Melissa Cloer, M.D. v. Sec. Of Health and Human Services

United States Court of Appeals

for the Federal Circuit

__________________________

MELISSA CLOER, M.D.,

Petitioner-Appellant,

v.

SECRETARY OF HEALTH AND HUMAN

SERVICES,

Respondent-Appellee.

__________________________

2009-5052

__________________________

Appeal from the United States Court of Federal

Claims in 05-VV-1002, Judge Lawrence J. Block.

__________________________

ON APPLICATION FOR ATTORNEYS’ FEES AND

COSTS

__________________________

ROBERT T. MOXLEY, Robert T. Moxley, P.C., of Chey-

enne, Wyoming, filed an application for attorneys’ fees

and costs for petitioner-appellant. MARI C. BUSH, Kaye

and Bush, LLC, of Denver, Colorado, filed a supplement

to the application. Of counsel was Robert T. Fishman, of

Denver, Colorado.

ANISHA S. DASGUPTA, Attorney, Appellate Staff, Civil

Division, United States Department of Justice, of Wash-

ington, DC, filed an opposition for respondent-appellee.

CLOER v. HHS 2

With her on the opposition were TONY WEST, Assistant

Attorney General, and THOMAS M. BONDY, Attorney.

__________________________

BeforeRADER, Chief Judge, NEWMAN, LOURIE,

CLEVENGER, BRYSON, GAJARSA, 1 LINN, DYK, PROST,

MOORE, O’MALLEY, REYNA, and WALLACH, Circuit Judges.

Opinion for the Court filed by Circuit Judge REYNA, in

which Circuit Judges NEWMAN, LINN, DYK, MOORE,

O’MALLEY, and WALLACH join.

Dissenting opinion filed by Circuit Judge BRYSON, in

which Chief Judge RADER and Circuit Judges LOURIE,

CLEVENGER, GAJARSA, and PROST join.

REYNA, Circuit Judge.

ORDER

Dr. Melissa Cloer sought compensation under the Na-

tional Childhood Vaccine Injury Act of 1986, 42 U.S.C.

§§ 300aa-1 to -34 (“Vaccine Act”), alleging that her Hepa-

titis B vaccination caused her multiple sclerosis (“MS”).

The Chief Special Master dismissed her petition as un-

timely, and the United States Court of Federal Claims

affirmed. Dr. Cloer appealed, and although she did not

ultimately prevail on the merits of her Vaccine Act claim,

her appeal prompted a change of law in a limited way

that potentially opens the door to certain Vaccine Act

petitioners who otherwise would have been precluded

from seeking redress.

The court must now decide whether Dr. Cloer is eligi-

ble to receive an award of reasonable attorneys’ fees and

costs in connection with her appeal. The Vaccine Act

1 Judge Gajarsa assumed senior status on July 31,

2011.

provides for the recovery of attorneys’ fees “on a petition

filed under section 300aa-11” when “the petition was

brought in good faith and there was a reasonable basis for

the claim for which the petition was brought.” 42 U.S.C.

§ 300aa-15(e)(1). We believe that a petitioner who asserts

an unsuccessful but non-frivolous limitations argument

should be eligible for a determination of whether reason-

able attorneys’ fees and costs incurred in proceedings

related to the petition should be awarded. Therefore, we

hold that the court has discretion to remand for a deter-

mination of whether Dr. Cloer should be awarded reason-

able attorneys’ fees and costs.

I. BACKGROUND

Dr. Cloer was vaccinated for Hepatitis B in 1996 and

1997. Soon thereafter, she developed symptoms of MS. At

that time, the medical literature was silent as to any

connection between the Hepatitis B vaccination and MS.

Several years later, Dr. Cloer learned of such a potential

connection for the first time. By then her MS had signifi-

cantly progressed.

Dr. Cloer filed a petition for compensation under the

Vaccine Act. The Chief Special Master dismissed her

petition as untimely because it was filed more than 36

months after her first symptom of MS had occurred, and

the Court of Federal Claims affirmed. Cloer v. Sec’y of

Health & Human Servs., 85 Fed. Cl. 141 (2008). Dr. Cloer

appealed, and a panel of this court reversed and re-

manded, ruling that her petition was not time-barred.

