# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: June 30, 2021

* * * * * * * * * * * * * UNPUBLISHED

BELARMINA FLORES

- AYALA

, *

* No. 21

- 1163 V

Petitioner, *

v. * Special Master Gowen

*

SECRETARY OF HEALTH * Order Concluding Proceedings; Notice of

AND HUMAN SERVICES, * Voluntary Dismissal; Vaccine Rule 21(a);

* Non

- Covered Pneumococcal Polysaccharide

Respondent. * Vaccine (Pneumovax) ; Ine ligi bi li ty

* * * * * * * * * * * * * for Vaccine Program.

Belarmina Flores

-

Ayala

, Chowchilla, CA

, pro se petitioner.

Daniel A. Principato , United States Department of Justice, Washington, DC, for respondent.

ORDER CONCLUDING PROCEEDINGS 1

On April 2, 2021, Belarmina Flores

- Ayala (“petitioner”), acting pro se , filed a petition in

the National Vaccine Injury Compensation Program. 2

, 3 Petition (ECF No. 1). On June 4, 2021, I

held a telephonic status conference with petitioner as well as respondent’s counsel. The status

conference was digitally recorded. See Scheduling Order (ECF No. 12).

1 P ursuant to the E

- Government Act of 2002, see 44 U.S.C. § 3501 note (2012), b ecause this opinion contains a

reasoned explanation for the action in this case, I am required to post it on the website of the United States Court of

Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7

. This means the

opinion will be available to anyone with access to the Internet. Before the opinion is posted on the court’s

website, each party has 14 days to file a motion requesting redaction “of any information furnished by that party:

(1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that

includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of

privacy.” Vaccine Rule 18(b). “An objecting party must provide the court with a proposed redacted version of the

decision.” Id. If neither party files a motion for redaction within 14 days, the opinion will be posted on the

court’s website without any changes. Id.

2 The Nat ional Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine

Injury Act of 1986, Pub. L. No. 99

- 660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa

- 10 to 34 (2012)

(hereinafter “Vaccine Act” or “the Act”). He reinafter, individual section references will be to 42 U.S.C. § 300aa of

the Act.

3 T he default procedure is that a pro se petitioner is required to enter and receive paper (hard copy) filings by mail,

which can result in delays in case processing. But in light of the COVID

- 19 pandemic, the Chief Judge has

suspended the paper filing requirements for pro se petitioners ( see General Order No. 2, at ECF No. 5) and the

petitioner has consented to electroni c filing ( see Electronic Notification Consent Form, at ECF No. 6). There is no

indication that petitioner has been unable to file documents electronically or alternatively, to contact chambers via

email.2

As noted in the prior scheduling order, t he petition concerns petitioner’s receipt of a

pneumococcal polysaccharide (“pneumococcal 23,” “PPSV23,” or “Pneumovax”) vaccine

administered in her left arm, followed by well

- documented injuries to her left arm. The filed

medical records reflect and peti tioner confirmed (in the petition and during the status conference)

that the pneumococcal polysaccharide vaccine was administered in her left arm.

During the status conference, I explained that a petitioner is only eligible to pursue a

claim in the Vaccin e Program for a vaccine set forth in the Vaccine Injury Table (the “Table”).

See Section 11(c)(1)(A); 42 C.F.R. § 100.3 (2017). The Table only includes vaccines which the

Centers for Disease Control and Prevention (“CDC”) recommends for routine administra tion to

children. The CDC currently recommends that children receive pneumococcal conjugate

vaccines, but not polysaccharide

- type pneumococcal vaccines like petitioner received. 66 Fed.

Reg. 28, 166

- 01, 2001 WL 535250 (May 22, 2001) ; see also Morrison v. Sec’y of Health &

Human Servs. , No. 04

- 1683V, 2005 WL 2008245, at *1 (Fed. Cl. Spec. Mstr. July 26, 2005)

(describing how and when pneumococcal conjugate vaccines were added to the Vaccine Table).

I explained that petitioner is not eligible to pursue a c laim in the Vaccine Program. I

explained that petitioner may dismiss her claim which will result in the entry of judgment and

allow her to pursue a separate claim outside of the Vaccine Program, for example, against the

vaccine administrator. Alternative ly, she may withdraw her claim and preserve her right to seek

to reopen her claim, if pneumococcal polysaccharide vaccines are added to the Table, in the

future. 2 Petitioner chose the second option. Therefore, I ordered petitioner to file a Notice of

Voluntary Dismissal pursuant to Vaccine Rule 21(a), whic h was attached to the Scheduling

Order issued on June 4, 2021 . Petitioner’s deadline to file the notice of voluntary dismissal was

June 21, 2021. However, petitioner has not filed th at notice or any other materials and she has

not contacted my chambers. The scheduling order noted that if petitioner did not adhere to this

deadline, her claim would likely be dismissed based on the conversation during the status

conference.

Petitioner’s statements during the status conference on June 4, 2021, are hereby co nstrued

as petitioner’s notice of voluntary dismissal pursuant to Vaccine Rule 21(a).

Accordingly, pursuant to Vaccine Rule 21(a), the above

- captioned claim is dismissed

without prejudice . The Clerk of the Court is hereby instructed that judgment shall n ot enter

pursuant to Vaccine Rule 21(a).

IT IS SO ORDERED.

________________________ Thomas L. Gowen

Special Master