           In the United States Court of Federal Claims
                                  OFFICE OF SPECIAL MASTERS
                                            No. 18-1196
                                    Filed: September 17, 2019
                                            Unpublished


    PATRICK L. MAGLIOZZI,
                                                     Dismissal; Anthrax Vaccine;
                         Petitioner,                 Vaccine Not Covered by Program;
    v.                                               Insufficient Proof; Vaccine Act Entitlement;
                                                     Denial Without Hearing; Special Processing
    SECRETARY OF HEALTH AND                          Unit (“SPU”)
    HUMAN SERVICES,

                        Respondent.



David Porter Murphy, Greenfield, IN, for petitioner.
Heather Pearlman, U.S. Department of Justice, Washington, DC, for respondent.

                                                DECISION 1

Dorsey, Chief Special Master:

       On August 13, 2018, Mr. Magliozzi (“petitioner”) filed a petition and eight pages
of medical records for compensation under the National Vaccine Injury Compensation
Program, 42 U.S.C. §300aa-10, et seq. 2 [the “Vaccine Act” or “Program”]. The petition
alleges that petitioner sustained various injuries as a result of his receipt of an anthrax
vaccine on August 1, 2015.

       On August 7, 2019, an Order to Show Cause was issued, informing petitioner
that the Anthrax vaccine is not covered under the Program and that the petition
appeared to be filed outside the statute of limitations period. ECF No. 14. The order

1
 The undersigned intends to post this ruling on the United States Court of Federal Claims' website. This
means the ruling 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, the undersigned
agrees that the identified material fits within this definition, the undersigned will redact such material from
public access. Because this unpublished ruling contains a reasoned explanation for the action in this
case, undersigned is required to post it on the United States Court of Federal Claims' website in
accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management
and Promotion of Electronic Government Services).

2National 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 (2006).
afforded petitioner 30 days, until September 6, 2019, to amend the petition or otherwise
show cause why the petition should not be dismissed. It also provided petitioner with
information on how to voluntarily exit the Vaccine Program. The order concluded by
informing petitioner that non-compliance would be interpreted as either a failure to
prosecute the claim or as an inability to provide necessary support for the claim. The
petition would be dismissed in either event.

       On September 5, 2019, petitioner filed a Motion for a Decision Dismissing His
Petition. ECF No. 15. Petitioner indicated in his motion that “[a]n investigation of the
facts and science supporting his case has demonstrated to Petitioner that he will be
unable to prove that he is entitled to compensation in the Vaccine Program.” Id. at 1.
Petitioner further indicated that he “understands that a decision by the [undersigned]
dismissing his petition will result in a judgment against him. He has been advised that
such a judgment will end all of his rights in the Vaccine Program.” Id.

        To be entitled to compensation under the Vaccine Act, a petitioner must
demonstrate that he or she received a vaccine set forth in the Vaccine Injury Table [the
“Table”]. See §11(c)(1)(A); 42 C.F.R. § 100.3 (2017). Anthrax vaccines do not appear
in the Table and are therefore not covered by the Program. In addition, under the
Vaccine Act, “no petition may be filed for compensation under the Program for such
injury after the expiration of 36 months after the date of the occurrence of the first
symptom or manifestation of onset or of the significant aggravation of such injury”. §
16(a)(2). Petitioner alleges that he received an anthrax vaccination on August 1, 2015,
and experienced adverse effects 2-3 days thereafter, but did not file a petition for
compensation until August 13, 2018, more than 36 months after the date of his first
symptoms. Petition at 1.

       As such, petitioner is unable to show that he “received a vaccine set forth in the
Vaccine Injury Table” (§11(c)(1)(A)) or filed the petition within 36 months of his first
symptoms (§16(a)(2). Thus, petitioner cannot receive compensation on a claim based
on the Anthrax vaccine through the Vaccine Program, and the petition must be
dismissed. See, e.g., Cielencki v. HHS, No. 15-632V, 2015 WL 10767150, at *3 (Fed.
Cl. Spec. Mstr. Dec. 22, 2015) (dismissing petition that involves Pneumovax, a non-
covered vaccine).

      For these reasons, and in accordance with § 12(d)(3)(A), petitioner’s claim for
compensation is denied and this case is dismissed for insufficient proof. The
Clerk shall enter judgment accordingly. 3

IT IS SO ORDERED.

                                                           s/Nora Beth Dorsey
                                                           Nora Beth Dorsey
                                                           Chief Special Master


3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice

renouncing the right to seek review.
                                                    2
