 18, 2010). Because we agree
that SSDI benefits should not be taken into account in
calculating Heinzelman’s “actual or anticipated loss of
earnings” under 42 U.S.C. § 300aa-15(a)(3)(A), and that
SSDI does not fall within any of the categories of author-
ized offsets under § 300aa-15(g), we affirm.
BACKGROUND
Heinzelman was born in 1971. On December 10,
2003, she received a flu vaccine, and within thirty days
thereafter she was hospitalized for Guillain-Barre syn-
drome (“GBS”) – a disorder affecting the peripheral nerv-
ous system.
Before Heinzelman developed GBS, she was employed
full-time as a hairstylist earning $49,888 per year. At
this stage in the proceedings, it is undisputed that, due to
her injury, Heinzelman: (1) will never be able to work
again; and (2) is eligible to receive SSDI benefits of ap-
proximately $20,000 per year.
3 HEINZELMAN v. HHS
On January 3, 2007, Heinzelman filed a petition for
compensation under the Vaccine Act alleging that the flu
vaccine caused her to develop GBS. In a December 2008
decision, the special master found that Heinzelman
proved, by a preponderance of the evidence, that the flu
vaccine caused her injury and that she was entitled to
compensation. Heinzelman v. Sec’y of Health & Human
Servs., No. 07-01V, 2008 U.S. Claims LEXIS 434, *53-56
(Fed. Cl. Spec. Mstr. Dec. 11, 2008). That decision is not
at issue on appeal.
In May 2010, the special master issued a separate rul-
ing regarding the amount of compensation to which
Heinzelman is entitled. In that decision, the special
master rejected the government’s argument that
Heinzelman’s eligibility for SSDI benefits should be
considered in determining her compensation under the
Vaccine Act. Specifically, the special master found that:
(1) Heinzelman’s anticipated SSDI income should not be
taken into consideration in calculating her “actual or
anticipated loss of earnings” under § 300aa-15(a)(3)(A);
and (2) SSDI is not a “federal . . . health benefits pro-
gram” within the meaning of § 300aa-15(g), and therefore
her compensation should not be offset based on her eligi-
bility for SSDI benefits.
On December 7, 2010, the special master entered final
judgment awarding Heinzelman $1,133,046.08, plus an
annuity to cover future medical expenses. Of the lump
sum awarded, $900,000 was to compensate Heinzelman
for her lost earnings. According to the government,
Heinzelman’s lost earnings award would have been
roughly $316,000 less had the special master taken her
anticipated SSDI benefits into account.
The government moved the Court of Federal Claims
to review the special master’s final judgment awarding
HEINZELMAN v. HHS 4
damages, which incorporated both the December 2008
decision granting compensation under the Vaccine Act,
and the May 2010 ruling regarding offset. In June 2011,
the Court of Federal Claims affirmed the special master’s
decisions in their entirety. In relevant part, the court
agreed that SSDI benefits should not be taken into ac-
count in determining Heinzelman’s compensation under
§ 300aa-15. The government timely appealed that issue
to this court, and we have jurisdiction pursuant to 42
U.S.C. § 300aa-12(f).
DISCUSSION
The sole question on appeal is whether a petitioner’s
compensation under the Vaccine Act should be reduced by
the amount of SSDI benefits she is eligible to receive.
Resolution of this question involves the interpretation and
interplay between two provisions of the Vaccine Act:
§ 300aa-15(a)(3)(A) – which provides compensation for
lost earning capacity – and § 300aa-15(g) – which offsets
the compensation award where the petitioner is expected
to receive payments under certain other programs. Be-
cause statutory interpretation is a question of law, we
review the trial court’s determination de novo. Aull v.
Sec’y of Health & Human Servs., 462 F.3d 1338, 1342
(Fed. Cir. 2006).
