Cloer v. Sec'y of Health & Human Servs.

• Decision Date: 11 April 2012
• Docket Number: No. 2009–5052.,2009–5052.
• Citation: 675 F.3d 1358
• Parties: Melissa CLOER, M.D., Petitioner–Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent–Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

675 F.3d 1358

Melissa CLOER, M.D., Petitioner–Appellant,

v.SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent–Appellee.

No. 2009–5052.

United States Court of Appeals, Federal Circuit.

April 11, 2012.

Robert T. Moxley, Robert T. Moxley, P.C., of Cheyenne, WY, filed an application for attorneys' fees and costs for petitioner-appellant. Mari C. Bush, Kaye and Bush, LLC, of Denver, CO, filed a supplement to the application. Of counsel was Robert T. Fishman, of Denver, CO.

Anisha S. Dasgupta, Attorney, Appellate Staff, Civil Division, United States Department of Justice, of Washington, DC, filed an opposition for respondent-appellee. With her on the opposition were Tony West, Assistant Attorney General, and Thomas M. Bondy, Attorney.

Before RADER, 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.

ON APPLICATION FOR ATTORNEYS' FEES AND COSTS

REYNA, Circuit Judge.

ORDER

Dr. Melissa Cloer sought compensation under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa–1 to –34 (“Vaccine Act”), alleging that her Hepatitis B vaccination caused her multiple sclerosis (“MS”). The Chief Special Master dismissed her petition as untimely, 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 eligible to receive an award of reasonable attorneys' fees and costs in connection with her appeal. The Vaccine Act 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 reasonable 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 determination of whether Dr. Cloer should be awarded reasonable 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 significantly 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 remanded, 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 Fed.Appx. 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 & Human Servs., 654 F.3d 1322 (Fed.Cir.2011) (en banc). In Cloer, we held that the Vaccine Act's statute of limitations 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 considered in determining whether a petitioner is eligible for attorneys' fees. Section 300aa–15(e) provides:

(1) In awarding compensation on a petition filed under section 300aa–11 of this title 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 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 petitioner's 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.

(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 reasonable 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 limitations 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, 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 Congress chose not to tie the right to attorneys' fees to compliance 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 interpretation. Section 300aa–12(b)(1) states that “[i]n all proceedings brought by the filing of a petition under section 300aa–11(b),” the Secretary shall be named as a respondent 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, publishing notice in the Federal Register, reporting to Congress, 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 claimants 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...