NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

BERNADETTE ROGERS, AS LEGAL 

REPRESENTATIVE FOR WILLIE LEE WILLIAMS,

Petitioner-Appellant

v.

SECRETARY OF HEALTH AND HUMAN 

SERVICES,

Respondent-Appellee

______________________ 

2023-2176

______________________ 

Appeal from the United States Court of Federal Claims 

in No. 1:22-vv-00510-MHS, Judge Matthew H. Solomson.

______________________ 

Decided: May 9, 2024

______________________ 

BERNADETTE ROGERS, Riverview, FL, pro se.

 CLAUDIA BARNES GANGI, Torts Branch, Civil Division, 

United States Department of Justice, Washington, DC, for 

respondent-appellee. Also represented by ALEXIS B.

BABCOCK, BRIAN M. BOYNTON, C. SALVATORE D’ALESSIO,

HEATHER LYNN PEARLMAN. 

 ______________________ 

Case: 23-2176 Document: 33 Page: 1 Filed: 05/09/2024
2 ROGERS v. HHS

Before LOURIE, SCHALL, and TARANTO, Circuit Judges.

PER CURIAM. 

This is a case brought under the National Childhood 

Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34, as 

amended (“the Vaccine Act”). Bernadette Rogers, acting as 

legal representative of her mother, Willie Lee Williams, appeals from a decision of the United States Court of Federal 

Claims (“Claims Court”) denying her petition to review the 

Special Master’s dismissal of her claim. Rogers v. Sec’y of 

Health & Hum. Servs., No. 22-510V (Fed. Cl. Jul. 14, 2023), 

App. 5–15 (filed under seal); Rogers v. Sec’y of Health & 

Hum. Servs., No. 22-510V, 2023 WL 4637147 (Fed. Cl. 

Spec. Mstr. Apr. 11, 2023), App. 16–21 (“Decision”). We affirm. 

BACKGROUND

Williams, at age ninety-one, was hospitalized at Tampa 

General Hospital on February 2, 2022. Decision at *1–2. 

Rogers alleges that, while in the hospital, Williams received an influenza vaccine and a polysaccharide pneumococcal vaccine. Id. Williams was subsequently discharged 

from the hospital on February 15, 2022, before passing

away on February 22, 2022. Appellant’s Informal Br. at 1, 

5. 

Rogers petitioned for compensation under the National 

Childhood Vaccine Injury Compensation Program (“Vaccine Program”). According to Rogers, the alleged influenza 

and polysaccharide pneumococcal vaccines contributed to 

William’s death. Decision at *1. The Secretary argued that 

the Vaccine Program does not cover the polysaccharide 

pneumococcal vaccine and that there was no evidence that 

Williams had received an influenza vaccine in February 

2022. Id. at *2.

The Special Master found that although the evidence 

showed that Williams had received the pneumococcal polysaccharide vaccine, the Vaccine Program “expressly 

Case: 23-2176 Document: 33 Page: 2 Filed: 05/09/2024
ROGERS v. HHS 3

excluded” said vaccine. Decision at *2 (citing National Vaccine Injury Compensation Program: Addition of Pneumococcal Conjugate Vaccines to the Vaccine Injury Table, 66 

Fed. Reg. 28166 (May 22, 2001)). He therefore concluded 

that “Rogers cannot receive compensation on a claim based 

on the polysaccharide vaccine through the Vaccine Program, and the claim must be dismissed.” Id. (collecting 

cases). 

Regarding the alleged influenza vaccine, the Special 

Master found that the “supplemental records from Tampa 

General Hospital indicat[e] that Ms. Williams did not receive the flu vaccine in February 2022.” Id. (citing App.

2431); see also id. at *3 (“[T]he evidence shows that Ms. Williams did not receive the alleged flu vaccine.”). Specifically, 

he found that the evidence showed that administration of 

the influenza vaccine was deferred and ultimately discontinued due to Williams’s discharge from the hospital. Appellant’s Informal Br. at 1 (acknowledging that “records 

dated 2/2022 states Fluvaril discontinued at discharge”); 

id. at 5 (supplemental hospital records indicating the influenza vaccine had been “Discontinued” due to “Patient Discharge”); App. 224 (finding that the “discharge report 

indicates that Ms. Williams ‘deferred’ the administration 

of the flu vaccine”). Because Rogers was unable to show 

that Williams “received a vaccine set forth in the Vaccine 

Injury Table,” 42 U.S.C. § 300aa-11(c)(1)(A), her case was 

“dismissed for failure to present evidence (medical records).” Decision at *3. 

Rogers filed a petition for review by the Claims Court. 

In addition to restating her claims presented to the Special 

Master, Rogers made various other allegations, including 

criminal and tortious acts. Those claims are not generally 

appropriate for inclusion in a Vaccine Act petition, but the 

1 App. 243, filed under seal, is publicly available at 

Appellant’s Informal Br. at 5. 

Case: 23-2176 Document: 33 Page: 3 Filed: 05/09/2024
4 ROGERS v. HHS

court concluded that even if it generously read Petitioner’s 

allegations as constituting a pro se complaint, it lacked jurisdiction over her additional claims. App. 10–11, 14. The 

court also affirmed the Special Master’s denial of Rogers’s 

motion for recusal and his dismissal of Rogers’s claims. 

