VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_18-vv-00858
Package ID: USCOURTS-cofc-1_18-vv-00858
Petitioner: BRUCE A. LING Jr.
Filed: 2018-06-18
Decided: 2019-11-26
Vaccine: influenza
Vaccination date: 2011-11-08
Condition: fever, lightheadedness, labored breathing, fluttering heart, spasms, weakness, fatigue, clenching jaw, eventual unexplainable head, muscle and joint aches; Guillain-Barre syndrome (GBS)
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Bruce A. Ling Jr. filed a second petition under the National Childhood Vaccine Injury Act on June 18, 2018, seeking compensation for alleged injuries following an influenza vaccination on November 8, 2011. Mr. Ling, who was 35 years old and incarcerated at the time of vaccination, had previously filed a petition in 2014, which was denied on July 21, 2017, because his treating physicians did not substantiate his claims of injury and he failed to provide expert opinion linking the vaccine to his alleged injuries. He also pursued a claim in federal district court, which was dismissed for failure to state a claim on July 16, 2018. The current petition was filed on June 18, 2018, while the federal district court action was still pending, which the respondent argued was a jurisdictional bar under the Vaccine Act, citing 42 U.S.C. § 300aa-11(a)(5)(B). The respondent also argued the petition was barred by the statute of limitations, though Mr. Ling contended that a 2017 amendment to the Vaccine Injury Table, which added Guillain-Barre Syndrome (GBS) with onset between two and 42 days following the flu vaccine as presumptively caused by the vaccine, extended the filing deadline under 42 U.S.C. § 300aa-16(b). Special Master Christian J. Moran initially viewed the jurisdictional defect as "needless formalism" and allowed the case to proceed, ordering Mr. Ling to supplement his petition with evidence of GBS. However, the Court of Federal Claims, in an opinion by Judge Patricia E. Campbell-Smith, reversed this decision. The court held that jurisdictional requirements cannot be waived and that Mr. Ling's petition should have been dismissed for lack of jurisdiction because he had a pending civil action when he filed the Vaccine Act petition, citing Flowers v. Secretary of Health & Human Services. The court found that the special master erred by not dismissing the petition on jurisdictional grounds and therefore did not review the merits of the case. The petition was dismissed for lack of jurisdiction. Mr. Ling was represented pro se. Respondent was represented by Lara Englund in the Special Master's decision and by Amy P. Kokot, Joseph H. Hunt, C. Salvatore D’Alessio, Catharine E. Reeves, and Heather L. Pearlman in the Court of Federal Claims decision.

Theory of causation field:
Petitioner Bruce A. Ling Jr. filed a second petition on June 18, 2018, alleging injury from an influenza vaccination on November 8, 2011. His alleged injuries included fever, lightheadedness, labored breathing, fluttering heart, spasms, weakness, fatigue, clenching jaw, head, muscle and joint aches, and later claimed Guillain-Barre Syndrome (GBS). The petition was filed while a civil action for the same injuries was pending in federal district court, which the respondent argued was a jurisdictional bar under 42 U.S.C. § 300aa-11(a)(5)(B). Petitioner also argued that a 2017 amendment to the Vaccine Injury Table, which added GBS as a condition presumptively caused by the flu vaccine, extended the statute of limitations under 42 U.S.C. § 300aa-16(b). Special Master Christian J. Moran initially allowed the case to proceed, viewing the jurisdictional defect as "needless formalism," but ordered petitioner to provide evidence of GBS. The Court of Federal Claims, Judge Patricia E. Campbell-Smith presiding, reversed, holding that jurisdictional requirements cannot be waived and that the petition was a nullity due to the pending civil action at the time of filing. The court affirmed the dismissal for lack of jurisdiction, without reaching the merits of the alleged injury or causation. The public decision does not describe specific medical experts, detailed clinical findings, or a specific mechanism of causation beyond the Table presumption for GBS. Petitioner was represented pro se, and respondent was represented by Lara Englund (Special Master) and Amy P. Kokot, Joseph H. Hunt, C. Salvatore D’Alessio, Catharine E. Reeves, and Heather L. Pearlman (Court of Federal Claims). The case was dismissed for lack of jurisdiction on May 21, 2019, by Special Master Moran, and this decision was sustained by the Court of Federal Claims on November 26, 2019.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_18-vv-00858-0
Date issued/filed: 2019-06-25
Pages: 10
Docket text: PUBLIC DECISION (Originally filed: 5/21/2019) regarding 18 DECISION of Special Master Signed by Special Master Christian J. Moran. (ypb) Service on parties made. Copy of public decision sent to petitioner via USPS first class mail.
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Case 1:18-vv-00858-PEC Document 21 Filed 06/25/19 Page 1 of 10
REISSUED FOR PUBLICATION
JUNE 25, 2019
OSM
U.S. COURT OF FEDERAL CLAIMS
1Ju tf1r luttrh §tatrs Qlnurt of lJZrhrral Q.1latms
OFFICE OF SPECIAL MASTERS
* * * * * * * * * * * * * * * * * * * * *
BRUCE A. LING Jr., *
* No. 18-858V
Petitioner, * Special Master Christian J. Moran
*
V. * Issued: May 21, 2019
*
SECRETARY OF HEALT H * Dismissal, jurisdiction, statute of
AND HUMAN SERVICES, * limitations, lookback, table
* amendment, 42 U.S.C. § 300aa-16(b),
Respondent. * 42 U.S.C. § 300aa-l l(b)(2).
* * * * * * * * * * * * * * * * * * * * *
Bruce A. Ling Jr., pro se;
Lara Englund, United States Dep't of Justice, Washington, DC, for respondent.
UNPUBLISHED ORDER GRANTING
RESPONDENT'S MOTION TO DISMISS1
Bruce Ling filed a second petition under the National Childhood Vaccine
Injury Act (Vaccine Act), 42 U.S.C. § 300aa-10 through 34 (2012), on June 18,
2018. This petition, like his first petition, No. 14-1017V, sought recovery under
the Vaccine Act for alleged injuries that Mr. Ling suffered following his influenza
vaccination on November 8, 2011. Even though Mr. Ling's first claim of a vaccine
injury was already adjudicated on the merits, Mr. Ling now seeks a second bite of
the apple. Mr. Ling bases his request for relief on a provision of the Vaccine Act
1 Because this ruling 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 ruling will be
available to anyone with access to the internet. In accordance with Vaccine Rule 18(b ),
petitioners have 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 before posting the ruling.