Where, as here, the petitioner has suffered a vaccine-
related injury after attaining the age of eighteen, and her
earning capacity is impaired by that injury, her compen-
sation under the Vaccine Act includes “compensation for
actual and anticipated loss of earnings determined in
accordance with generally recognized actuarial principles
and projections.” 42 U.S.C. § 300aa-15(a)(3)(A). The Act
provides, however, that the Vaccine Program is “not
primarily liable,” and that an award under the Vaccine
Act is offset to the extent the petitioner is entitled to
5 HEINZELMAN v. HHS
receive payments from certain specified programs. Spe-
cifically, § 15(g) provides that:
Payment of compensation under the Program
shall not be made for any item or service to the
extent that payment has been made, or can rea-
sonably be expected to be made, with respect to
such item or service (1) under any State compen-
sation program, under an insurance policy, or un-
der any Federal or State health benefits program
(other than under title XIX of the Social Security
Act [42 USCS §§ 1396 et seq.]) [Medicaid], 1 or (2)
by an entity which provides health services on a
prepaid basis.
42 U.S.C. § 300aa-15(g).
On appeal, the government argues that the special
master and the Court of Federal Claims erred in conclud-
ing that SSDI benefits should not be considered in deter-
mining compensation under the Vaccine Act. Specifically,
the government argues that Heinzelman’s eligibility for
SSDI benefits should have been considered either as part
of the “lost earnings” calculation under § 300aa-
15(a)(3)(A) or as an offset under § 15(g). In the alterna-
tive, the government argues that § 300aa-15 of the Vac-
cine Act is ambiguous, and that principles of sovereign
1 The exception “(other than under title XIX of the
Social Security Act),” i.e. Medicaid, was added to § 15(g)
in 1989. Congress added this language to “specify that
Medicaid is to be considered a second payor for health
care costs to the Vaccine Injury Compensation Trust
Fund. Medicaid serves as a second payor to all other
sources of payment for health care, including private
litigation, and the compensation program is amended to
follow that precedent.” H.R. Rep. No. 101-386, at 517
(1989) (Conf. Rep.), reprinted in 1989 U.S.C.C.A.N. 3018,
3120.
HEINZELMAN v. HHS 6
immunity weigh against exposing the federal government
to further liability.
In response, Heinzelman argues that: (1) § 300aa-
15(a)(3)(A) does not authorize offsets to a petitioner’s lost
wages award; (2) Congress did not include SSDI as one of
the specifically enumerated offsets in § 15(g); and (3) the
plain language of the Vaccine Act is unambiguous, such
that the doctrine of sovereign immunity does not compel a
reading of the Act which is sympathetic to the govern-
ment’s views. For the reasons explained below, we agree
with Heinzelman on each point.
A. Section 15(a)(3)(A)
As noted, when certain qualifications are satisfied,
§ 300aa-15(a)(3)(A) authorizes “compensation for actual
and anticipated loss of earnings.” The question of
whether “lost earnings” requires a deduction for SSDI
benefits is a question of statutory interpretation, and our
analysis begins with the language of the statute.
Youngblood v. Sec’y of Health & Human Servs., 32 F.3d
552, 554 (Fed. Cir. 1994) (citing K Mart Corp. v. Cartier,
Inc., 486 U.S. 281, 291 (1988)). When interpreting a
statute, however, the court “must look not only at the
particular statutory provision in question, but also at the
language and design of the statute as a whole.” Id. (citing
K Mart Corp., 486 U.S. at 291). It is a well-settled princi-
ple of statutory interpretation that a “statute is to be
construed in a way which gives meaning and effect to all
of its parts.” Saunders v. Sec’y of Health & Human
Servs., 25 F.3d 1031, 1035 (Fed. Cir. 1994) (citing United
States v. Nordic Vill., Inc., 503 U.S. 30, 36 (1992) (noting
the “settled rule that a statute must, if possible, be con-
strued in such fashion that every word has some operative
effect”)).
7 HEINZELMAN v. HHS
Here, the Court of Federal Claims began its analysis
by noting that “loss of earnings” is not defined in the
statute. The court looked to Black’s Law Dictionary,
which defines “earnings” as “[r]evenue gained from labor
or services, from the investment of capital, or from as-
sets.” Heinzelman, 98 Fed. Cl. at 816 (quoting Black’s
Law Dictionary 548 (9th ed. 2009)). Using this definition,
the court found that the starting point for the lost earn-
ings calculation “is the amount of earnings during the
past, present, and/or future loss periods.” Id.