Cloer v. Sec’y of Health & Human Servs., 603 F.3d 1341

(Fed. Cir. 2010), vacated, 399 F. App’x 577 (Fed. Cir.

2010).

Due to the importance of the issues raised by Dr.

Cloer, we granted the government’s petition for rehearing

en banc to determine the applicability of the statute of

limitations to Dr. Cloer’s case. Cloer v. Sec’y of Health &

CLOER v. HHS 4

Human Servs., 654 F.3d 1322 (Fed. Cir. 2011) (en banc).

In Cloer, we held that the Vaccine Act’s statute of limita-

tions is not jurisdictional and that some claims brought

under the Vaccine Act are subject to equitable tolling. Id.

at 1344. The court rejected a discovery rule but concluded

that Dr. Cloer’s claim does not meet those equitable

tolling criteria and dismissed her petition as untimely.

Id. at 1340, 1344-45. Prior to Cloer, courts treated

§ 300aa-16(a)(2) as jurisdictional, and applications for

attorneys’ fees related to time-barred petitions were

dismissed for lack of jurisdiction. In other words, if a

petition was untimely, there was no jurisdiction. Cloer

rejected that jurisdictional theory.

Dr. Cloer requested an award of reasonable attorneys’

fees and costs incurred in her appeal. The government

opposed her request on the ground that the Vaccine Act

does not permit such an award in connection with a time-

barred claim.

II. DISCUSSION

The Vaccine Act establishes the criteria to be consid-

ered in determining whether a petitioner is eligible for

attorneys’ fees. Section 300aa-15(e) provides:

(1) In awarding compensation on a peti-

tion filed under section 300aa-11 of this ti-

tle the special master or court shall also

award as part of such compensation an

amount to cover—

(A) reasonable attorneys’ fees, and

(B) other costs,

incurred in any proceeding on such peti-

tion. If the judgment of the United States

Court of Federal Claims on such a petition

does not award compensation, the special

master or court may award an amount of

compensation to cover petitioner's reason-

able attorneys’ fees and other costs in-

curred in any proceeding on such petition

if the special master or court determines

that the petition was brought in good faith

and there was a reasonable basis for the

claim for which the petition was brought.

(emphasis added). In sum, attorneys’ fees are available

where the petition was brought in good faith and there

was a reasonable basis for the claim for which the petition

was brought.

This court has not conducted a good faith and reason-

able basis analysis of Dr. Cloer’s claim; nor did it require

the Special Master or Court of Federal Claims to conduct

such an analysis. Dr. Cloer asserted a reasonable limita-

tions argument, and absent a determination that her

Vaccine Act petition was not brought in good faith or that

the claim for which the petition was brought lacked a

reasonable basis, she should be eligible to receive an

award of reasonable attorneys’ fees and costs incurred in

proceedings related to her petition.

The statutory language of the Vaccine Act supports

our holding. Section 300aa-15(e)(1) provides for the award

of reasonable attorneys’ fees and costs arising from “a

petition filed under section 300aa-11.” As § 300aa-11(a)(1)

indicates, “[a] proceeding for compensation under the

[Vaccine] Program for [a] vaccine-related injury or death

shall be initiated by service upon the Secretary and the

filing of a petition . . . .” § 300aa-11(a)(1) (emphasis

added). The Court of Federal Claims and its special

masters have “jurisdiction over proceedings to determine

if a petitioner under section 300aa-11 of this title is

entitled to compensation under the [Vaccine] Program

. . . .” § 300aa-12(a) (emphasis added). In other words,

CLOER v. HHS 6

when a petition is filed, it commences a proceeding over

which the Court of Federal Claims has jurisdiction.