Case 1:18-vv-00858-PEC Document 21 Filed 06/25/19 Page 2 of 10
that allows petitioners to file a second petition if an amendment to the Vaccine
Injury Table significantly increases the likelihood that a petitioner will obtain
compensation. Mr. Ling, however, did not provide any basis for the undersigned
to conclude that his chances of success have improved this second time around.
Citing this deficit in Mr. Ling's petition, the Secretary moved for the claim to be
dismissed. In recognition of Mr. Ling's prose status, Mr. Ling was provided
additional time to supplement his petition to address the problem identified by the
Secretary. Nearly four months later, now 11 months after his petition was filed,
Mr. Ling has still failed to do so. Accordingly, Mr. Ling's petition is now
DISMISSED as impermissibly filed pursuant to 42 U.S.C. § 300aa-l 6(b) and 42
U.S.C. § 300aa-l l(b)(2) of the Vaccine Act.
Procedural History
Mr. Ling has filed three different petitions related to his November 8, 2011
vaccination. The first and third petitions were filed in this court under the Vaccine
Act. The second was filed in federal court in the Northern District of Florida.
First Court of Federal Claims Petition
Mr. Ling filed his initial petition under the Vaccine Act on October 20,
2014. He alleged that the November 8, 2011 flu vaccine caused him to suffer from
"fever, lightheadedness, labored breathing, fluttering heart, spasms, weakness,
fatigue, clenching jaw, [and] eventual unexplainable head, muscle and joint aches."
Petition at 1. Mr. Ling's original petition did not explicitly claim that he suffered
from Guillain-Barre syndrome (GBS) but did state that through independent
research he had performed, he "had discovered Chronic Fatigue Syndrome,
Chronic Epstein Virus Syndrome, Guillain Barre Syndrome and alike syndrome
that had similar and same symptoms that he suffered from." Petition at 2.
His initial petition, like the present petition, was filed and pursued pro se. In
his Rule 4 report, the Secretary opposed compensation, arguing that none of the
treating doctors stated that the flu vaccine harmed Mr. Ling and Mr. Ling had not
provided a report from an expert. Resp't's Rep., filed March 9, 2015, at 10.
Mr. Ling was directed to obtain a report from an expert. To facilitate this
process, the undersigned set forth the minimum topics on which an expert needed
to opine. Order, issued June 2, 2015.
Mr. Ling did not submit a report from an expert in support of his claims.
Instead, Mr. Ling attempted to use a subpoena to compel the production of
evidence that may support his claims. Eventually, on January 3, 2017, Mr. Ling
2

Case 1:18-vv-00858-PEC Document 21 Filed 06/25/19 Page 3 of 10
.,
filed a motion for a hearing. The Secretary opposed this motion and requested a
ruling on the record. Resp't's Cross-Mot. and Resp., filed Feb. 16, 2017. Mr. Ling
filed a brief on March 10, 2017, and an affidavit from his brother on April 14,
2017.
On July 21, 2017, the undersigned denied Mr. Ling's claim for
compensation. The decision found that Mr. Ling's treating physicians had not
substantiated his claims of a vaccine injury, or any cognizable injury. Decision,
issued July 21, 2017, 2017 WL 3814649, at *7. The undersigned also cited Mr.
Ling's failure to provide expert opinion linking his vaccination to the injuries he
alleged. Id.
Northern District of Florida Petition
On February 20, 2018, Mr. Ling brought a civil action in the United States
District Court for the Northern District of Florida for injuries suffered from the
same vaccination. See Resp't's Mot., filed Oct. 2, 2018, exhibits A-C. That claim
was brought against employees of the Florida Department of Corrections ( where he
was housed at the time of vaccination) and alleged that the vaccine administrators
failed to exercise due care in their administration of the vaccine on November 8,
2011, which ultimately caused him to suffer symptoms of "Guillain Barre
Syndrome, complex regional pain syndrome, neurologic injuries, transverse
myelitis, encephalitis, CIDP neuritis, myositis, and alike injuries." Id. at exhibit B
at 9. On July 16, 2018, United States District Judge Robert Hinkle of the Northern
District of Florida dismissed Mr. Ling's petition for its failure to state a claim. Id.
at exhibit C.
Second Court of Federal Claims Petition
Mr. Ling filed the above-captioned petition with the Court of Federal Claims
on June 18, 2018, approximately one month before his Florida action was
dismissed. Mr. Ling's most recent petition arises out of the same operative facts as
his initial petition. In fact, Mr. Ling filed the exact same petition as he did four
years ago. However Mr. Ling supplemented the 2018 petition with some hand
1
written additions to the original petition. He adds "GBS" to his list of post
vaccination symptoms. Petition, filed June 18, 2018, at 1. He also now describes
his previously alleged symptoms of "neurological mobility of the arms when head
tilted and dizziness while standing" as being "very consistent with GBS
symptoms." Id. at 2. Mr. Ling averred that "his test results are consistent with a
vaccine injured patient with (GBS) Guillain Barre Syndrome, in addition to his
symptoms." Id.
3

Case 1:18-vv-00858-PEC Document 21 Filed 06/25/19 Page 4 of 10
Finally, Mr. Ling concluded his mark-up of the initial petition with the
addition that "due to extraordinary circumstances this claim is filed timely because
of Amended Table injury of (GBS). Also petitioner filed complaint in United
States District Court due to dismissal of initial petition." Id. at 5.
An initial status conference was held on August 3, 2018. During the
conference, respondent noted that no medical records had been filed with the
petition. See order, issued Aug. 3, 2018. Petitioner responded by stating that he
intended to adopt the records filed with the 2014 petition for the purposes of his
2018 petition. Id. Respondent stated that he intended to move for dismissal on the
grounds that Mr. Ling's petition was statutorily barred. Id.
The Secretary moved to dismiss Mr. Ling's petition on October 2, 2018. In
his motion, the Secretary argued that Mr. Ling's petition must be dismissed
because his civil action in the Northern District of Florida was pending when he
filed the present claim. Resp't's Mot., filed Oct. 2, 2018, at 3. In support of this
argument, the Secretary cited 42 U.S.C. § 300aa-l l(a)(5)(B), which provides that
"if a plaintiff has pending a civil action for damages for a vaccine-related injury or
death, such person may not file a [petition under the Vaccine Act]."
The Secretary also argued that Mr. Ling's petition was statutorily barred by
the Vaccine Act's statute of limitations. The Act provides that petitions must be
filed within "36 months after the date of the occurrence of the first symptom or
manifestation of onset." 42 U.S.C. § 300aa-16(a)(2). However, as Mr. Ling pointed
out in his 2018 petition, and as the Secretary acknowledges, the Vaccine Act
contains a lookback provision that extends the statute of limitations when the
Vaccine Injury Table is revised. The statute provides:
If at any time the Vaccine Injury Table is revised and the effect of
such revision is to permit an individual who was not, before such
revision, eligible to seek compensation under the Program, or to
significantly increase the likelihood of obtaining compensation, such
person may, notwithstanding section 300aa-l l(b)(2) of this title,2 file
a petition for such compensation not later than 2 years after the
effective date of the revision
2 Section 300aa-1 l(b)(2) provides that "only one petition may be filed with respect to
each administration of a vaccine."
4