Looking to the relationship between § 300aa-
15(a)(3)(A) and § 300aa-15(g), the Court of Federal Claims
agreed with the special master that § 15(a) authorizes
compensation, while § 15(g) takes it away in certain
situations. Specifically, the court found that: (1) the focus
of § 15(a)(3)(A) “is to establish a baseline for compensa-
tion: earnings not earned because of the vaccine injury”;
and (2) “SSDI provides a degree of mitigation of lost
earnings, but does not change the calculation thereof.” Id.
Accordingly, the Court of Federal Claims concluded that
Heinzelman’s SSDI benefits “should not be considered in
the first instance” when calculating her “lost earnings”
under § 15(a)(3)(A). 2 Id. at 817.
2 The Court of Federal Claims also pointed to lan-
guage in the legislative history providing that: “The
Committee does not intend that the award be reduced
because of other government benefits for which the in-
jured person might be eligible.” Heinzelman, 98 Fed. Cl.
at 817 (citing H.R. Rep. No. 908, 99th Cong., 2d Sess.
1986, reprinted in 1986 U.S.C.C.A.N. 6344, 6362). As the
government argues, however, this language is inapplica-
ble as it appears to relate solely to awards for children
injured by vaccines, and there is a specific formula for
calculating lost earnings for children because they lack
any meaningful work history.
HEINZELMAN v. HHS 8
On appeal, the government argues that SSDI income
must be considered in calculating Heinzelman’s “actual
and anticipated loss of earnings” under § 15(a)(3)(A)
because she “suffers no such loss to the extent that SSDI
income received for the vaccine-related injury would
substitute for income that [she] would otherwise have
received from an employer.” Appellant’s Br. 13. Because
Heinzelman previously earned $49,888 per year and is
eligible for $20,412 per year in SSDI, the government
claims that she has an anticipated loss of earnings of only
$29,476 per year. According to the government, this
interpretation is consistent with the Vaccine Act’s goal of
placing petitioners in the position they would have been,
but for the injury.
In support of its position, the government relies pri-
marily on a special master’s decision: Jelly v. Secretary of
Health & Human Services, No. 94-646V, 1998 U.S. Claims
LEXIS 87 (Fed. Cl. Spec. Mstr. Apr. 6, 1998). 3 In Jelly,
the special master addressed whether, in calculating the
3 The government also cites Zatuchni v. Secretary of
Health & Human Services, No. 94-58V, 2006 U.S. Claims
LEXIS 127 (Fed. Cl. Spec. Mstr. May 10, 2006) and Ireton
v. Secretary of Health & Human Services, No. 90-3975V,
1994 U.S. Claims LEXIS 168 (Fed. Cl. Spec. Mstr. Aug.
11, 1994) – neither of which is particularly helpful to its
position on this point. For example, in Zatuchni, the
government argued that the petitioner’s lost earnings
under § 15(a)(3)(A) needed to be adjusted for income
taxes, employment taxes, and SSDI payments petitioner
received because she was unable to work. 2006 U.S.
Claims LEXIS 127, at *20-21. Because the petitioner
“agreed that such adjustments must be made,” the issue
was never adjudicated. Id. at *21. Accordingly, Zatuchni
– which was a special master’s decision – is of little proba-
tive value here. The government’s reliance on Ireton is
misplaced because, as discussed below, that case refers to
§ 15(g).