Unless we conclude that Dr. Cloer’s filing was a “petition

filed,” neither we nor the Court of Federal Claims had

jurisdiction over her appeal. 2

The plain language of the statute indicates that Con-

gress chose not to tie the right to attorneys’ fees to com-

pliance with § 300aa-16. Section 300aa-15(e) does not

reference § 300aa-16; rather, it refers to “a petition filed

under section 300aa-11.” Nor does the plain language of

§ 300aa-11(a)(1) require that a petition be timely filed in

accordance with § 300aa-16. By contrast, § 300aa-

11(a)(2)(A), which refers to civil actions brought in state

or federal court, does require the filing of a petition “in

accordance with section 300aa-16.” 3 The absence of an

analogous reference to § 300aa-16 in the attorneys’ fees

provision suggests that Congress did not intend to require

compliance with § 300aa-16 as a prerequisite for the

recovery of attorneys’ fees.

Other statutory provisions support this interpreta-

tion. Section 300aa-12(b)(1) states that “[i]n all proceed-

ings brought by the filing of a petition under section

300aa-11(b),” the Secretary shall be named as a respon-

2 This interpretation is also consistent with Vaccine

Rule 2, which states that “[a] proceeding for compensation

under the Vaccine Act is commenced by filing a petition”

but does not explicitly require that the petition be filed in

compliance with § 300aa-16.

3 Section 300aa-11(a)(2)(A) provides: “No person

may bring a civil action for damages . . . in a State or

Federal court for damages arising from a vaccine-related

injury or death . . . unless a petition has been filed, in

accordance with section 300aa-16 of this title . . . .”

dent and shall participate and be represented in the

proceedings. Section 300aa-12(b)(2) requires that within

30 days after receiving service of “any petition filed under

section 300aa-11,” the Secretary shall publish notice of

the petition in the Federal Register. Section 300aa-

12(c)(6)(E) obligates the Chief Special Master to report to

Congress the number of “petitions filed under section

300aa-11” annually. Section 300aa-13(c) defines “record”

as the record established on “a petition filed under section

300aa-11.” In referring to “petition[s] filed under section

300aa-11,” these provisions refer to all petitions, not just

those later determined to have been timely filed. Any

requirement that naming the Secretary as a party, pub-

lishing notice in the Federal Register, reporting to Con-

gress, and creating the record be held at abeyance until a

determination is made as to the timeliness of the petition

is unreasonable and would have impractical implications.

Section 300aa-15(e) applies to costs “incurred in any

proceeding on such petition,” and not solely those fully

adjudicated on the merits. Congress made clear that

denying interim attorneys’ fees under the Vaccine Act is

contrary to an underlying purpose of the Vaccine Act. See

Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343,

1352 (Fed. Cir. 2008). As we explained in Avera:

[O]ne of the underlying purposes of the Vaccine

Act was to ensure that vaccine injury claim-

ants have readily available a competent bar to

prosecute their claims. Denying interim fee

awards would clearly make it more difficult for

claimants to secure competent counsel because

delaying payments decreases the effective value

of awards. . . . Interim fees are particularly ap-

propriate in cases where proceedings are pro-

tracted and costly experts must be retained.

CLOER v. HHS 8

Id. (emphasis added) (citation omitted); see also H.R. Rep.

No. 99-908, at 22 (1986) (“the Committee does not intend .

. . to limit petitioners’ ability to obtain qualified assis-

tance and intends . . . that the court exercise its discretion

to award fees [resulting from] non-prevailing, good faith

claims.”).

The overarching purpose of the Vaccine Act and the

National Childhood Vaccine Injury Compensation Pro-

gram it created is to award compensation “to vaccine-

injured persons quickly, easily, and with certainty and

generosity.” H.R. Rep. No. 99-908, at 3. Remedial legisla-

tion like the Vaccine Act should be construed in a manner

that effectuates its underlying spirit and purpose. See

Atchison, Topeka, & Santa Fe Ry. Co. v. Buell, 480 U.S.

557, 561-62 (1987). Our interpretation of the statute

fulfills congressional intent and the Act’s legislative

purpose. Congress acknowledged that “[l]awsuits and

settlement negotiations can take months and even years

to complete. Transaction costs – including attorneys’ fees

and court payments – are high. And in the end, no recov-

ery may be available. Yet futures have been destroyed

and mounting expenses must be met.” H.R. Rep. No. 99-

908, at 6. Congress recognized that having to shoulder

attorneys’ fees could deter victims of vaccine-related

injuries from seeking redress.