Case 1:18-vv-00858-PEC Document 21 Filed 06/25/19 Page 5 of 10
•
42 U.S.C. § 300aa-16(b). Because the table was amended in 2017 to provide that
GBS with an onset between two and 42 days following the flu vaccine was
presumptively caused by the flu vaccine, Mr. Ling claims that his petition is not
covered by the three-year statute of limitations, but by the two-year limitation that
starts with the revision of the table. Petition, filed June 18, 2018, at 5. The
Secretary rebuts this, arguing that there does not exist preponderant evidence that
Mr. Ling ever had GBS and thus the revision to the Table did not "significantly
increase" his likelihood of obtaining compensation. Resp't's Mot., filed Oct. 2,
2018, at 3-4.
On January 25, 2019, the undersigned addressed respondent's motion for
dismissal. In that order, the undersigned acknowledged that the Secretary was,
strictly speaking, correct in his assertion that Mr. Ling's petition was
jurisdictionally barred at the time of filing because he had a pending civil action.
Order, issued Jan. 25, 2019, at 4-5. However, because Mr. Ling could cure that
deficit by simply refiling the petition, the undersigned characterized respondent's
requested relief as "needless formalism" that was particularly inadvisable under
Congress's instruction that the undersigned "provide for a less-adversarial,
expeditious, and informal proceeding for the resolution of petitions." Id. ( citing 42
U.S.C. § 300aa-12(d)(2)(A)).
However, the Secretary's argument that Mr. Ling failed to include evidence
in his petition that established that the amendment to the Vaccir:1e Injury Table
significantly increased his likelihood of success was compelling. Order, issued
Jan. 25, 2019, at 5-6. Because Mr. Ling was proceeding prose and should be
provided some flexibility in his filings, the undersigned ordered Mr. Ling to
supplement his petition with "medical records or opinions tending to show that he
suffered from GBS two to 42 days following the November 8, 2011 flu vaccine."
Order, issued Jan. 25, 2019, at 7. Otherwise, Mr. Ling was warned, the petition
would be dismissed. Id.
On March 14, 2019, Mr. Ling filed a three-page letter. The letter raised
several procedural complaints regarding his petition and requested additional time
to respond to the order for Mr. Ling to supplement his petition. Mr. Ling's request
was granted, and he was provided three additional weeks, or until April 12, 2019,
to supplement his petition. After receiving leave for an extension of time to file his
additional evidence, Mr. Ling filed a response on May 1, 2019. In his response,
Mr. Ling stated his belief that he had "provided the court with any and all available
evidence" and that the amendment to the Vaccine Injury Table, itself, was
"evidence of petitioner's assertions of GBS in 2011, confirming and substantiating
petitioner's claims of the onset of symptoms." Pet'r's Resp., filed May 1, 2019, at
5

Case 1:18-vv-00858-PEC Document 21 Filed 06/25/19 Page 6 of 10
1-2. Attached to Mr. Ling's response was a list of client compensation for vaccine
injuries published on the website of Maglio Christopher & Toale, a law firm with
extensive experience in the Vaccine Program.
Summary of Medical Records
While Mr. Ling did not submit medical records alongside his 2018 petition,
the undersigned incorporated the records from his 2014 petition into the record
here. This obviated the need for Mr. Ling to refile all his medical records. The
undersigned incorporates, with only small changes, portions of the summary of Mr.
Ling's medical records provided in the decision issued on July 21, 2017.
References to exhibit numbers reference exhibits filed with the 2014 petition.
* * *
The records show Mr. Ling complained about many things being wrong with
him many times. Usually, but not always, medical staff at the prison could not find
any objective basis for Mr. Ling's complaint. When the medical staff did not
respond how Mr. Ling thought the medical staff should respond, he made another
complaint. This generated more paperwork, extending a cycle. Supplemental
exhibit at PDF 220; supplemental exhibit at PDF 440.
While in prison and in both the 2014 and 2018 Court of Federal Claims
petitions, Mr. Ling complained that the prison's medical staff was not caring for
him properly. This charge is not necessarily fanciful in a general sense as Florida
has had problems meeting its duty to people who are incarcerated. See Costello v.
Wainwright, 430 U.S. 325,326 (1977), rev'g 539 F.2d 547 (5th Cir. 1976) (en
bane), reinstat'g 525 F.2d 1239 (5th Cir. 1976), affg 397 F. Supp. 20 (M.D. Fla.
1975). Thus, Mr. Ling's suggestion of systemic errors in medical records cannot
be - and were not - dismissed out of hand.
Mr. Ling, however, failed to present any evidence that he specifically was
mistreated. First, he presented no evidence from a doctor who questioned the care
that he received while in prison. Second, Florida provided Mr. Ling with
necessary medical care for serious health problems, such as an infected toe in 2009
and a urologic problem in 2013. Supplemental exhibit at PDF 474-94, PDF 102.
Third, and most importantly, after Mr. Ling's release from prison, medical
providers unaffiliated with the Florida correctional facilities also failed to find any
verifying medical problems. See, ~' exhibit 1 at 14. If these doctors, whose
loyalty seems to be to Mr. Ling only, cannot match his subjective symptom to an
objective sign, then Mr. Ling's credibility is diminished. For these reasons, Mr.
6