9 HEINZELMAN v. HHS
petitioner’s “lost earnings” under § 300aa-15(a)(3), he
should reduce the petitioner’s gross earnings by the
amount of taxes she likely would have paid had she
received those earnings. 1998 U.S. Claims LEXIS 87, at
*3. At the outset, the special master stated that “the
obvious purpose of an award for ‘lost earnings’ under the
Program is to put the petitioner in the same financial
situation where she would have been ‘but for’ the vaccine-
caused injury.” Id. at *5. Given this purpose, the special
master noted that the tax reduction seemed “conceptually
appropriate, in order to ensure that petitioner will receive
only those amounts that she would have actually received
had she been able to work.” Id. at *5-6. After reviewing
the statutory context, the special master concluded that,
“when an award for lost earnings is made under § 300aa-
15(a)(3)(A) . . . only ‘after-tax’ lost earnings should be
awarded.” Id. at *17.
According to the government, “[j]ust as taxes must be
taken into account in determining the amount of a peti-
tioner’s lost wages, so must substitute income be consid-
ered.” Appellant’s Reply 4. To the contrary, although this
court has recognized that it is appropriate to deduct
federal and state income taxes when “determining a lost
earnings award under the Vaccine Act” – see Euken v.
Secretary of Health & Human Services, 34 F.3d 1045,
1048 (Fed. Cir. 1994) – it does not follow that SSDI bene-
fits should likewise be deducted. Indeed, nothing in the
statute supports equating the two.
First, in calculating “lost earnings,” it makes sense to
consider net rather than gross earnings, since the amount
received at any given point in an earnings history would
necessarily be less taxes owed or deducted. This is consis-
tent with the “generally recognized actuarial principles”
incorporated into § 15(a)(3)(A). SSDI is not something
which is netted out so as to reflect actual earnings, how-
HEINZELMAN v. HHS 10
ever; it is a compensatory figure designed to compensate
for a loss of actual earnings. Thus, if SSDI is to be con-
sidered at all it would need to be characterized as an
offset to earnings, an offset which would be deducted
under § 15(g).
Looking to the overall structure of the Vaccine Act, we
agree with the special master and the Court of Federal
Claims that § 15(a) gives compensation while § 15(g)
provides for offsets where compensation is made via one of
the enumerated programs. This reading flows from the
text and structure of the statute, and is consistent with
the underlying purpose of the Vaccine Act, which is “to
provide compensatory damages for vaccine-related inju-
ries.” Saunders, 25 F.3d at 1035.
Treating SSDI payments as a deduction under § 15(a)
is inconsistent with the well-established principle that we
must “give effect, if possible, to every clause and word of a
statute and should avoid rendering any of the statutory
text meaningless or as mere surplusage.” Sharp v. United
States, 580 F.3d 1234, 1238 (Fed. Cir. 2009) (quoting
Duncan v. Walker, 533 U.S. 167, 174 (2001) (internal
quotation marks omitted)). If, as the government argues,
compensation program payments are factored into the lost
earning calculation under § 15(a)(3)(A), then there would
be no need for a separate provision – § 15(g) – that spe-
cifically identifies the types of offsets that reduce the
amount of compensation recoverable under the Vaccine
Act. We are also mindful that we should “avoid constru-
ing a statute in a way which yields an absurd result.”
Hellebrand v. Sec’y of Health & Human Servs., 999 F.2d
1565, 1570-71 (Fed. Cir. 1993). The government’s position
is at odds with this principle, and we decline to adopt an
approach that would have payments under certain com-
pensation programs reduce the amount of lost earnings
under § 15(a)(3)(A), while others – such as state workers’
11 HEINZELMAN v. HHS
compensation program awards – are deducted under
§ 15(g). Simply, there is no textual support for the gov-
ernment’s position that SSDI payments should reduce
Heinzelman’s lost earnings compensation under
§ 15(a)(3)(A).
Finally, the government argues that the legislative
history supports its position that § 300-15(a)(3)(A) should
take into account SSDI benefits. Specifically, the gov-
ernment points to the following language in the legisla-
tive history: “[p]ayment of compensation is not to be made
for items or services for which payment has been made or
can be expected to be made by other public or private
entities.” H.R. Rep. No. 99-908, 99th Cong., 2d Sess.
