Вы находитесь на странице: 1из 4

PREEMPTION What Is the Scope of Recovery Under the National Childhood Vaccine Injury Act?

CASE AT A GLANCE
Alleging her multiple sclerosis was brought on by a flawed vaccination, Dr. Melissa Cloer filed a petition under the National Childhood Vaccine Injury Act of 1986 (Vaccine Act). The legislation authorizes a no-fault system to adjudicate such claims and grants attorneys fees even for petitions denied, so long as a petition is filed in good faith and with a reasonable basis. A series of court decisions ultimately led to the dismissal of Cloers claims as untimely. Cloer then requested attorneys fees and costs for her unmeritorious claim, which the Federal Circuit granted.

Sebelius v. Cloer Docket No. 12-236 Argument Date: March 19, 2013 From: The Federal Circuit
by Rachel K. Paulose Miami, FL

ISSUE
May an injured person whose petition is dismissed as untimely under the National Vaccine Injury Compensation Program recover attorneys fees and costs from the government?

The statute also places a time bar on claims. No petition may be filed for compensation under the Program for such injury after the expiration of 36 months after the date of the occurrence of the first symptom or manifestation of onset or of the significant aggravation of such injury. 42 U.S.C. 300aa-16(a)(2). Interestingly, Congress also enacted a provision permitting in some cases attorneys fees to a losing party, a reversal of the traditional American rule requiring each party to bear its own costs. In awarding compensation on a petition filed under 300aa-11 of this title the special master or court shall also award as part of such compensation an amount to cover reasonable attorneys fees, and other costs, incurred in any proceeding on such petition. 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 petitioners reasonable attorneys fees and other costs incurred 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. 42 U.S.C. 300aa-15(e)(1). On May 15, 2008, the Chief Special Master appointed by the U.S. Court of Federal Claims dismissed Cloers petition as untimely filed. Specifically, the Chief Special Master found Cloer failed to abide by the statutory requirement that she file her petition within
PREVIEW of United States Supreme Court Cases

FACTS
Dr. Melissa Cloer received a series of hepatitis vaccinations on September 3, 1996; November 11, 1996; and April 3, 1997. Within months of her final vaccination, Cloer began experiencing the first symptoms of what would be provisionally diagnosed as multiple sclerosis (MS) on November 26, 2003. On September 16, 2005, Cloer filed a petition under the National Vaccine Injury Compensation Program alleging she suffered from multiple sclerosis as a result of receiving the immunizations in 1996 and 1997. Congress established the program under the National Childhood Vaccine Injury Act of 1986 (Vaccine Act). In doing so, Congress displaced traditional tort litigation with a no-fault forum to resolve expeditiously claims of injured persons. Congress thus shielded enterprising pharmaceutical companies from the risk of massive tort claims but also provided a mechanism for injured persons to seek redress. The statute provides in relevant part: A proceeding for compensation under the Program for a vaccine-related injury or death shall be initiated by service upon the Secretary and the filing of a petition with the United States Court of Federal Claims. The clerk of the United States Court of Federal Claims shall immediately forward the filed petition to the chief special master for assignment to a special master 42 U.S.C. 300aa-11(a)(1).