Case 1:18-vv-00858-PEC Document 21 Filed 06/25/19 Page 7 of 10
Ling has not rebutted the generally accepted principle that when medical records
describe events occurring close in time to when the medical records were created,
the medical records are accurate. See Cucuras v. Sec'y Health & Human Servs.,
993 F.2d 1525, 1528 (Fed. Cir. 1993).
The medical records show that Mr. Ling was born in 1976, and stopped
attending school after completing the tenth grade. Exhibit 1 at 3 7. In June 1997,
he went to prison. Supplemental exhibit at PDF 500, 608. During this
incarceration, he reported joint pain. Id. at 540. He also declined a mumps
measles-rubella vaccination. Supplemental exhibit at PDF 505, 570. After serving
time, he was released.
Mr. Ling returned to custody of the Florida Department of Corrections in
2006. Supplemental exhibit at PDF 301 (initial intake screening form). Mr. Ling
informed a psychiatrist that he had a history of depression and anxiety.
Supplemental exhibit at PDF 207 (September 14, 2006).
In the summer of 2011, Mr. Ling experienced problems when urinating.
Supplemental exhibit at PDF 355. On September 7, 2011, Mr. Ling stated that
since his last health evaluation, he has had "'same issues - freq urination, being
tired."' Id. at PDF 78. Around this time - still before vaccination - Mr. Ling
reported back pain. Id. at PDF 349. An X-ray from November 4, 2011 showed
that his lumbar spine was not remarkable. Id. at PDF 191.
A nurse administered the flu vaccine on November 8, 2011. Supplemental
exhibit at PDF 346. Although a form indicated that Mr. Ling had consented to this
vaccination, Mr. Ling later stated that he signed the informed consent form after
the vaccination. Petition at 1 ,-r 3; supplemental exhibit at PDF 252, 262.
After the flu vaccination, Mr. Ling complained about health problems often.
For example, on November 13, 2011, he said that on November 11, 2011 (three
days after vaccination), he felt light-headed and had difficulty breathing.
Supplemental exhibit at PDF 273. The Department of Corrections transferred him
from one location to another, where he went to a doctor's clinic. On November 14,
2011, however, Mr. Ling reported "no chest pains, no dizziness." Supplemental
exhibit at PDF 345. The doctor stated Mr. Ling might have hypertension. Exhibit
2 at 14.
On November 25, 2011, Mr. Ling reported weakness in his arms.
Supplemental exhibit at PDF 339. On November 30, 2011, Mr. Ling reported
having "knots" on his head and neck. The medical staff advised Mr. Ling to
7

Case 1:18-vv-00858-PEC Document 21 Filed 06/25/19 Page 8 of 10
•
continue taking his medications and educated him on anxiety and stress. Id. at
PDF 457. On December 2, 2011, the medical staff followed a protocol for
complaints of shortness of breath. Id. at PDF 455. On December 7, 2011, Mr.
Ling said he felt irritated for not being treated adequately. Id. at PDF 440. On
December 12, 2011, various laboratory tests came back normal. Id. at PDF 492-
93. Mr. Ling underwent an X-ray of his cervical spine on December 21, 2011.
The result was normal. Id. at PDF 189.
By January 2012, Mr. Ling's requests for medical assistance and complaints
about his health were becoming more elaborate. Mr. Ling now suggested that he
suffered from chronic fatigue syndrome. But, no doctor reached this diagnosis.
~ supplemental exhibit at PDF 265. He told one treater that he had suffered
from chronic fatigue syndrome all his life. Supplemental exhibit at PDF 438
(January 26, 2012).
Throughout 2012, Mr. Ling complained frequently of a variety of health
issues, including post-traumatic stress, difficulty breathing, and numbness in arms
and legs. Supplemental exhibit at PDF 244, 246. He suggested that the
November 2011 flu vaccination was responsible for them. Supplemental exhibit at
PDF 252-53; id. at PDF 53 (duplicated at exhibit 2 at 7); supplemental exhibit at
PDF 235.
This pattern of complaints continued in 2013. Failing to receive the medical
care he expected, he sought assistance from mental health specialists.
Supplemental exhibit at PDF 197, 200, 205 ( duplicated at id. at 209).
Mr. Ling was released from prison in October 2013. At his first medical
appointment following his release, Mr. Ling recounted his concern that the flu
vaccine injured him, especially with respect to chronic fatigue. Exhibit 1 at 38;
supplemental exhibit at PDF 40; see also exhibit 1 at 6 ( duplicated at supplemental
exhibit at PDF 9).
In the follow-up appointment one month later, he complained about almost
every system in his body. The doctor's plan stated that Mr. Ling "needs
psychiatric care." Exhibit 1 at 29 (duplicated at supplemental exhibit at PDF 32).
Similarly, in April 2014, the doctor commented that Mr. Ling was "fixated on [the]
flu shot." Exhibit 1 at 20 ( duplicated at supplemental exhibit at PDF 23).
In June 2014, Mr. Ling started receiving mental health services at Apalachee
Center. In the context of giving a history, Mr. Ling stated that he had been anxious
all his life. Exhibit 7 at 3-6.
8

Case 1:18-vv-00858-PEC Document 21 Filed 06/25/19 Page 9 of 10
•
On April 24, 2015, Mr. Ling saw a neurologist, Annet Ella Falchook. Dr.
Falchook could not verify a vaccine injury. She recommended an EMG if Mr.
Ling could pay for it. Exhibit 5 at 8. Mr. Ling had an EMG the next day and the
EMG was negative. Id. at 1, 4.
Mr. Ling's 2018 petition does not include any medical records, from 2011 or
present-day, that informs the question of whether Mr. Ling suffered from GBS in
2011 following the flu vaccination.
Analysis
The Vaccine Act explicitly provides that Mr. Ling cannot file a second
petition pertaining to the November 8, 2011 vaccination without a showing that the
amendments to the Vaccine Injury Table "significantly increase the likelihood of
obtaining compensation." 42 U.S.C. § 300aa-16(b). Neither Mr. Ling's petition,
nor his response to the Secretary's dismissal motion, appear to provide evidence or
argument to show that Mr. Ling has met this requirement of the Vaccine Act. To
ensure that Mr. Ling had a full and fair opportunity to address this issue, he was
explicitly instructed, in the January 25, 2019 order, on the ways in which his
petition was deficient and has been provided with a generous amount of time to
address these deficiencies. Mr. Ling has failed to do so.
To be clear, the undersigned does not interpret 42 U.S.C. § 300aa-16(b) to
always require subsequent petitions governed by the provision to be accompanied
by affirmative evidence showing a "significant increase" in the likelihood of
obtaining compensation. Had the dismissal of Mr. Ling's 2014 petition rested
solely on the question of whether the flu vaccine can cause GBS, Mr. Ling may be
able to simply cite the revisions to the Table to demonstrate a significant increase
in his likelihood of obtaining compensation. However, Mr. Ling's petition was not
dismissed on this basis. Instead, the dismissal of Mr. Ling's 2014 petition was
based on the finding that Mr. Ling had failed to present evidence, beyond his
unsubstantiated averments, that the vaccine he received on November 8, 2011 was
followed by any cognizable injury at all. Decision, issued July 21, 2017, 2017 WL
3814649, at *7. Accordingly, the revision to the Table does little, if anything, to
change the equation in terms of Mr. Ling's entitlement to compensation. IfMr.
Ling were to rely on the Table revision to reopen his petition, he needed to provide
some evidence that he suffered from GBS following the November 8, 2011
9

