WASHINGTON, D.C. - (Mealey's) The U.S. Supreme Court on March 19 questioned the federal government about whether a petitioner who made an untimely claim made to the National Vaccine Injury Compensation Program is eligible for attorney fees and costs (Kathleen Sebelius, et al. v. Melissa Cloer, No. 12-236, U.S. Sup.) [lexis.com subscribers may access Supreme Court briefs for this case].
(Transcript available. Document #28-130321-013T.)
Melissa Cloer, a doctor, received a hepatitis B vaccine in 1996 and developed symptoms of multiple sclerosis (MS). Several years later, after she learned of a possible connection between the vaccine and MS, Cloer filed a petition with the U.S. Court of Federal Claims, which administers the compensation program.
A special master dismissed Cloer's petition as untimely because it was filed more than 36 months after her first symptoms of MS. Cloer appealed, and the Federal Circuit U.S. Court of Appeals eventually ruled that while some vaccine claims are subject to equitable tolling, Cloer's claim did not meet that criteria and her claim was untimely.
Lost But Got Fees, Costs
Cloer later moved for attorney fees and costs. The Justice Department, which litigates vaccine compensation claims, opposed.
The Federal Circuit last year ruled that petitioners can request fees and costs for untimely claims if they are made in good faith and have a reasonable basis.
The government appealed to the Supreme Court.
Counting 'Filed' Cases
Justice Ruth Bader Ginsburg asked whether the administration reports in the Federal Register and to Congress about all vaccine petitions filed, including those filed out of time. Benjamin J. Horwich, assistant to the U.S. solicitor general, arguing on behalf of the government, said all petitions are reported. He said any petition filed "commenced" even if it is later found untimely.
Several justices questioned Horwich on whether timeliness of a petition is an affirmative defense or a jurisdictional issue. Horwich said the government does not see it as a jurisdictional issue.
Justice Antonin Scalia said it appears that the question of whether to award attorney fees looks not at whether the case was valid when it is filed but what the judgment is at the end of the case. Horwich said, "It's still a judgment, but it is, it is not a judgment in connection with a petition that should be regarded as having been filed timely."
No 'Record' For Fees?
Justice Sonia Sotomayor questioned what Horwich meant when he said "there is no record available" on a petition. He said there is no record on which to find a fee award.
Justice Sotomayor said she was confused. "Are you suggesting that the record shouldn't be filed in that case or that the record supports the conclusion that it was untimely? Or neither?" she asked.
Horwich said that if the special master determines that the statute of limitations applies, there should be consequences, such as the lack of fees and costs.
Justice Sotomayor asked if what was worrying the government is the "shadow trial" over fees. Horwich said it is.
Justice Stephen G. Breyer asked was is "so terrible" about a paying attorney fees for petitioner who thought they had a good claim and was reasonable in filing a timely claim. Horwich said there is a question of "whether additional cases would be attractive to the program."
Horwich said the concern is that the special master will expend limited resources on claims that are untimely.
Fees Allowed, Win Or Lose
Robert T. Fishman of Ridley, McGreevy & Winocur in Denver, arguing for Cloer, said the National Childhood Vaccine Injury Act is clear that any petition is eligible for fees even if it's denied as long as it is filed in good faith and with a reasonable basis.
Asked about shadow trials, Fishman said the government does not cite any case where there has been a fee hearing held.
In answer to a question by Justice Sotomayor, Fishman said vaccine petitions are "front-loaded" with all medical material or expert affidavits filed with the petition, not developed during a discovery period.
"So is your bottom line that the record is already there for the shadow determination?" Justice Sotomayor asked. Fishman said it is.
In answer to a question from Chief Justice John G. Roberts Jr., Fishman said that just because a petition is filed in good faith with a reasonable basis "does not necessarily mean you get fees. . . . It is discretionary."
In Cloer's case, Fishman said the question of whether she prevailed for the award of fees was decided by a three-judge federal appeals panel. He noted that the question about the timeliness of Cloer's claim was litigated for several years and was made in good faith on a reasonable basis.
Justice Anthony Kennedy said that the streamlined nature of the vaccine claims program "indicates to me we should be very careful to enforce the policy of the rule which is to deter the filing of stale claims." Fishman said the fees provision of the law was part of Congress' intention to streamline the compensation process.
In answer to another question from Chief Justice Roberts, Fishman said determination about equitable tolling "would be a case-by-case determination." He said the equitable tolling ruling in Cloer's case requires a strong case from filing attorneys.
"Is this going to bankrupt the, the system?" asked Justice Samuel Alito. "I can't imagine how it would even really put much of a dent in that government obligation," Fishman said.
Fishman added that in 25 years, the vaccine program has paid $2.4 billion in compensation and about $160 million in fees for petitioners who won or lost. He said that after 25 years, any frivolous filings to get fees and costs would have amounted to more than 6 percent of compensation.
Justice Scalia told Fishman, "I agree with you it's a terrible, it's a terrible, outrageous thing for the Government to do, to win the case and get - get stare decisis effect, and then to say you can't get lawyers' fees because there's never been a case, right?" Fishman said he was correct.
The government is represented in its briefs by Solicitor General Donald B. Verrilli Jr., Acting Assistant Attorney General Stuart F. Delery, Deputy Solicitor General Malcolm L. Stewart, Michael S. Raab, Anisha S. Dasgupta Vincent J. Matanoski, Lynn E. Ricciardella and Horwich of the Justice Department and Acting General Counsel William B. Schultz, David Benor and Anna Loraine Jacobs of the Department of Health and Human Services, all in Washington.
Cloer is represented in her brief by Mari C. Bush of Kay & Bush in Denver.
Robert J. Krakow of the Law Office of Robert J. Krakow in New York and Kevin Conway of Conway, Homer and Chin-Caplan in Boston representamicus curiae the Elizabeth Birt Center for Autism Law and Advocacy and 19 other patient and parent advocacy groups.
Clifford J. Shoemaker of Shoemaker, Gentry & Knickelbein in Vienna, Va., and Peter H. Meyer of the George Washington University Law School in Washington represent amicus National Vaccine Information Center.
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