Congress did not intend for only prevailing petitioners

to receive an award of reasonable attorneys’ fees and

costs. To the contrary, compensation on a petition should

include “an amount to provide for reasonable attorneys’

fees and other costs incurred in proceedings on the peti-

tion. But even where the court does not award compensa-

tion on a petition, it may, in its discretion, make such an

award for attorneys’ fees and costs if it determines that

the action was brought in good faith and that there was a

reasonable basis for the claim for which the action was

brought.” Id. at 21 (emphasis added).

The statutory language requiring a reasonable basis

for the claim for which the petition was brought is broad

enough to encompass the statute of limitations issue as

well as the underlying merits of the claim. It is beyond

dispute that Congress intended attorneys’ fees to be

awarded only in cases brought in good faith and where

there was a reasonable basis for the claim underlying the

petition, even where the petitioner does not prevail. The

good faith and reasonable basis requirements apply to the

claim for which the petition was brought; this applies to

the entire claim, including timeliness issues. Attorneys’

fees should be denied if on remand, it is determined that

the petition was not brought in good faith or there was no

reasonable basis for the claim for which the petition was

brought.

Finally, Dr. Cloer deserves a determination as to

whether she is eligible to receive attorneys’ fees because

her appeal inspired a shift in vaccine jurisprudence.

Indeed, the government does not dispute the reasonable-

ness of Dr. Cloer’s underlying claim or allege that it was

not brought in good faith, which is generally presumed.

The confines of the Vaccine Act make clear that a peti-

tioner need not prevail to receive attorneys’ fees.

The dissent contends that Dr. Cloer is not entitled to

attorneys’ fees as a matter of law and creates a rigid rule

applicable to requests for attorneys’ fees in vaccine cases

where the petitioner’s claim is rejected solely on limita-

tions grounds. Cloer overruled our precedent treating the

statute of limitations as jurisdictional and did not endorse

the underlying statutory interpretation of such cases.

Rather, it eliminated the entire bases for such opinions.

Despite this, the dissent would treat Dr. Cloer’s petition

under a pre-Cloer analysis by retroactively eliminating

CLOER v. HHS 10

jurisdiction to award attorneys’ fees in connection with an

unsuccessful statute of limitations argument.

The dissent, primarily in footnote one, argues that

§ 12 vests the Court of Federal Claims and special mas-

ters with jurisdiction to determine whether a petitioner is

eligible to file a petition, even if the petition is later

deemed untimely. See Dis. Op. at 2 n.1. This construction

of “petition filed” for purposes of § 300aa-15(e) is inconsis-

tent with the language of the Vaccine Act. Because

§ 300aa-16(a) states that “no petition may be filed” if it is

untimely, the dissent creates a distinction between a

“filing a petition” for purposes of § 300aa-11 and a “peti-

tion filed” for purposes of § 300aa-15(e) and other statu-

tory provisions. Under this reasoning, an untimely filed

petition is a “petition” sufficient to commence proceedings

but is not a “petition filed” for purposes of § 300aa-16 and

§ 300aa-12. Such a distinction between “petitions” and

“petitions filed” leads to absurd results, namely that

neither this court nor the Court of Federal Claims had

jurisdiction over Dr. Cloer’s petition.

The dissent also contends that Dr. Cloer is not enti-

tled to attorneys’ fees because the Vaccine Act requires an

evaluation of the reasonableness of the claim for which

the petition was brought, which indicates that Congress

did not contemplate awarding attorneys’ fees in a case

that never reached a merits determination. See Dis. Op.

at 4. However, as explained above, § 300aa-15(e) explicitly

refers to fees “incurred in any proceeding on such peti-

tion,” including non-frivolous petitions ultimately unsuc-

cessful on limitations grounds. Holding that attorneys’

fees are only available where a petition has been sub-

jected to a final adjudication on the merits is also incon-

sistent with the recognized practice of awarding interim

attorneys’ fees, which by definition does not require a

final adjudication on the merits.