Case 1:18-vv-00858-PEC Document 21 Filed 06/25/19 Page 10 of 10
vaccination. Mr. Ling has failed to do this beyond his naked averments.3
Furthermore, the undersigned has revisited the important medical records filed
with Mr. Ling's initial petition and has been unable to identify medical records that
substantiate the conclusion that Mr. Ling suffered from GBS following the 2011
vaccination.
Although Mr. Ling's petition was deficient, the undersigned recognizes that
Mr. Ling is proceeding prose. Accordingly, Mr. Ling is entitled to a certain, but
limited, amount of flexibility in his filings. See Colbert v. United States, 617 F.
App'x 981,983 (Fed. Cir. 2015) ("A prose litigant's complaint is held to a less
stringent standard than formal pleadings filed by lawyers") (citing Erickson v.
Pardus, 551 U.S. 89, 94 (2007)).
Mr. Ling has been provided this flexibility. The deficit in Mr. Ling's filings
was first raised during an initial status conference on August 3, 2018. It was raised
again by respondent in his motion to dismiss on October 2, 2018. It was again
explained to petitioner in an order to show cause issued on January 25, 2019, and
once more in an order issued on March 20, 2019. Nevertheless, Mr. Ling has been
unable to satisfy the jurisdictional requirements of the Act. Although Mr. Ling's
prose status entitles him to some flexibility with his pleadings, it does not change
the need for Mr. Ling's petition to comply with the requirements of the Act. See
Kelley v. Sec'y, U.S. Dep't of Labor, 812 F.2d 1378, 1380 (Fed. Cir. 1987).
Accordingly, Mr. Ling's petition is DISMISSED as statutorily barred under
42 U.S.C. § 300aa-16(b) and 42 U.S.C. § 300aa-1 l(b)(2).
The Clerk's Office is instructed to enter judgment in accord with this
decision.
IT IS SO ORDERED.
Christian} . M
Special Master
3 Mr. Ling has simply stated that "petitioner Ling suffered GBS in 2011 upon an
[in]oc[]ulation of the influenza vaccine and still does this very day." Pet'r's Resp., filed Nov. 8,
2018, at 8.
10

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DOCUMENT 2: USCOURTS-cofc-1_18-vv-00858-1
Date issued/filed: 2019-11-26
Pages: 9
Docket text: JUDGE VACCINE REPORTED OPINION originally issued under seal on November 13, 2019, see 23 Judge Vaccine Order/Opinion denying motion for review and entering 24 final Judgment dismissing the petition for lack of jurisdiction. Signed by Judge Patricia E. Campbell-Smith. (TQ) Service on parties made.
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Case 1:18-vv-00858-PEC Document 26 Filed 11/26/19 Page 1 of 9
In the United States Court of Federal Claims
No. 18-858V
(E-Filed: November 26, 2019)1
____________________________________
)
BRUCE A. LING, JR., )
)
Vaccine (influenza); National
Petitioner, )
Childhood Vaccine Injury Act of
)
1986, 42 U.S.C. §§ 300aa-1 to -34
v. )
)
(2012).
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
____________________________________)
Bruce A. Ling, Jr., Tallahassee, FL, pro se.
Amy P. Kokot, Trial Attorney, with whom were Joseph H. Hunt, Assistant Attorney
General, C. Salvatore D’Alessio, Acting Director, Catharine E. Reeves, Deputy Director,
Heather L. Pearlman, Assistant Director, Torts Branch, Civil Division, United States
Department of Justice, Washington, DC, for respondent.
OPINION
CAMPBELL-SMITH, Judge.
On May 21, 2019, the special master issued his decision denying compensation in
this vaccine case. See ECF No. 18. On June 20, 2019, petitioner filed a motion for
review of the special master’s decision. See ECF No. 19. Respondent filed its response
on July 19, 2019. See ECF No. 22. Petitioner’s motion is fully briefed and ripe for
decision.
1 Pursuant to Rule 18(b) of the Vaccine Rules of the United States Court of Federal Claims
(Appendix B to the Rules of the United States Court of Federal Claims), this opinion was
initially filed under seal on October 30, 2019. Pursuant to ¶ 4 of the ordering language, the
parties were to propose redactions of the information contained therein on or before November
13, 2019. No proposed redactions were submitted to the court.

Case 1:18-vv-00858-PEC Document 26 Filed 11/26/19 Page 2 of 9
The special master denied petitioner compensation under the National Childhood
Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (2012) (the Vaccine Act). As
explained below, the court affirms the special master’s dismissal of the petition.
Accordingly, petitioner’s motion for review is DENIED.
I. Background
On June 18, 2018, petitioner filed this case seeking compensation for an injury he
allegedly suffered as the result of receiving the influenza (flu) vaccine on or about
November 8, 2011. See ECF No. 1. In reaching his decision, the special master
identified the following relevant facts.2
On October 20, 2014, petitioner filed his initial petition relating to injuries
allegedly arising from the November 8, 2011 vaccine. See ECF No. 18 at 2. The
assigned special master ultimately denied this petition on July 21, 2017, finding that “Mr.
Ling’s treating physicians had not substantiated his claims of a vaccine injury, or any
cognizable injury.” Id. at 3. The special master also noted “Mr. Ling’s failure to provide
expert opinion linking his vaccination to the injuries he alleged.” Id. Thereafter,
petitioner filed a similar claim in the United States District Court for the Northern District
of Florida, which was dismissed for failure to state a claim on July 16, 2018.3 Id.
Petitioner filed the instant petition on June 18, 2018, which was nearly one month
prior to the federal district court’s dismissal of the vaccine-related claim in Florida. In
the petition now before the court, petitioner alleges injuries resulting from the same
November 8, 2011 flu vaccination. See ECF No. 1 at 1. Petitioner claims that after
receiving the vaccine, he experienced “fever, lightheadedness, labored breathing,
fluttering heart, spasms, weakness, fatigue, clenching jaw, eventual unexplainable head,
muscle and joint aches,” that he contends were caused by the vaccine. Id. He further
claims that he experienced “continuous suffering of brain and neurological problems,
spasms, respiratory symptoms, irregular blood flow, numbness in extremities, muscle and
joint pains, chronic fatigue and worsened urological problems.” Id. at 3. He states that
“his test results are consistent with a vaccine injured patient with (GBS) Guillain Barre
Syndrome.” Id. Petitioner also suggests that “the Flu-shot had trigger[e]d symptoms of a
‘preexisting health condition’ that was dormant,” although he does not specify what the
condition is. Id. at 4. In addition to outlining the symptoms he suffered, petitioner makes
2 For clarity of the narrative, the court cites to the special master’s decision and omits
direct citations to the record therein.
3 In his decision, the special master listed the dismissal date for petitioner’s district court
case as July 16, 2018. See ECF No. 18 at 3. The district court’s opinion was signed on July 16,
2018, and filed on July 17, 2018. See Ling v. Stoltzfus, Case No. 18-101, 2018 WL 3451520
(N.D. Fla. 2018).
2

