            In the United States Court of Federal Claims
                              OFFICE OF SPECIAL MASTERS
                                    Filed: May 5, 2020

* * * * * * * * * * * * * * * * * * *
MARKITTA SIMMONS a/n/f S.S.,        *               UNPUBLISHED
                                    *
            Petitioner,             *               No. 19-1140V
                                    *
v.                                  *               Special Master Dorsey
                                    *
SECRETARY OF HEALTH                 *               Petitioner’s Motion for Decision Dismissing
AND HUMAN SERVICES,                 *               Her Petition; Diphtheria-Tetanus-Acellular
                                    *               Pertussis (“DTaP”) Vaccine;
            Respondent.             *               Encephalopathy.
                                    *
* * * * * * * * * * * * * * * * * * *

William B. Hicky, William B. Hickey, Attorney at Law, Nashville, TN, for petitioner.
James V. Lopez, United States Department of Justice, Washington, DC, for respondent.

                                          DECISION1

        On August 6, 2019, Markitta Simmons (“petitioner”), on behalf of her minor child S.S.,
filed a petition for compensation under the National Vaccine Injury Compensation Program (“the
Program”)2 alleging that S.S. suffered encephalopathy as a result of diphtheria-tetanus-acellular
pertussis (“DTaP”) vaccination administered on October 20, 2017. Petition at 1. The
information in the record, however, does not show entitlement to an award under the Program.

       On May 5, 2020, petitioner moved for a decision dismissing her case, stating that she
“has been unable to secure evidence to prove entitlement to compensation in the vaccine
program,” and thus, “to proceed any further would be unreasonable and would waste the

1
 Because this Decision contains a reasoned explanation for the action in this case, the
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). 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, the undersigned
agrees that the identified material fits within this definition, the undersigned will redact such
material from public access.
2
 The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, 42
U.S.C. §§ 300aa-10 et seq. (hereinafter “Vaccine Act” or “the Act”). Hereafter, individual
section references will be to 42 U.S.C. § 300aa of the Act.
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resources of the court, [r]espondent, and the vaccine program.” Petitioner’s Motion for a
Decision Dismissing the Petition, filed May 5, 2020, at ¶¶ 1-2 (ECF No. 28). Petitioner states
that she understands that a decision by the Special Master will result in a judgment against her,
and that she has been advised that such judgment will end all of her rights under the Vaccine
Act. Id. at ¶ 3. Petitioner states that she intends to protect her right to file a civil action and to
elect to reject the vaccine program judgment to file a civil action. Id. at ¶ 4.

         To receive compensation under the Program, petitioner must prove either (1) that S.S.
suffered a “Table Injury”—i.e., an injury falling within the Vaccine Injury Table—corresponding
to the vaccination, or (2) that S.S. suffered 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 she does not
meet the statutory requirement under 42 U.S.C. § 300aa-11(c)(1)(D)(i) to establish entitlement to
compensation. The Federal Circuit has explained that the eligibility requirements in Section
11(c) are not mere pleading requirements or matters of proof at trial, but instead are “threshold
criteri[a] for seeking entry into the compensation program.” Black v. Sec’y of Health & Human
Servs., 93 F.3d 781, 785-87 (Fed. Cir. 1996).

        Accordingly, in light of petitioner’s motion and a review of the record, the undersigned
finds that petitioner is not entitled to compensation. Thus, this case is dismissed. The Clerk
shall enter judgment accordingly.

        IT IS SO ORDERED.

                                                s/Nora Beth Dorsey
                                                Nora Beth Dorsey
                                                Special Master




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