A deeply divided Federal Circuit Court of Appeals, sitting en banc, has determined that a National Childhood Vaccine Injury Compensation Act (Vaccine Act) claimant, whose petition was filed beyond the applicable statute of limitations, may be able to recover attorney’s fees under a provision allowing an award when “the petition was brought in good faith and there was a reasonable basis for the claim for which the petition was brought.” Cloer v. Sec’y of HHS, No. 2009-5052 (Fed. Cir., decided April 11, 2012). So ruling, the court remanded the matter to the Court of Federal Claims “for a determination of whether reasonable attorney’s fees and costs incurred in proceedings related to the petition should be awarded.”

As noted elsewhere in this Report, the U.S. Supreme Court recently declined to review the claimant’s petition for certiorari; her application under the Vaccine Act for injury allegedly caused by a Hepatitis B vaccine had been denied as time-barred. While claimant Melissa Cloer acknowledged her failure to prevail on the merits of her claim before the Federal Circuit, she contended that “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.”

According to the Federal Circuit majority, “Congress did not intend for only prevailing petitioners to receive an award of reasonable attorney’s fees and costs.… [and t]he 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.” The court also noted that the claimant “deserves a determination as to whether she is eligible to receive attorney’s fees because her appeal inspired a shift in vaccine jurisprudence” given that the court’s August 2011 decision “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.”  

The six dissenting jurists would have adopted a strict rule allowing attorney’s fees for “a timely filed petition and a judgment on the merits of the compensation request” only. They found it “quite implausible that in a case in which the claimant’s submission 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 reasonable chance of success. Yet that is the effect of the court’s ruling today.”