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several statements relating to the conduct of, and inadequate medical attention provided
by, employees of the Florida Department of Corrections. See generally id. at 4-5.
Respondent moved to dismiss the second petition for two reasons. First,
respondent argued that petitioner’s claim was barred because “his civil action in the
Northern District of Florida was pending when he filed the present claim.” See ECF No.
18 at 4. See also 42 U.S.C. § 300aa-11(a)(5)(B) (stating that “if a plaintiff has pending a
civil action for damages for a vaccine-related injury or death, such person may not file a
[petition under the Vaccine Act]”). And second, respondent argued that petitioner’s
claim was barred by the Vaccine Act’s statute of limitations. See ECF No. 18 at 4. See
also 42 U.S.C. § 300aa-16(a)(2) (requiring that petitions be filed within “36 months after
the date of the occurrence of the first symptom or manifestation of onset”). Petitioner
countered respondent’s argument as to the statute of limitations, arguing that the Vaccine
Injury Table had been updated in 2017, which effectively extended the statute of
limitations. See ECF No. 18 at 4.
The revision cited by petitioner extends the time for filing, in pertinent part, as
follows:
If at any time the Vaccine Injury Table is revised and the effect of such
revision is to permit an individual who was not, before such revision, eligible
to seek compensation under the Program, or to significantly increase the
likelihood of obtaining compensation, such person may, notwithstanding
section 300aa-11(b)(2)[4] of this title, file a petition for such compensation
not later than 2 years after the effective date of revision.
42 U.S.C. § 300aa-16(b). Petitioner argued before the special master that this filing
extension applies to his case because the Vaccine Injury Table was “amended in 2017 to
provide that GBS with an onset between two and 42 days following the flu vaccine was
presumptively caused by the flu vaccine.” ECF No. 18 at 5. Respondent, in turn, argued
“that there does not exist preponderant evidence that Mr. Ling ever had GBS and thus the
revision to the Table did not ‘significantly increase’ his likelihood of obtaining
compensation.” Id.
With regard to respondent’s first argument for dismissal, the special master agreed
that petitioner had improperly filed his claim during the pendency of his district court
action. Id. Nevertheless, he concluded that the case should go forward because
petitioner “could cure that deficit by simply refiling the petition,” a requirement that the
special master viewed as “needless formalism” that runs contrary to the congressional
4 42 U.S.C. § 300aa-11(b)(2) provides that “only one petition may be filed with respect to
each administration of a vaccine.”
3

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mandate that special masters “provide for a less-adversarial, expeditious, and informal
proceeding for the resolution of petitions.” Id.
Respondent’s second argument, however, was successful. The special master held
that petitioner failed to “include evidence in his petition that established that the
amendment to the Vaccine Injury Table significantly increased his likelihood of success.”
Id. By show cause order dated January 25, 2019, the special master directed petitioner to
supplement the record with “medical records or opinions tending to show that he suffered
from GBS two to 42 days following the November 8, 2011 flu vaccine.” ECF No. 10 at
6. The special master explained that “Mr. Ling is not required to present preponderant
proof of a vaccine injury to clear this jurisdictional hurdle, but he is required to put forth
some evidence that can allow the undersigned to conclude that the Table significantly
increased his likelihood of obtaining compensation.” Id. at 6-7. He then warned that
“[o]therwise, Mr. Ling’s petition will be dismissed.” Id. at 7.
On March 14, 2019, petitioner sought an extension of the time in which the special
master required him to respond to the show cause order, see ECF No. 13, which the
special master granted, to and including April 12, 2019, see ECF No. 14. On April 26,
2019, petitioner requested a second extension, see ECF No. 15, which the special master
granted, to and including May 17, 2019, see ECF No. 16. Petitioner filed a response to
the show cause order on May 1, 2019. See ECF No. 17. In that response, petitioner
offered no new evidence, and stated that he had already “provided the court with any and
all available evidence there is to provide.” Id. at 1. He noted that “[e]ven though some
treating doctors and the respondents had ignored or rejected petitioner’s claims, it was
done so because they were unqualified/uncertified and or out of fear of liability.” Id. at 3.
The special master then proceeded to review in detail the medical records
submitted with petitioner’s 2014 petition. See ECF No. 18 at 6-9. At the outset of his
review, the special master provided the following summary:
The records show Mr. Ling complained about many things being wrong with
him many times. Usually, but not always, medical staff at the prison could
not find any objective basis for Mr. Ling’s complaint. When the medical
staff did not respond how Mr. Ling thought the medical staff should respond,
he made another complaint. This generated more paperwork, extending a
cycle.
Id. at 6. More specifically, the special master found that the records support petitioner’s
claim that he received the flu vaccine on November 8, 2011. See id. at 7. Three days
later, petitioner reportedly “felt light-headed and had difficulty breathing.” Id. He was
seen by a doctor on November 14, 2011, and was diagnosed with possible hypertension.
Id. On November 25, 2011, petitioner reported “weakness in his arms,” and on
November 30, 2011, he reported “‘knots’ on his head and neck.” Id. In response, the
4