App. 12–13. 

Rogers timely appealed. We have jurisdiction pursuant to 42 U.S.C. § 300aa-12(f). 

DISCUSSION

We review de novo a ruling by the Claims Court on a 

special master’s decision to grant or deny entitlement to 

compensation under the Vaccine Act. Lampe v. Sec’y of 

Health & Hum. Servs., 219 F.3d 1357, 1360 (Fed. Cir. 2000) 

(citing Bradley v. Sec’y of Health & Hum. Servs., 991 F.2d 

1570, 1574 (Fed. Cir. 1993) and Hines v. Sec’y of Health & 

Hum. Servs., 940 F.2d 1518, 1523–24 (Fed. Cir. 1991)). The 

Claims Court may only set aside a special master’s findings 

of fact or conclusions of law if they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance 

with law.” 42 U.S.C. § 300aa-12(e)(2)(B). Findings of fact 

receive deferential review under an “arbitrary and capricious” standard, legal conclusions are reviewed de novo under the “not in accordance with the law” standard, and 

discretionary rulings are reviewed for “abuse of discretion.” 

Munn v. Sec’y of Dep’t. of Health & Hum. Servs., 970 F.2d 

863, 870 n.10 (Fed. Cir. 1992). We apply the same deference when reviewing the Claims Court’s judgment affirming that of a special master. Id. at 870. 

Rogers argues that the Special Master erred in dismissing her appeal. Namely, she argues that Williams received “three vaccines . . . without consent,” which she 

identifies as “Fluvaril Remdesivir and Pnemonvax.” Appellant’s Informal Br. at 1. She argues that the Secretary 

“could not prove [that Williams] was not given vaccines.” 

Id. The Secretary responds that (1) there is no such thing 

as a “Remdesivir” vaccine, (2) it is undisputed that the 

Case: 23-2176 Document: 33 Page: 4 Filed: 05/09/2024
ROGERS v. HHS 5

Pnemovax vaccine is a pneumococcal polysaccharide vaccine not covered by the Vaccine Act, and (3) Rogers’s arguments regarding the influenza vaccine amount to little 

more than a request to reweigh the evidence. Appellee’s 

Br. at 14–15.

We agree with the Secretary. Remdesivir is not a vaccine, but rather an antiviral treatment for COVID-19, so 

even if Williams had received it, it would not be covered by 

the Vaccine Program. Rogers also made no allegations regarding Remdesivir before the Special Master or the 

Claims Court. It is further clear that, even though the record supports that Williams received a pneumococcal polysaccharide vaccine, such vaccine was explicitly excluded 

from the Vaccine Program, and it therefore does not entitle 

the appellant to compensation. National Vaccine Injury 

Compensation Program: Addition of Pneumococcal Conjugate Vaccines to the Vaccine Injury Table, 66 Fed. Reg. at 

28166 (“[P]olysaccharide-type pneumococcal vaccines are 

not covered under the VICP or included on the Table.”).

With regard to the alleged influenza vaccine, Rogers appears to argue that the Special Master applied the incorrect legal standard in analyzing her claims by arguing that

he failed to consider that the Secretary “could not prove 

[Williams] was not given” the influenza vaccine. Appellant’s Informal Br. at 1. We disagree. It was Rogers’s burden to prove receipt of a vaccine by a preponderance of the 

evidence. 42 U.S.C. §§ 300aa-11(c)(1), -13(a)(1)(A); 

Moberly ex rel. Moberly v. Sec’y of Health & Hum. Servs., 

592 F.3d 1315, 1322 (Fed. Cir. 2010). The Special Master 

therefore reached his determination that Rogers had not 

met her burden in accordance with the law. 

And, regardless, the Special Master did determine that 

the evidence showed “that the [influenza] vaccine was not 

administered.” Decision at *3. As the Special Master 

found, the record evidence not only failed to show that Williams received an influenza vaccine, but it affirmatively 

Case: 23-2176 Document: 33 Page: 5 Filed: 05/09/2024
6 ROGERS v. HHS

showed that Williams did not receive an influenza vaccine. 

See, e.g., id. (citing App. 243). The Special Master’s conclusion that Williams did not receive an influenza vaccine during her February 2022 hospital stay was therefore not 

arbitrary or capricious. It is within a special master’s discretion to weigh evidence, and “reversible error is ‘extremely difficult to demonstrate’” unless the special master 

failed to consider the relevant evidence of record, drew implausible inferences, or failed to provide a rational basis for 

the decision. Lampe, 219 F.3d at 1360 (citation omitted); 

see also Munn, 970 F.2d at 870 (noting that the arbitrary 

and capricious standard is “well understood to be the most

deferential possible”). The Special Master’s decision shows 

that he thoughtfully considered the relevant evidence in 

accordance with the law and reached a rational conclusion 

supported by the record. 

CONCLUSION

We have considered Rogers’s remaining arguments but 

find them unpersuasive. For the foregoing reasons, we affirm the judgment of the Claims Court.

AFFIRMED

COSTS

No costs.

Case: 23-2176 Document: 33 Page: 6 Filed: 05/09/2024