(1986), reprinted in 1986 U.S.C.C.A.N. 6344, 6363. The
government omits the very next sentence, however, which
states: “Thus, if an insurance program or a health main-
tenance organization pays or is obligated to pay for health
care services, the Program is not to pay for these same
services.” Id. In other words, closer review of the portion
of the legislative history cited reveals that it does not
specifically address lost earnings under § 15(a)(3)(A), and
instead is geared towards the types of insurance programs
and health maintenance organizations discussed under
§ 15(g). Accordingly, the legislative history does not alter
our reading of the plain language of the statute. See
Glaxo Operations UK Ltd. v. Quigg, 894 F.2d 392, 396
(Fed. Cir. 1990) (noting that, where the “statutory lan-
guage is unambiguous, we consider the legislative history
of the Act, but only to determine whether a clear intent
contrary to the plain meaning exists”).
Because neither the text of the Vaccine Act nor the
legislative history suggests that SSDI benefits should be
deducted from a lost earning calculation under
§ 15(a)(3)(A), we agree with the Court of Federal Claims
that Heinzelman’s eligibility for SSDI benefits should not
HEINZELMAN v. HHS 12
be considered when deciding her “loss of earnings” under
that provision.
B. Section 15(g)
Given our conclusion that SSDI benefits do not reduce
the amount of lost earnings under § 15(a), we turn our
attention to § 15(g), which enumerates when a petitioner
is not entitled to compensation under the Vaccine Pro-
gram because certain other programs provide compensa-
tion. In relevant part, the statute requires an offset for
payments made “under any State compensation program,
under an insurance policy, or under any Federal or State
health benefits program” other than Medicaid. § 300aa-
15(g). 4 It is undisputed that the offset provision in § 15(g)
only applies here if SSDI benefits qualify as a “Federal . . .
health benefits program.” See Oral Argument at 5:20,
available at http://www.cafc.uscourts.gov/oral-argument-
recordings/2011-5127/all (“I do believe that is the only
category that federal social security disability insurance
benefits would fall into.”). 5
4 The statute provides, in part, that “[p]ayment of
compensation under the Program shall not be made for
any item or service” to the extent it has been made “under
any State compensation program, under an insurance
policy, or under any Federal or State health benefits
program.” § 300aa-15(g) (emphasis added). When asked
at oral argument whether wages are included within the
reference to “any item or service,” counsel for the govern-
ment responded: “Yes your honor. I do believe that the
item or service language is broad enough to include the
benefit at issue here.” Oral Argument at 1:50, available
at http://www.cafc.uscourts.gov/oral-argument-
recordings/2011-5127/all. Accordingly, the government
waived any argument that lost wages do not qualify as an
“item or service” under § 15(g).
5 At oral argument, counsel further indicated that
the government “is not taking the position that SSDI . . .
13 HEINZELMAN v. HHS
The Court of Federal Claims affirmed the special
master’s decision that SSDI does not qualify as a “Federal
. . . health benefits program.” Specifically, the court found
that: (1) SSDI is not a health benefits program “simply
because it requires an applicant to have a physical dis-
ability”; (2) unlike Medicare, “SSDI does not provide
applicants with health insurance benefits”; (3) SSDI
compensates applicants for loss of income since they are
disabled and no longer able to work; and (4) “SSDI does
not necessarily pay for an applicant’s medical expenses.”
Heinzelman, 98 Fed. Cl. at 817. The court further noted
that, just because § 15(g) exempts one Title of the Social
Security Act – Medicaid – “does not mean that all other
Titles should be considered ‘Federal . . . health benefits
program’ offsets.” Id. Accordingly, the court agreed with
the special master that Heinzelman’s SSDI payments
should not offset the compensation she is entitled to
receive under § 15(a).
On appeal, the government contends that SSDI is a
“Federal . . . health benefits program” because it is related
to an individual’s health status. In particular, the gov-
ernment argues that: (1) Congress acknowledged a rela-
tionship between SSDI and health status, since an
individual becomes eligible to receive Medicare benefits
after twenty-four months of eligibility for SSDI benefits;
and (2) the “Court of Federal Claims’ narrow reading of
the phrase ‘health benefits program’ is . . . inconsistent
with the principle that the Vaccine Program is generally a
secondary payer.” Appellant’s Br. 19. The government’s
arguments are not well-taken.