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medical staff advised petitioner to “continue taking his medications and educated him on
anxiety and stress.” Id. at 8.
In December 2011, petitioner complained of shortness of breath, had various
normal laboratory test results, and a normal spinal X-ray. See id. In January 2012,
petitioner’s “requests for medical assistance and complaints about his health were
becoming more elaborate.” Id. Petitioner claimed to suffer from chronic fatigue
syndrome, but no such diagnosis was made. Id. Petitioner continued to complain,
throughout 2012, about a “variety of health issues, including post-traumatic stress,
difficulty breathing, and numbness in [his] arms and legs.” Id. And “[h]e suggested that
the November 2011 flu vaccination was responsible for them.” Id. Petitioner’s
complaints continued until he was released from prison in October 2013, and thereafter
he “complained about almost every system in his body.” Id. His treating physician
stated that petitioner “needs psychiatric care,” and further stated that he was “fixated on
[the] flu shot.” Id. (alteration in original).
The special master concluded that the petition “does not include any medical
records, from 2011 or present-day, that informs the question of whether Mr. Ling
suffered from GBS in 2011 following the flu vaccination.” Id. at 9. Without such
evidence, petitioner was unable to show that the 2017 amendments to the Vaccine Injury
Table “significantly increased the likelihood of obtaining compensation” for injuries
which resulted from the flu vaccine he received in November 2011. Id. The special
master was careful to note that claims based on table revisions do not categorically
require additional evidence following the revision. See id. Such evidence was required
in this case, however, because petitioner had failed to show, at any stage of these
proceedings, that he “suffered from GBS following the November 8, 2011 vaccination.”
Id. at 9-10.
II. Legal Standards
This court has jurisdiction to review the decision of a special master in a Vaccine
Act case. 42 U.S.C. § 300aa-12(e)(2). “Under the Vaccine Act, the Court of Federal
Claims reviews the decision of the special master to determine if it is ‘arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law[.]’” de Bazan
v. Sec’y of Health & Human Servs., 539 F.3d 1347, 1350 (Fed. Cir. 2008) (quoting 42
U.S.C. § 300aa-12(e)(2)(B) and citing Althen v. Sec’y of Health & Human Servs., 418
F.3d 1274, 1277 (Fed. Cir. 2005)) (alteration in original).
This court uses three distinct standards of review in Vaccine Act cases, depending
upon which aspect of a special master’s judgment is under scrutiny.
These standards vary in application as well as degree of deference. Each
standard applies to a different aspect of the judgment. Fact findings are
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reviewed . . . under the arbitrary and capricious standard; legal questions
under the “not in accordance with law” standard; and discretionary rulings
under the abuse of discretion standard.
Munn v. Sec’y of Dep’t of Health & Human Servs., 970 F.2d 863, 870 n.10 (Fed. Cir.
1992).
Petitioner bears the burden of proving, by a preponderance of the evidence, that
“the vaccination brought about [his] injury by providing: (1) a medical theory causally
connecting the vaccination and the injury; (2) a logical sequence of cause and effect
showing that the vaccination was the reason for the injury; and (3) a showing of a
proximate temporal relationship between vaccination and injury.” Althen, 418 F.3d at
1278. “Because causation is relative to the injury, a petitioner must provide a reputable
medical or scientific explanation that pertains specifically to the petitioner’s case,
although the explanation need only be ‘legally probable, not medically or scientifically
certain.’” Broekelschen v. Sec’y of Health & Human Servs., 618 F.3d 1339, 1345 (Fed.
Cir. 2010) (quoting Knudsen v. Sec’y of Health & Human Servs., 35 F.3d 543, 548-49
(Fed. Cir. 1994)).
III. Analysis
In his motion for review, petitioner objects to the special master’s decision on
several grounds, each of which suggests that the special master failed to consider
important facts or arguments presented by petitioner. See, e.g., ECF No. 19 at 6
(“Special Master . . . fail[ed] to address crucial facts of [ ] continued conspiracies against
petitioner[’s] due process rights claims of fairness equality, knowing of the manifest
injustice that caused difficulty and advers[a]rial issues and negative consequences in
petitioner’s cases but refusing to address the remedy of testimony of treating doctors.”);
id. at 7 (“Special Master fail[ed] to address petitioner[’s] argu[]ments of crucial facts of
due process violations of fairness and equality and refused petitioner a fact or evidentiary
hearing that would allow for crucial evidence of prison and primary care doctors
testimony . . .”); id. at 8 (“Special Master appears to omit or fail to address crucial facts
that petitioner Ling had attached certain medical records or documents to his reply
motion in opposition to respondent[’]s motion to dismiss.”). In response to petitioner’s
motion for review, respondent argues: (1) that the special master did not err in the
particulars of how he evaluated the evidence supporting petitioner’s claim, ECF No. 22 at
13-15; and (2) that the special master was not required to convene a hearing in this case,
id. at 15-16.
The parties’ submissions now before the court do not address the critical error in
the special master’s decision-making process. Specifically, the special master erred when
he waived, as “needless formalism,” the jurisdictional defect in petitioner’s case. See
ECF No. 10 at 5. Petitioner filed the instant petition on June 18, 2018. See ECF No. 1.
6