The dissent claims that “the legislative history of the

Vaccine Act is silent as to the reason for the Act’s highly

unusual attorney fee provision” and goes on to speculate

on Congress’s motivation for departing from the typical

American Rule of fee awards. See Dis. Op. at 5 (“It may

well be that Congress concluded . . .”); id. (“Congress could

well have concluded . . .”). Such speculation is unneces-

sary, however, in light of the remedial nature of the

Vaccine Act and Congress’s intent to facilitate awards to

injured parties.

The dissent advocates adoption of a strict rule that

strips discretion from the court and in so doing disregards

the Vaccine Act’s spirit and purpose. The dissent’s inter-

pretation would discourage potential Vaccine Act peti-

tioners from pursuing claims and ignores that potential

petitioners will likely be reluctant to bring claims under

the Vaccine Act for fear of significant financial risk even

when strong arguments exist to challenge the applicabil-

ity of the statute of limitations.

III. CONCLUSION

This Order recognizes that issues relating to the

award of attorneys’ fees in connection with challenges

brought on limitations grounds will frequently arise in

vaccine injury cases. Under Cloer, the Vaccine Act does

not incorporate a discovery rule, and the statute of limita-

tions begins to run on “the calendar date of the occurrence

of the first medically recognized symptom or manifesta-

tion of onset of the [claimed] injury,” subject to the doc-

trine of equitable tolling. Cloer, 654 F.3d at 1325, 1340,

1344-45. If a discovery rule were adopted, as Dr. Cloer

now urges in the Supreme Court, the limitations inquiry

in vaccine injury cases would then become when the

claimant first discovered or should have discovered the

potential cause of the disease or injury, rather than when

CLOER v. HHS 12

the claimant first experienced symptoms. 4 Under either

view, a petitioner may become embroiled in litigation

regarding the statute of limitations, and today’s order will

enable reasonable claims for attorneys’ fees arising from

that litigation.

A petitioner who asserts an unsuccessful but non-

frivolous limitations claim should be eligible for a deter-

mination of whether reasonable attorneys’ fees and costs

incurred in proceedings related to his or her petition

should be awarded. Therefore, we remand for a determi-

nation as to whether Dr. Cloer’s petition was brought in

good faith and whether the claim for which her petition

was brought had a reasonable basis.

Accordingly,

IT IS ORDERED THAT:

Dr. Cloer’s application for reasonable attorneys’ fees

and costs be remanded to the Court of Federal Claims.

The Court of Federal Claims is directed to make a deter-

mination consistent with this Order.

FOR THE COURT

April 11, 2012 /s/ Jan Horbaly

Date Jan Horbaly

Clerk

4 Dr. Cloer filed a petition for certiorari in the

United States Supreme Court on December 29, 2011.

United States Court of Appeals

for the Federal Circuit

__________________________

MELISSA CLOER, M.D.,

Petitioner-Appellant,

v.

SECRETARY OF HEALTH AND HUMAN

SERVICES,

Respondent-Appellee.

__________________________

2009-5052

__________________________

Appeal from the United States Court of Federal

Claims in 05-VV-1002, Judge Lawrence J. Block.

__________________________

BRYSON, Circuit Judge, with whom RADER, Chief

Judge, and LOURIE, CLEVENGER, GAJARSA, and PROST,

Circuit Judges, join, dissenting.

The question whether a party who has filed an un-

timely Vaccine Act petition is entitled to an award of

attorneys’ fees under section 15(e)(1) of the Act, 42 U.S.C.

§ 300aa-15(e)(1), presents a difficult statutory construc-

tion issue. While there is no clear path to the answer in

the plain language or legislative history of the Vaccine

Act, I believe that close attention to the text that Con-

gress chose and consideration of the role of the fee-

shifting provision both in the Vaccine Act and in the

CLOER v. HHS 2

broader context of federal fee-shifting statutes require

that we deny the fee request in this case.

1. In Brice v. Secretary of Health & Human Services,

358 F.3d 865, 869 (Fed. Cir. 2004), this court held that the

attorneys’ fees provision of the Vaccine Act makes fees

available only “in connection with a petition filed under

section 300aa-11,” and that a petition dismissed on

grounds of untimeliness is not “a petition filed under

section 300aa-11,” as required by section 15(e). Similarly,

in Martin v. Secretary of Health & Human Services, 62

F.3d 1403, 1406 (Fed. Cir. 1995), the court explained that

in order for an attorneys’ fee award to be permitted under

section 15(e)(1), “there must first be a judgment ‘on such a

petition’—that is, ‘on a petition filed under section 300aa-

11.’” While this court’s en banc decision in Cloer v. Secre-

tary of Health & Human Services, 654 F.3d 1322 (Fed.