As the Court of Federal Claims recognized, “SSDI is
not a ‘Federal . . . health benefits program’ simply because
comes under the rubric of an insurance policy under (g).”
See Oral Argument at 21:22.
HEINZELMAN v. HHS 14
it requires an applicant to have a physical disability.”
Heinzelman, 98 Fed. Cl. at 817. This is particularly true
given the nature of SSDI benefits. Although payment of
SSDI benefits is predicated on the existence of a medical
disability, SSDI compensation is unlike Medicare, Medi-
caid, or other “health benefits,” in that it is paid to benefi-
ciaries as compensation for their inability to earn income.
The amount of compensation is based on the applicant’s
earning history – not on the severity of her underlying
medical condition. See Heinzelman, 2010 U.S. Claims
LEXIS 333, at *4 (“Based upon Ms. Heinzelman’s earning
history, the amount of SSDI payment for which Ms.
Heinzelman is eligible is $1,701 per month.”). And, the
fact that a person becomes eligible for Medicare after
twenty-four months of SSDI eligibility actually cuts
against the government’s position, because it suggests
that there are two separate programs: Medicare for health
insurance and SSDI for compensation.
According to the government, Vaccine Program
awards have consistently “been offset based on a peti-
tioner’s eligibility for other government benefits.” Appel-
lant’s Br. 19-20. To support this argument, the
government directs our attention to Ireton v. Secretary of
Health & Human Services, No. 90-3975V, 1994 U.S.
Claims LEXIS 168 (Fed. Cl. Spec. Mstr. Aug. 11, 1994),
which is readily distinguishable on its facts.6
6 The government also points to Metzger v. Secre-
tary of Health & Human Services, No. 89-74, 1990 U.S. Cl.
Ct. LEXIS 248 (Cl. Ct. Spec. Mstr. June 15, 1990). In
Metzger, there was evidence that the petitioner would be
entitled to receive monthly Social Security Disabled Adult
Child’s benefits which would “cover the costs of food,
lodging and other basic living expenses.” Id. at *29. To
avoid double recovery, the special master reduced the
petitioner’s amount of residential placement benefits
15 HEINZELMAN v. HHS
Although it appears that the government cites Ireton
as an example of a case in which a special master offset a
Vaccine award due to eligibility for workers’ compensa-
tion, careful review of the decision reveals that it was
focused primarily on a separate issue: whether the peti-
tioner was entitled to assert a Vaccine Act claim where
she previously filed a claim for benefits in a specialized
workers’ compensation tribunal. See Ireton, 1994 U.S.
Claims LEXIS 168, at *7. The special master concluded
that the petitioner’s previous workers’ compensation filing
did not qualify as a “civil action,” and thus did not pre-
clude her from asserting a claim under the Vaccine Act.
Id. As additional support for his decision, the special
master noted that “any benefits that a petitioner has
gained from a workers’ compensation system will simply
act as an ‘offset’ to reduce the amount of the Program
award.” Id. at *25.
The government’s reliance on Ireton is misplaced.
Unlike SSDI benefits, which are not included in § 15(g),
workers’ compensation is a “State compensation program”
which is specifically identified as an offset in the statute.
Indeed, at oral argument, counsel for the government
agreed that workers’ compensation is a “State compensa-
tion program” under § 15(g). See Oral Argument at 15:07.
Although there is some force to the government’s ar-
gument that the Vaccine Program is generally a secon-
under the Vaccine Act by the amount of residential bene-
fits he would receive in Disabled Adult Child’s benefits.
Id. That case – which is not binding on this court – is not
particularly helpful here because: (1) residential place-
ment benefits are governed by § 15(a)(1) rather than
§ 15(a)(3), and do not involve compensation for lost in-
come; and (2) the special master did not explain the
analysis under § 15(g).