228

36 months after the date of the occurrence of the first symptom or manifestation of onset or of the significant aggravation of such injury. On June 16, 2008, Cloer filed a motion to review the Chief Special Masters decision. The Court of Federal Claims affirmed the Chief Special Master in a decision filed November 25, 2008. The court rejected Cloers argument that the statute of limitations should run from the date she first objectively experienced common symptoms of MS, not the date on which she was provisionally diagnosed with MS, noting the statute of limitations issue raised is a condition on the waiver of sovereign immunity by the United States and courts should be careful not to interpret a waiver in a manner that would extend the waiver beyond that which Congress intended. However, on May 6, 2010, the Federal Circuit reversed the Court of Federal Claims, with Judge Clevenger vigorously dissenting. The court held the statute of limitations begins to run when the medical community at large recognizes the symptoms related to a vaccine and the injured person has received medical information suggesting a link between her symptoms and the vaccine. The Federal Circuit granted rehearing on banc. On August 5, 2011, the en banc court reversed the panel decision and dismissed Cloers claim as time barred. In a decision authored by Judge Clevenger, the court held the Vaccine Acts statute of limitations begins to run on the date of the first medically recognized symptom of the onset of any injury claimed by the victim, not the date on which an injury is diagnosed. Finding Cloers first symptom of MS occurred more than 36 months before the filing of her petition, the court dismissed her petition as time barred. Significantly, the court overruled its prior precedent and held the Vaccine Acts statute of limitations was not jurisdictional. The Supreme Court denied certiorari on April 16, 2012. Cloer then sought attorneys fees and costs. In a 7-6 decision issued April 11, 2012, the Federal Circuit ruled attorneys fees and costs could be awarded as long as an unmeritorious petition was brought in good faith and with a reasonable basis. The court remanded to determine whether Cloers petition was reasonable and brought in good faith. Noting Congress expressly provided attorneys fees and costs to even losing parties under the Vaccine Act, the court held there was no justification for preventing a party that lost specifically on statute of limitation grounds to recover attorneys fees and costs. The court also noted Cloers untimely petition nevertheless had 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 dissent interpreted the Vaccine Acts 16(a)(2), barring untimely petitions, in conjunction with 15(e)(1), allowing fees and costs only to petitions filed, as leading inexorably to the conclusion that attorneys fees were permissible only on timely filed petitions, whether meritorious or not. That is, the dissent interpreted the statute to mean an untimely filed petition was not a petition filed under the Vaccine Act. Therefore, no fee award could be granted to an untimely petition.

The Court granted certiorari on November 20, 2012, to determine whether attorneys fees and costs could be awarded despite Cloers loss on statute of limitations grounds.

CASE ANALYSIS
The government urges the Court to rule an untimely petition is not a petition filed under 300aa-11 of the Vaccine Act. Adopting the reasoning of the Federal Circuit judges in dissent, the governments argument hinges on its conjunctive reading of two subsections of the Vaccine Act. First, the government notes 42 U.S.C. 300aa-16(a) (2) states no petition may be filed for compensation, after the statute of limitations of 36 months. Second, the government notes 42 U.S.C. 300aa-15(e)(1) grants attorneys fees and costs only for a petition filed under the Vaccine Act. Thus, the government makes a textual argument: Because compliance with the limitations provision is a statutory prerequisite to the filing of a petition for compensation under the program, a petition that has been dismissed for failure to comply with the Acts time limits is not a petition filed under 300aa-11. And in the absence of a petition filed under 300aa-11, there is no statutory basis for awarding attorneys fees and costs. The government also argues the Vaccine Act links attorneys fees and costs to timeliness because both 11(a)(1) and 16(a) (2) refer to a petition filed. The government appears to argue petition filed is a term of art which simply obviates the need for other cross-references to the limitations provisions. An additional cross-reference within 15(e)(1), claims the government, would be redundant. Cloer responds the Vaccine Act, on its face, does not categorically bar the award of attorneys fees and costs merely because the basis for a dismissed petition is failure to comply with the statute of limitations requirement, as opposed to any other basis for denial of a petition. Cloer argues the government improperly engrafts 16(a)(2) onto 15(e)(1). Cloer also complains the governments argument is not based on the basic text of 15(e)(1) or 11(a)(1), the provision expressly cross-referenced in 300aa-15(e)(1). Rather, says Cloer, the governments interpretation substitutes a cross-reference to 16(a)(2), which Congress simply did not cite itself in 15(e) (1). Cloer declares, By any measure that is an unusual way to read a statute. Cloer states the statute simply requires a victim to file a petition with the Special Master and the Court of Federal Claims. A filed petition is any petition placed in the court record, regardless of its ultimate merits. Cloer argues 15(e)(1) does not contain an exception for petitions denied on limitations grounds or denied on any other reason. Thus, argues Cloer, the governments interpretation of 15(e)(1) substitutes a requirement Congress did not mandate (compliance with 16(a)(2)) with the only requirement Congress did mandate (compliance with 300aa-11). Cloer argues, Congresss failure to impose that requirement in Section 15(e)(1) must be regarded as a deliberate choice, and one to be honored rather than ignored.

