Denial of Motion for Review – Petitioner not an “Employee” of U.S.


Griffin v. HHS, (Fed. Cl. Dec. 7, 2015) (Bruggink, J)

Denial of Motion for Review – Petitioner not an “Employee” of U.S.

Respondent’s motion for summary judgment, arguing that the Petitioner was not covered by the Vaccine Act, had been granted.  The Petitioner was an independent contractor with DOD, who received an influenza vaccine in Afghanistan.  The special master had analyzed other statutory schemes, and the common law agency rule, and determined the Petitioner was not an employee for purposes of the Vaccine Act, and granted Respondent’s motion for summary judgment.

On appeal, both sides argued that the special master applied the wrong legal test to define employee for Vaccine Act purposes, although Respondent agreed with the result.  The reviewing judge agreed with Respondent and held that the USC Title V definition of federal employee should have been used, under which Petitioner also would not have been considered an employee.

The reviewing judge also rejected Petitioner’s argument that the judge improperly consulted certain reference materials without notice to Petitioner, such as the Restatement, case law, dictionaries, and several government or military websites, because these were appropriate topics for judicial notice.  Also, Petitioner failed to show that the research violated fundamental fairness or was crucial to the special master’s decision, thus the research was innocuous.

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