Cir. 2011), overruled Brice and Martin insofar as they

were based on lack of subject matter jurisdiction, see 654

F.3d at 1341 & n.9, the en banc court did not disavow the

analysis of the statutory structure in those cases, and

that analysis is still sound. In substance, as modified by

the en banc decision in Cloer, Brice and Martin stand for

the following principles: (1) section 16(a) of the Vaccine

Act directs that “no petition may be filed for compensation

under the Program”—and thus under section 11—after

the expiration of the applicable time period, 42 U.S.C.

§ 300aa-16(a); (2) section 15(e)(1) allows an attorneys’ fee

award only when a petition is filed under section 11, id.

§ 300aa-15(e)(1); and therefore (3) an attorneys’ fee award

may be made only if the claimant files a timely petition,

either by satisfying the applicable limitations period of

section 16 or successfully invoking equitable tolling. 1

1 This interpretation of the statute does not, as the

majority opinion suggests, create a jurisdictional impasse.

3 CLOER v. HHS

Besides the reference to a petition filed under section

11, section 15(e)(1) provides for an award of attorneys’

fees to an unsuccessful petitioner “if the judgment . . . on

such a petition does not award compensation.” Although

that language, standing alone, could be understood to

refer either to a judgment on the merits or to a dismissal

for untimeliness, the statutory context indicates that it

does not refer to a judgment dismissing the petition for

untimeliness. The same language is used in section 21 of

the statute, where it clearly refers only to a judgment on

the merits. That section provides that if “the judgment

did not award compensation,” the petitioner is required to

file “an election in writing to accept the judgment or to file

a civil action for damages for such injury or death.” 42

U.S.C. § 300aa-21(a)(2). Because the timely filing of a

Vaccine Act petition is a prerequisite to filing a civil tort

suit, see id. § 300aa-11(a)(2)(A), a claimant who has filed

an untimely petition is not eligible to file a civil action for

damages. The requirement in section 21 that a petitioner

elect whether to file a civil tort suit when “the judgment

did not award compensation” therefore does not refer to a

claimant whose petition has been denied as untimely. In

light of the meaning given to that phrase in section 21, it

is fair to infer that the parallel reference in section

15(e)(1) to a “judgment [that] does not award compensa-

Section 12 of the Act gives the Court of Federal Claims

and the special masters jurisdiction “over proceedings to

determine if a petitioner under section 300aa-11 of this

title is entitled to compensation.” 42 U.S.C. § 300aa-

12(a). That reference gives the Court of Federal Claims

and the special masters jurisdiction to determine whether

or not the petitioner is eligible under section 16 to file a

petition for compensation, even if the petitioner is ulti-

mately determined not to be eligible to file a petition. See

Martin, 62 F.3d at 1406.

CLOER v. HHS 4

tion” likewise denotes a judgment on the merits, not a

dismissal. 2

Finally, section 16(c) of the Act reinforces the view

that the phrase “a petition filed under section 300aa-11”

in section 15(e) refers to a timely petition. Section 16(c)

provides that if a petition is filed under section 11, state

statutes of limitations shall be stayed for any civil action

brought for the vaccine-related injury, beginning on the

date the petition is filed and ending on the date that an

election is made under section 21 to file the civil action.

42 U.S.C. § 300aa-16(c). Because, as noted, such a civil

action cannot be filed if the petition was untimely, the

reference to “a petition filed under section 300aa-11” in

section 16(c) can only mean a petition filed, as section 11

requires, in accordance with section 16, i.e., within the

statutory time limits. The same language—“a petition

filed under section 300aa-11”—is used as a prerequisite

for the payment of attorneys’ fees and costs in section

15(e), which is a further textual indication that attorneys’

fees and costs are not intended to be paid in cases in

which the petition was untimely.