PREVIEW of United States Supreme Court Cases

229

Cloer also contends the governments arguments would be more persuasive if the statute of limitations was jurisdictional. Here, however, Cloer urges the Court to adopt the reasoning of the lower court in holding the statute of limitations is not jurisdictional. Cloer contends that under the governments reasoning that an untimely petition is not a filed petition under the Vaccine Act, the federal courts would not possess jurisdiction to determine the merits of an untimely petition. Cloer maintains this is an illogical reading of the statute. The government also advances extratextual arguments in favor of its more limited reading of the Vaccine Act. First, the government states congressional intent in enacting the Vaccine Act was to stabilize the vaccine market, preempt contrary state law, and streamline the recovery process for injured persons. The government suggests Cloers reading of the statute would undermine congressional intent by complicating the process without compensating injured persons. Cloer protests the governments most ardent arguments are policy arguments, not statutory arguments. Nevertheless, says Cloer, congressional intent in establishing the Vaccine Act was to establish a superior alternative to the civil tort system and to encourage a reliable supply of vaccines by reducing the burden of civil litigation. Cloer argues that since the purpose of the Act is to establish a no-fault compensation program and attorneys are prohibited from seeking funds from clients, recovery of attorneys fees and costs under the program is the only means of compensating the investment attorneys make on behalf of victims. Thus, Cloer contends the governments policy arguments are misplaced and unfair to attorneys already invested in a case and to their clients, who must have access to a pool of competent counsel willing to make such an investment. The government also claims Cloers reading is inconsistent with the structure and purpose of the Vaccine Act because it would necessitate a shadow trial, which would not result in compensation for injured persons. This shadow trial would simply result in a boon for plaintiffs lawyers on petitions already denied on their merits, complains the government. To support this claim, the government notes when compensation is not awarded, a fee award is authorized only when the failed petition nonetheless has a reasonableness basis and was brought in good faith. The government asserts this good faith, reasonable basis determination is easy to make for a typical rejected petition because the record already compiled would allow a special master to expeditiously make that determination. In the case of a Vaccine Act petition dismissed as untimely filed, however, the government claims the record may not reveal the substance of the claim or analysis of its merits. Rather, because the sole issue for dismissal is the date of the first occurrence of symptoms of an injury resulting from a flawed vaccine, the issue of whether a victims injury was caused by a covered vaccine will generally be left unaddressed. With a gap in the record, hypothesizes the government, a special master would have to conduct a shadow trial to determine if a petition was brought in good faith. Moreover, the government asserts, a victims arguments would be internally inconsistent, simultaneously attempting to diminish the significance of early symptoms in an effort to avoid dismissal on statute of limitations grounds while also arguing those

very symptoms establish the nexus between the vaccination and illness on good faith and reasonableness grounds. The government complains this collateral proceeding would be wasteful and complex. It would also occur after the special master had determined the petition was barred and the victim herself was not entitled to expenses. Thus, Cloers argument would do nothing to aid victims or even alleged victims. It would, however, be a great boon for attorneys. Attorneys fees ought not result in a second major litigation, urges the government. At bottom, the government worries that awarding attorneys fees and costs even where petitions are dismissed as untimely would incentivize frivolous litigation. The Vaccine Acts award funds are limited, the government reminds the Court. A shadow trial system that depletes this limited fund would further undermine congressional intent to create a system designed to work faster and with greater ease than the civil tort system. Cloer characterizes the shadow trial theory as the crux of the governments concern, which is in any event a policy argument, not a legal argument. Cloer argues that fee awards denied on any grounds, not simply time-barred claims, could be described as wasteful. That however, did not stop Congress from authorizing fees for failed petitions. Cloer dismisses the governments argument as overblown. Cloer contends a determination of a petitions good faith and reasonableness would not require nearly the effort the government portrays. Cloer also expresses confidence that special masters, who routinely make good faith, reasonable basis determinations about petitions denied on procedural grounds without a hearing, will be able to make the same determinations about Vaccine Act petitions without the specter of convoluted shadow trials. Cloer protests that a position adopting the governments arguments would reject untimely petitions even if brought in good faith and with a reasonable basis, the only two statutory requirements for recovery of attorneys fees and costs. This good faith, reasonable basis test, says Cloer, applies to the entire petition process, including the timeliness question. Cloer and the appeals court both also point out even the government does not contend Cloers petition would fail the good faith, reasonable test. Cloer argues her petition was filed in good faith. At the time she filed it, the case law provided it was timely. Although the law subsequently changed, Cloer says, she filed her petition believing it was meritorious. Under these conditions, Cloer met the only conditions Congress placed to permit recovery of attorneys fees and costs: good faith and reasonableness. Attorneys fees and costs are mandated when a petition is granted under the Vaccine Act. The government acknowledges the Vaccine Act allows, but does not require, the award of attorneys fees and costs, even when a petition does not result in a favorable judgment, a departure from the American rule under which each party typically pays its own fees. That very generosity, asserts the government, counsels hesitation to award monies even more generously than Congress intended. A federal fee-shifting statute such as the Vaccine Act should be construed narrowly, argues the government. But a shadow trial on the merits after a petition has already been dismissed as untimely is inconsistent with this narrow reading.
PREVIEW of United States Supreme Court Cases