HEINZELMAN v. HHS 16
dary payor, we find that this general principle is insuffi-
cient to overcome the lack of textual support for the
government’s position in this appeal. Looking to the
language of § 15(g), Congress specifically enumerated the
types of funding sources that would offset compensation
awards. In relevant part, Congress included payments
under a “State compensation program” or “any Federal or
State health benefits program.” If Congress had wanted
to include SSDI benefits as an offset under § 15(g), it
could have done so.
For example, because SSDI benefits are compensatory
in nature, Congress could have said that payments under
“any Federal or State compensation program” reduce the
amount of compensation under the Vaccine Program.
Congress chose, however, to use only the word “State” –
not “Federal.” It is well-established that, “[w]here Con-
gress includes particular language in one section of a
statute but omits it in another . . ., it is generally pre-
sumed that Congress acts intentionally and purposely in
the disparate inclusion or exclusion.” Keene Corp. v.
United States, 508 U.S. 200, 208 (1993) (quoting Russello
v. United States, 464 U.S. 16, 23 (1983)). While Congress
certainly knew how to include both state and federal
programs when it wanted to, as it used the phrase “Fed-
eral or State health benefits program” later in the same
provision, it declined to do so with respect to compensa-
tion programs. See Caraco Pharm. Labs., Ltd. v. Novo
Nordisk A/S, 132 S. Ct. 1670, 1682 (2012) (“So if we
needed any proof that Congress knew how to say ‘not any’
when it meant ‘not any,’ here we find it.”); see also Bohac
v. Dep’t of Agric., 239 F.3d 1334, 1342 (Fed. Cir. 2001)
(“This comparison illustrates that Congress knows how to
provide damages for non-pecuniary losses, including pain
and suffering, when it so desires.”).
17 HEINZELMAN v. HHS
Based on the foregoing, we agree with the Court of
Federal Claims that SSDI does not constitute a “Federal .
. . health benefits program” under § 15(g). While we
recognize that § 15(g) was designed to avoid overcompen-
sation in certain circumstances where payments are made
from other programs, we decline to read offsets into the
statutory text that were not specifically included therein.
Because nothing in the statute provides that SSDI bene-
fits should be deducted from a compensation award under
the Vaccine Act, we conclude that Heinzelman’s antici-
pated SSDI payments should not offset the compensation
she was granted under § 15(a).
C. Sovereign Immunity
In the alternative, the government argues that the
Vaccine Act is a limited waiver of sovereign immunity
such that, if the meaning of § 300aa-15 is unclear, it
should be construed narrowly to limit the government’s
waiver of immunity. See United States v. Nordic Vill.,
Inc., 503 U.S. 30, 34 (1992) (“[T]he Government’s consent
to be sued must be construed strictly in favor of the
sovereign . . . and not enlarged . . . beyond what the
language requires . . .” (citation and internal quotations
omitted)). Both the special master and the Court of
Federal Claims found that, because there is no ambiguity
in the statute, the doctrine of sovereign immunity does
not apply. We agree.
Because the plain language of the statute reveals that
Congress did not include SSDI benefits as an offset to
compensation under the Vaccine Act, resort to sovereign
immunity principles is neither necessary nor proper. See
Richlin Sec. Serv. Co. v. Chertoff, 553 U.S. 571, 590 (2008)
(“There is no need for us to resort to the sovereign immu-
nity canon because there is no ambiguity left for us to
construe.”); see also Zatuchni v. Sec’y of Health & Human
HEINZELMAN v. HHS 18
Servs., 516 F.3d 1312, 1323 (Fed. Cir. 2008) (“[W]e do not
find that the government has offered a ‘plausible’ reading
of the statute . . . as endorsement of its position would
require us to ignore what we see as the plain reading of
42 U.S.C. § 300aa-15(a) and (b) . . . . The doctrine of
sovereign immunity does not require such a result.”
(citation omitted)). Accordingly, the government’s reli-
ance on the doctrine of sovereign immunity is misplaced.
CONCLUSION
For the foregoing reasons, and because we find that
the government’s remaining arguments are without
merit, the final judgment of the Court of Federal Claims
is affirmed.
AFFIRMED