2 The majority finds support for its decision in Av-

era v. Secretary of Health & Human Services, 515 F.3d

1343 (Fed. Cir. 2008), which held that the Vaccine Act

permits an award of interim fees to petitioners who are

seeking compensation. Avera, however, concerned an

interim award for a petitioner who had filed a timely

petition and therefore was in position to obtain a judg-

ment on the merits, either awarding or denying compen-

sation. Nothing in Avera suggests that a fee award,

whether interim or otherwise, is appropriate for a claim-

ant who has not filed a timely petition. And nothing in

this opinion would prohibit granting interim fees to a

petitioner who has filed a timely petition and is seeking a

compensation award.

5 CLOER v. HHS

2. Although the legislative history of the Vaccine Act

is silent as to the reason for the Act’s highly unusual

attorney fee provision, the requirement that there be a

timely filed petition and a judgment on the merits of the

compensation request, as opposed to a dismissal of the

petition for untimeliness, makes sense in light of the

development and purposes of the Act.

The Vaccine Act evolved from a series of bills that

were introduced over a three-year period. All of the bills

that featured compensation proceedings contained attor-

ney fee provisions, and all of them, until the very end of

the legislative process, required the claimant to be a

prevailing party in order to be eligible for a fee award.

See S. 2117 (Nov. 17, 1983); H.R. 5810 (June 7, 1984);

H.R. 1780 (Mar. 27, 1985); S. 827 (Apr. 2, 1985). Several

of the early proposals would have allowed claimants to

elect to proceed either through the compensation program

or by way of a civil tort remedy. The bill that was ulti-

mately enacted, however, required that claimants exhaust

their remedies through the Vaccine Act compensation

program before filing a tort action. H.R. 5546 (Sept. 18,

1986) (incorporated into S. 1744, which became P.L. 99-

660, Title III of which is the Vaccine Act). The proposed

exhaustion requirement was controversial and sparked

strong opposition from those who did not wish to see any

impediments placed in the way of plaintiffs’ ability to

pursue traditional civil tort remedies. See Vaccine Injury

Compensation: Hearing on H.R. 1780, H.R. 4777, and

H.R. 5184 Before the H. Subcomm. on Health and the

Env’t of the H. Comm. on Energy and Commerce 187, 191,

216 (1986) (statements of Jeffrey H. Schwartz, President,

Dissatisfied Parents Together).

It may well be that Congress concluded that because

it was imposing an additional burden on claimants, it

CLOER v. HHS 6

should make fee awards available to claimants who were

required to go through the compensation program even

though they were not eager to participate in the program

and did not ultimately receive compensation. But since

claimants who file untimely petitions do not enter the

Vaccine Act compensation program and thus do not face

the burden of litigating their entitlement to compensation

on the merits, Congress could well have concluded that it

did not make sense to provide attorneys’ fees to those

parties in connection with their unsuccessful efforts to

avoid the limitations period and gain access to the pro-

gram.

3. In attempting to discern Congress’s purpose in

drafting the attorney fee provision at issue in this case, it

is important to keep in mind some general principles

governing fee-shifting statutes. The background rule

applied by American courts is the “American rule,” under

which each party pays its own fees. See Alyeska Pipeline

Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 245 (1975).

Some statutes permit or direct a departure from that rule,

allowing prevailing parties to obtain an award of attor-

neys’ fees from the losing party under certain circum-

stances. But it is almost unknown in American practice

for a statute to provide that the prevailing party will pay

the losing party’s attorneys’ fees. The Supreme Court put

that point succinctly in Ruckelshaus v. Sierra Club, 463

U.S. 680, 683-84 (1983), where it noted (emphasis in

original):

Our basic point of reference is the “American

Rule,” see Alyeska Pipeline Co. v. Wilderness Soci-

ety, 421 U.S. 240, 247 (1975), under which even

“the prevailing litigant is ordinarily not entitled to

collect a reasonable attorneys’ fee from the loser.”

It is clear that generations of American judges,

7 CLOER v. HHS

lawyers, and legislators, with this rule as the

point of departure would regard it as “quite inap-

propriate” to award the “loser” an attorney’s fee

from the “prevailing litigant.”