230

Cloer agrees the Vaccine Act is generous and warns the governments uncharitable argument undermines the very generosity the Vaccine Act was meant to foster. Cloer cautions the greatest danger is in reading the statute too narrowly rather than too broadly. She further expresses confidence in the ethics of attorneys who must have a good faith basis for bringing any suit, given the sanctions applicable to frivolous claims. Finally, the government argues principles of sovereign immunity disfavor the award of attorneys fees and costs where petitions are dismissed as untimely. The government urges the sovereign immunity of the United States should be strictly construed, particularly as the money raised for the Vaccine Act fund is collected pursuant to congressional authority to lay and collect excises. Cloer disagrees. First, Cloer argues sovereign immunity does not apply where, as here, the government has assumed the status of a private commercial enterprise. Further, she states, The risk here lies not in expanding the waiver beyond that which Congress provided, but in narrowing that express waiver by implying an exception to it that Congress did not intend. Cloer notes the fund balance stands at a healthy $3.5 billion and is therefore hardly at risk of imminent depletion.

A loss for Cloer may discourage personal injury attorneys from taking cases where significant time has elapsed from the time of the vaccination to the time of filing. Attorneys may fear they will later be shown to have missed symptoms that pointed to earlier onset of injury. Those plaintiffs lawyers may also be forced to rely more heavily on medical experts early on to determine whether or not a case is worth an investment of their time and resources. Amici supporting Cloer warn a decision adverse to her will have a chilling effect on injured persons and their counsel, who already wage uphill battles against a formidable opponent. The Courts decision will impact the cost-benefit analysis of the plaintiffs bar in taking on vaccination injury cases.

Rachel K. Paulose is a graduate of Yale Law School. She worked as an associate at Williams & Connolly LLP. She has also served extensively in government, including as a law clerk to Eighth Circuit Court of Appeals Judge James B. Loken; a trial attorney in the Voting Section, Civil Rights Division of the U.S. Department of Justice; an assistant U.S. Attorney; and a presidentially nominated, Senate-confirmed U.S. Attorney. She can be reached at rkpaulose@hotmail.com. PREVIEW of United States Supreme Court Cases, pages 228231. 2013 American Bar Association.

SIGNIFICANCE
The Vaccine Act is unusual legislation in that it grants attorneys fees even to losing parties. The government predicts allowing attorneys fees and costs to losing parties, when the loss is predicated upon the failure to timely file a petition, will expose the government program to plunder. Such plunder reduces the amount of funds available to valid claims. A decision for Cloer will mean a victory for personal injury lawyers and a possible increase in filing of even untimely claims, the government contends. Cloer points out such alleged incentives to raid the fund already exist since the Vaccine Act explicitly permits awards to losing parties, and yet the fund presently holds a considerable surplus. Cloer maintains attorneys may be trusted to comply with their ethical obligations to file meritorious claims. Further, Cloer reasons since attorneys are not permitted to charge clients bringing suit under the Vaccine Act, recovery of attorneys fees and costs is the only method of compensating attorneys who bring good faith, but ultimately unmeritorious, claims.

ATTORNEYS FOR THE PARTIES


For Petitioner Kathleen Sebelius, Secretary of Health and Human Services (Donald B. Verrilli Jr., Solicitor General, 202.514.2217) For Respondent Melissa Cloer (Robert T. Fishman, 303.590.8143)

AMICUS BRIEFS
In Support of Respondent Melissa Cloer Elizabeth Birt Center for Autism Law and Advocacy et al. (Robert J. Krakow, 212.227.0600) National Vaccine Information Center, the Vaccine Injured Petitioners Bar Association, and the George Washington University Law School Vaccine Injury Clinic (Clifford J. Shoemaker, 703.281.6395)

Tracking the Term*


52 Number of oral arguments 23 Number of cases (granted full review and oral argument) decided 6 Days of oral argument remaining 75 Number of cases granted to date

*As of March 12, 2013

PREVIEW of United States Supreme Court Cases

231

Вам также может понравиться