# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: July 14, 2021

* * * * * * * * * * * * * * *

JAMAR SIMMONS

, * UNPUBLISHED

*

Petitioner, * No. 20

- 26V

*

v. * Special Master Dorsey

*

SECRETARY OF HEALTH * Petitioner ’ s M o tion for Decision D i s m i s s i n g

AND HUMAN SERVICES, * H is Petition ; Influen za ( “ Flu ” ) V accin e ;

* S houlder I njury R elated to V accine

Respondent. * A dministration (“SIRVA”)

.

*

* * * * * * * * * * * * * * *

Bridget M c Cullough

, Muller Brazil, LLP

, Dresher, P A , for p etitioner.

Sarah Duncan , United States Department of Justice, Washington, DC, for respondent.

DECISION 1

On January 9 , 20 20

, Jamar Simmons (“ petitioner”) filed a petition for compensation

under the National Vaccine Injury Compensation Progr am (“ the Program”) 2 alleging that as a

result of receiving a n i nfluenza ( “ flu ” ) vaccination a dministered on December 24, 2018

, he

suf fered a right shoulder injury related to vaccine administration (“SIRVA”)

. Petition at 1 (ECF

No. 1)

. The information in the record, however, does not show entitlem ent to an award under the

Program.

On July 14, 2021 , petitioner moved for a decision dismissing h is case , stating that

1 Because this Decision contains a reas o ned explanat ion for the action in this case, the

unders igned is requir ed to post it on the Un ited States Court of Fed er al Cla ims’ we bsite in

acc ordance with the E

- Government Act of 2002. 44 U.S

. C. § 3501 note (2012) ( Federal

Management and Promoti on of E l ectronic Gov ernment Services). This means the Decision will

be availa ble to anyone with acce ss to the I nternet. In ac cordan ce with Vaccine Rul e 18(b),

petitioner has 14 days to identify and mo v e t o redact medical o r other information, the disclos ure

of w hich would c onstitute an unwarranted invasion of privac y. If, upon re view, the undersigned

a grees that the iden tifie d materi al fits within this definition, the undersigned will redact such

mate r ial from public acces s.

2 The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, 42

U .S.C. §§ 30 0 aa

- 10 et seq

. (hereinafter “Vaccine Act” or “the Act ”). Hereafte r, indivi dual

section references will be to 42 U.S.C. § 300aa of t he Act.2

[a] n invest igation of the supporting facts and science has demonstrated to the

[p] etition er that he will be unable to prove that he is entitled to compensat ion in

the Vaccine Program. In these circumstances, to proceed any further would be

unreas onable, and would waste the resources of the Court, the respondent and the

Vaccine Program.

Pet itioner ’ s Mot ion for Decision D ismissing H is Petition at ¶¶ 1

- 2

. Petitioner states th at he

understands that a decision by the Special Master will result in a judgment agains t h im , and that

he has been advised that such a judgment will end all of h is rights under the V accine Act

. Id. at

¶ 3 . Petitioner states that he understand s that he m ay apply for costs once h is case is dismissed

and judgment is enter ed against h im and that respondent ex pressly reserves the right to question

good faith and reasonable basis of h is c laim and oppose h is application for cost if appro priate

. Id. at ¶ 4

. Additionally, p etitioner intends to protect h is right to file a civil action , and pursu an t

to the Act, he intends to elect to reject the Vaccine Program judgment against h im and elect t o

file a civil action

. Id. at ¶ 6

.

To receive compensation under t he Program, petitioner must prove either (1) that he

suffered a “Tab le Injury”

— i.e., a n inju ry falling within the Vaccine Inj ury Table

— corresponding

to the vaccination, or ( 2) that he su ffered an injury that was actually caused by the vaccination.

See §§ 13(a)(1)(A) and 11(c)(1). The records submitted by petitioner show that he does not meet

th e statutory requirement under 4 2 U.S.C. § 300aa

- 11(c)(1)(D)(i) to establish ent itlement to

com pensation. The Federal Circuit has explained tha t the eligibility req uirements in Section

11(c) are not mere pleading requirements or m atters of proof at trial, but instead are “threshold

crit eri[a] for seeking entry into the compensation p rogram.” Black v. Sec ’ y of Health & Hum

. Servs. , 93 F.3d 781, 785

- 87 (Fed. Cir. 199 6).

Accordingly, i n light of petitioner ’ s motion and a review of the record, the unders i gned

fi nds that petitioner is not entitled to compensation. Thus, this case is dismissed . The Clerk of

Court shall enter judgment accordingly.

IT IS S O ORDERED.

s/ Nor a Beth Dorsey

Nora Be th Dorsey

Spe cial Master