The Supreme Court in Ruckelshaus was able to iden-

tify only one federal statute that, as of that time, permit-

ted fee awards to a party whose views were rejected.

That statute applied not to litigation, but to the promul-

gation of rules regarding the regulation of hazardous

chemical substances. Ruckelshaus, 463 U.S. at 685 n.7,

citing 15 U.S.C. § 2605(c)(4)(A).

The statute at issue in this case plainly allows losing

parties to obtain a fee award from the prevailing party in

some circumstances. But because Congress departed

from the governing principles applied in virtually every

other federal fee-shifting statute, we should be cautious in

interpreting the statutory mandate to extend beyond

those cases in which fee-shifting was clearly intended.

See Robert C. Herd & Co. v. Krawill Mach. Corp., 359

U.S. 297, 304-05 (1959) (a rule of law “in derogation of the

common law . . . must be strictly construed”); In re Cres-

cent City Estates, 588 F.3d 822, 826 (4th Cir. 2009) (“Be-

cause fee-shifting statutes are ‘in derogation of the

common law,’ courts are obligated to construe them

strictly.”).

That is particularly true in light of the practical effect

of requiring the government to pay attorneys’ fees to

persons who both fail to file a timely petition and then fail

in their effort to show that their untimeliness was ex-

cused by equitable tolling—which is the only class of

persons potentially affected by the resolution of the fee

issue before us. Section 15(e)(1) of the Vaccine Act pro-

vides that attorneys’ fees can be paid to a petitioner to

CLOER v. HHS 8

whom the court does not award compensation “if the

special master or court determines that the petition was

brought in good faith and there was a reasonable basis for

the claim for which the petition was brought.” 42 U.S.C.

§ 300aa-15(e)(1). As a preliminary matter, it would seem

that if Congress had contemplated that claimants making

untimely filings should be eligible for attorneys’ fees, it

would have required both a reasonable basis for the

underlying claim and a reasonable basis for the equitable

tolling argument; it seems unlikely that Congress would

want to compensate claimants who had a reasonable basis

for the underlying claim but no reasonable basis to qualify

for equitable tolling. More fundamentally, it seems quite

implausible that in a case in which the claimant’s sub-

mission was held to be untimely, Congress would have

wanted the special master and the court to conduct a

collateral proceeding to determine whether, had the claim

been eligible for consideration, it would have had a rea-

sonable chance of success. Yet that is the effect of the

court’s ruling today.

In a case that has gone to judgment on the merits and

the petitioner has lost, it is fairly easy for the special

master and the court to determine whether the peti-

tioner’s position on the merits was reasonable. In that

setting, the special master and the court will have the

entire record of the case before them to enable them to

make that determination. It is an entirely different

matter for the special master to have to conduct a sort of

shadow trial to determine whether, if the claimant had

made a timely filing, the petition would have had a rea-

sonable chance of succeeding. Quite apart from the

burden on the special masters and the court, the amount

of attorney time (and thus the accumulating fees) that

would be consumed by such a proceeding would likely

exceed the fees expended on the typically much simpler

9 CLOER v. HHS

question whether equitable tolling is available to the

claimant. Again, it seems unlikely that Congress envi-

sioned such a scheme, and in the absence of express

congressional authorization, we should be cautious about

engrafting one onto the statute. Caution is especially

warranted in a case authorizing a monetary award

against the government in light of well-settled principles

of sovereign immunity. The Supreme Court has held that

“[e]xcept to the extent it has waived its immunity, the

Government is immune from claims for attorney's fees.”

Ruckelshaus, 463 U.S. at 685-86. And the Court has

recently reaffirmed that “a waiver of sovereign immunity

must be ‘unequivocally expressed’ in statutory text”; that

“[a]ny ambiguities in the statutory language are to be

construed in favor of immunity”; and that “[a]mbiguity

exists if there is a plausible interpretation of the statute

that would not authorize money damages against the

government.” FAA v. Cooper, No. 10-1024 (U.S. Mar. 28,

2012), slip op. 5.

For these reasons, I respectfully dissent.