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At that time, petitioner had a claim for the same injuries pending before the United States
District Court for the Northern District of Florida. See Ling v. Jones, et. al, Case No. 18-
101, ECF No. 1 (civil rights complaint alleging inadequate prison medical care resulting
in injuries related to the November 8, 2011 flu vaccination). And plaintiff pressed that
litigation through an appeals process that did not conclude until October 25, 2018.5
“Under the Vaccine Act, ‘the jurisdiction of the Court of Federal Claims is
determined at the time of filing’ the petition.” Zavala v. Sec’y of Dep’t of Health &
Human Servs., Case No. 03-1337, 2006 WL 5616331, *4 (Sp. Mstr. Jan. 18, 2006)
(quoting Matos v. Sec’y of Dep’t of Health & Human Servs., 35 F.3d 1549, 1553 (Fed.
Cir. 1994)). And as the special master acknowledged in his January 25, 2019 show cause
order, “the Vaccine Act, as it has been interpreted by the [United States Court of Appeals
for the] Federal Circuit, bars petitioners from bringing claims under the Act if they have a
pending civil action.” ECF No. 10 at 4 (citing Flowers v. Sec’y of Dep’t of Health &
Human Servs., 49 F.3d 1558, 1561 (Fed. Cir. 1995) (interpreting 42 U.S.C. § 300aa-
11(a)(5)(B)).
In Flowers, a minor child received a vaccination on April 2, 1990. Following the
vaccination, she suffered anaphylactic shock resulting in encephalopathy and ultimately
death, on April 30, 1990. Flowers, 49 F.3d at 1559. The child’s grandmother, and
administratrix of her estate, filed a state court case alleging a vaccine-related injury on
April 1, 1992. See id. The next day, April 2, 1992, she filed a petition with this court
pursuant to the Vaccine Act. See id. After learning that the co-pendency of the claims
might be problematic, petitioner voluntarily dismissed the state court case on July 31,
1992. See id. Respondent moved to dismiss the case for lack of jurisdiction on
December 23, 1993. See id. The special master granted respondent’s motion, holding
that Ҥ300aa-11(a)(5)(B) precluded Court of Federal Claims jurisdiction of Ms.
Flowers’s petition, which she filed while a civil action involving the same vaccine-related
injury was pending.” Id. The court subsequently affirmed the special master’s decision.
See id.
The Federal Circuit affirmed this court’s decision that it lacked jurisdiction to hear
petitioner’s case “because when she filed her Vaccine Act petition, [petitioner] had
pending a civil action involving the same vaccine-related injury.” Flowers, 49 F.3d at
1559. Notably, the Federal Circuit reached this conclusion despite the fact that the
5 The Florida district court dismissed petitioner’s case on July 17, 2018, four weeks after
petitioner had filed his petition before the Office of Special Masters. See Ling v. Stoltzfus, Case
No. 18-101, 2018 WL 3451520 (N.D. Fla. 2018). Following dismissal, petitioner continued to
pursue the case by filing an appeal with the United States Court of Appeals for the Eleventh
Circuit on August 21, 2018. See Ling v. Jones, Case No. 18-101, ECF No. 16 (notice of appeal).
The circuit court, in turn, dismissed the appeal, and its mandate was recorded on the district
court’s docket on October 25, 2018. See id. ECF No. 23.
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petitioner’s state court case had been dismissed prior to the respondent moving to dismiss
the Vaccine Act petition for lack of jurisdiction. See id. (stating that petitioner’s state
court case was dismissed on July 31, 1992, while respondent filed its successful motion
to dismiss on December 23, 1993). The court’s decision was based on the fact that the
state court action was pending at the time petitioner filed the Vaccine Act petition—that
the state court action had been dismissed before the special master reached the merits of
the petition did not change the analysis. See id. at 1560. The court found that given the
co-pendency of the matters, “Ms. Flowers’s petition [filed] on April 2, 1992, was . . . a
nullity.” Id. See also Weddel v. Sec’y of Dep’t of Health & Human Servs., 23 F.3d 388
(Fed. Cir. 1994) (dismissing petition for lack of jurisdiction pursuant to §300aa-
11(a)(5)(B) when the state court action was filed in April 1988; the Vaccine Act petition
was filed on September 12, 1990; and the state court action was dismissed one day later
on September 13, 1990); Simpson v. Sec’y of Dep’t of Health & Human Servs., Case No.
12-737, 2013 WL 388993, *2 (Sp. Mstr. 2013) (following Flowers and dismissing
petition for lack of jurisdiction pursuant to §300aa-11(a)(5)(B), “to allow for re-filing of
the petition in compliance with the Vaccine Act’s statutory requirements,” when the state
court action was filed before the Vaccine Act petition; the Vaccine Act petition was filed
on October 31, 2012; respondent’s motion to dismiss for lack of jurisdiction was filed on
November 29, 2012; the state court action was dismissed on December 5, 2012; and
petitioner’s response to the motion to dismiss noting dismissal was filed on December 18,
2012); Zavala, 2006 WL 5616331, *4 (following Flowers and dismissing petition for
lack of jurisdiction pursuant to §300aa-11(a)(5)(B) when the state court action was filed
on September 21, 2001; the Vaccine Act petition was filed on June 4, 2003; the state
court action was dismissed on June 11, 2003; and respondent’s motion to dismiss for lack
of jurisdiction was filed on July 18, 2005).
Despite this established jurisdictional bar, the special master in this case allowed
petitioner to pursue the merits of his case, reasoning that the jurisdictional defect could be
cured by “simply dismissing the present petition and refiling it.” ECF No. 10 at 5. He
deemed such a course to be “needless formalism” and inconsistent “with the broader
objectives of the Act.” Id. As support for his decision, the special master cited
Congress’s directive that special masters “‘provide for a less-adversarial, expeditious, and
informal proceeding for the resolution of petitions.’” Id. (quoting 42 U.S.C. § 300aa-
12(d)(2)(A)).
Bound by the Federal Circuit’s pronouncement in Flowers, the court determines
that jurisdictional requirements under the Vaccine Act may not be the subject of a
discretionary waiver, even if—as the special master opined here—such waiver would
facilitate a more expeditious resolution of the pending matters. Such jurisdictional
requirements promote consistency in the treatment of, and ensure fairness in the
consideration of, all filed petitions, and thus may not be abandoned on a case-by-case
basis. The special master’s decision to allow petitioner to proceed to a merits
determination on the basis of his improperly filed petition was “not in accordance with
8

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law.” Munn, 970 F.2d at 870 n.10. Because petitioner’s case should have been
dismissed for lack of jurisdiction, the special master erred in failing to do so. For this
reason, the court does not review the merits decision here.6
IV. Conclusion
For the above-stated reasons, the court sustains the result of the special master’s
decision to dismiss petitioner’s case, but for the reason that the special master lacked
jurisdiction to consider the merits of the petition. Accordingly, it is hereby ORDERED
that:
(1) Petitioner’s motion for review, ECF No. 19, is DENIED;
(2) The special master’s decision to dismiss the petition, filed May 21, 2019,
ECF No. 18, is SUSTAINED;
(3) The clerk’s office is directed to ENTER final judgment DISMISSING the
petition for lack of jurisdiction; and
(4) The parties shall separately FILE any proposed redactions to this opinion,
with the text to be redacted clearly blacked out, on or before November 13,
2019.
IT IS SO ORDERED.
PATRICIA E. CAMPBELL-SMITH
Judge
6 Despite the fact that the court does not evaluate the merits of petitioner’s claim here,
petitioner has availed himself of several opportunities—before this court, the United States
District Court for the Northern District of Florida, and the United States Court of Appeals for the
Eleventh Circuit—to argue the merits of his case. As previously noted, in each instance
petitioner’s case was dismissed.
9