The opinion
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: March 5, 2021
* * * * * * * * * * * * * *
CARL BROWNING, * UNPUBLISHED
*
Petitioner, * No. 18-135V
*
v. * Special Master Dorsey
*
SECRETARY OF HEALTH * Petitioner’s Motion for a Decision
AND HUMAN SERVICES, * Dismissing the Petition; Pneumococcal
* Vaccination; Lung Scarring; Difficulty
Respondent. * Breathing; Pain.
*
* * * * * * * * * * * * * *
Renee J. Gentry, Vaccine Injury Clinic, George Washington Univ. Law School, Washington, DC,
for petitioner.
Molly D. Gorney, U.S. Department of Justice, Washington, DC, for respondent.
DECISION1
On January 26, 2018, Carl Browning (“petitioner”) filed a petition pursuant to the
National Vaccine Injury Compensation Program (“Vaccine Act” or “the Program”), 42 U.S.C. §
300aa-10 et seq. (2012).2 Petitioner alleged that he suffered from injuries, including lung
scarring, chronic difficulty breathing, and pain as a result of a pneumococcal vaccination
allegedly administered on January 27, 2016. Petition at 1 (ECF No. 1).
On January 4, 2021, the undersigned issued an Order to Show Cause for petitioner’s
repeated failure to file letters of administration after Mr. Browning passed away. Order to Show
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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Cause dated Jan. 4, 2021 (ECF No. 54). The Order to Show Cause requested petitioner’s family
to file the letters of administration and a motion to substitute to name a proper petitioner no later
than March 5, 2021. Id. at 2.
On March 5, 2021, petitioner’s family moved for a decision dismissing the case, stating
that “[a]n investigation of the facts and science supporting has demonstrated to the family that
they will be unable to prove they are entitled to compensation in the Vaccine Program” and “to
proceed further would be unreasonable and would waste the resources of the Court, the
respondent, and the Vaccine Program.” Petitioner’s Family’s Motion for a Decision Dismissing
Petition, filed Mar. 5, 2021, at ¶¶ 1-2 (ECF No. 55). Petitioner’s family stated that they
understand that a decision by the Special Master will result in a judgment against them, and that
they have been advised that such judgment will end all of their rights under the Vaccine Act. Id.
at ¶ 3. Furthermore, they intend to elect to reject the Vaccine Program judgment against them
and elect to file a civil action. Id. at ¶ 5.
To receive compensation under the Program, petitioner must prove either (1) that he
suffered a “Table Injury”—i.e., an injury falling within the Vaccine Injury Table—corresponding
to the vaccination, or (2) that he suffered an injury that was actually caused by the vaccination.
See §§ 11(c)(1), 13(a)(1)(A). The records submitted by petitioner and his family show that he
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
& Hum. Servs., 93 F.3d 781, 785-87 (Fed. Cir. 1996).
Accordingly, in light of petitioner’s family’s motion and a review of the record, and
failure to file letters of administration, or otherwise substitute the proper party, 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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