In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS 

No. 18-1861V 

UNPUBLISHED 

CHARLES BAKEMAN, 

 Petitioner, 

v. 

SECRETARY OF HEALTH AND 

HUMAN SERVICES, 

 Respondent. 

Chief Special Master Corcoran 

Filed: February 19, 2020 

Special Processing Unit (SPU); 

Decision on Motion to Dismiss; 

Uncovered Vaccine; H1N1 Vaccine; 

Guillain-Barre Syndrome (GBS) 

 

Stephen I. Leshner, Phoenix, AZ, for Petitioner. 

Heather Lynn Pearlman, U.S. Department of Justice, Washington, DC, for respondent. 

DECISION1

 On December 4, 2018, Charles Bakeman filed a petition for compensation under 

the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,

2 (the 

“Vaccine Act”). Petitioner alleges that he “received a Novartiz [sic] influenza vaccine on 

February 2, 2010,” and thereafter suffered Guillain-Barré syndrome (“GBS”). Petition at 

1. This case was assigned to the Special Processing Unit of the Office of Special 

Masters. 

On December 30, 2019, Respondent filed a motion to dismiss the petition pursuant 

to RCFC 12(b)(6) for failure to state a claim upon which relief may be granted. (ECF No. 

20). For the reasons set forth below, Respondent’s motion is GRANTED, and this claim 

is hereby DISMISSED. 

 

1 Although I have not formally designated this Decision for publication, I am required to post it on the United 

States Court of Federal Claims' website because it contains a reasoned explanation for the action in this 

case, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal 

Management and Promotion of Electronic Government Services). This means the Decision will be 

available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 

14 days to identify and move to redact medical or other information, the disclosure of which would constitute 

an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this 

definition, I will redact such material from public access. 

2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease 

of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa 

(2012). 
2

I. Procedural History 

Mr. Bakeman filed his petition on December 4, 2018. (ECF No. 1). Over the next 

month, he filed medical records and a Statement of Completion. See Exhibits 1-19 (ECF 

Nos. 4-10); Statement of Completion, filed Jan. 4, 2019 (ECF No. 11). 

 After reviewing the records in this case, Respondent filed a status report stating 

that “petitioner appears to have received only the H1N1 vaccination on February 2, 2010, 

which is not covered under the Program.” (ECF No. 17). Respondent stated that he 

planned to file a motion to dismiss in 60 days. Id. This request was granted, and Petitioner 

was permitted time to file a response to the motion. (ECF No. 18). 

On December 30, 2019, Respondent filed the promised Motion to Dismiss (“Mot. 

to Dismiss”). (ECF No. 20). Respondent argued that the vaccine at issue in this case is 

the H1N1 monovalent influenza vaccine, which is not included in the Vaccine Injury Table 

in the Vaccine Act, and therefore the claim must be dismissed. Id. at 2. Petitioner filed a 

response arguing that because of the lack of sufficient notice provided in the Vaccine 

Injury Table, I should exercise my “lawful discretion in equity and deny Respondent’s 

Motion to Dismiss.” Petitioner’s Response to Motion to Dismiss (“Pet. Resp.”) at 1-2. (ECF 

No. 21). 

II. Analysis 

A petitioner must demonstrate that he “received a vaccine set forth in the Vaccine 

Injury Table.” Section 11(c)(1)(a). There is no question that the H1N1 monovalent vaccine 

is not covered under the Vaccine Act. See C.F.R. § 100.3; Fitzgerald v. Sec’y of Health 

& Human Servs., No. 12-493V, 2012 WL 6861329 (Fed. Cl. Spec. Mstr. Dec. 19, 2012); 

Aguayo v. Sec’y of Health & Human Servs., No. 12-563V, 2013 WL 441013 (Fed. Cl. 

Spec. Mstr. Jan. 15, 2013); Sabin v. Sec’y of Health & Human Services, No. 13-624V, 

2014 WL 2979385 (Fed. Cl. Spec. Mstr. Feb. 7, 2014). Rather, only the seasonal 

influenza vaccine is a covered vaccine under the Vaccine Act. 42 C.F.R. § 100.3(a)(XIV); 

see also 76 Fed. Reg. 36367 (June 22, 2011).3 

The evidence filed in this case demonstrates that Petitioner received an inactivated 

H1N1 vaccine on February 2, 2010. Ex. 1. The VAERS Report he filed also identifies 

“H1N1 Flu vaccine” as the vaccine he received before the onset of his GBS. Pet. Ex. 6 at 

1. In addition, multiple contemporaneous records identify H1N1 as the vaccine Petitioner 

received. See, e.g., Ex. 2 at 168 (February 18, 2010 hospital discharge summary) and 

463 (February 12, 2010 presentation to the Emergency Department). As such, Petitioner 

is unable to establish that he received a covered vaccine. 

 

3 At the time of Petitioner’s 2010 vaccination, the Vaccine Injury Table included coverage only for trivalent 

influenza vaccines; all other seasonal flu vaccines were included on the Table as of November 12, 2013. 

See 42.C.F.R. § 100.3(e)(6). The H1N1 virus was not included as a component of the 2009-2010 

formulation of the trivalent influenza vaccine. See Karol v. Sec’y of Health & Human Servs., No. 12-433V, 

2012 WL 3744655 (Fed. Cl. Spec. Mstr. July 27, 2012).
3

Petitioner's argument in his response asks me to use my discretion and deny the 

motion to dismiss because of the lack of sufficient notice in the Vaccine Injury Table that 

the H1N1 vaccine is not covered. Pet. Res. at 1-2. Unfortunately, because the implicated 

vaccine, a monovalent H1N1 vaccine, is not covered under the Vaccine Act, I have no 

discretion to allow this claim to proceed. Thus, this claim must be dismissed. 

III. Conclusion 

 Petitioner has failed to demonstrate that he was injured by a vaccine covered 

under the Vaccine Program. This case is dismissed for failure to state a claim upon 

which relief can be granted. The clerk shall enter judgment accordingly.4

IT IS SO ORDERED.

 

 s/Brian H. Corcoran 

 Brian H. Corcoran 

 Chief Special Master 

 

4 If Petitioner wishes to bring a civil action, he must file a notice of election rejecting the judgment 

pursuant to § 21(a) “not later than 90 days after the date of the court’s final judgment.”