On Tuesday, the Court will consider a pair of cases about the legal regimes for dealing with the unavoidable injuries associated with the use of pharmaceuticals.  I previously have written about Mutual Pharmaceutical v. Bartlett, which considers the propriety of state-court tort relief for consumers injured by known side effects of generic pharmaceuticals.  Before that, however, the Court will consider a dispute under the Vaccine Act, which establishes a compensation scheme for individuals injured by vaccines:  that case is Sebelius v. Cloer.

The scheme, which is most unusual, provides no-fault compensation for individuals who suffer specified injuries within a specified time window after taking listed vaccines (the so-called “Table” cases, because the vaccines, injuries, and windows are specified in a table).  A separate, slightly more complex, process, permits recovery for injuries not listed in the Table, but requires the claimant to prove some causal connection between the injury and the vaccine. A claimant who suffers a covered injury seeks relief by filing a petition with the Secretary of Health and Human Services (currently the petitioner, Kathleen Sebelius).  The petition is adjudicated by a special master and reviewed by the Court of Federal Claims; all appeals go to the Federal Circuit.  Awards come from a fund generated by a small tax on vaccines covered by the program.  A claimant who remains unsatisfied with the program can file a tort suit under state law, but only after seeking relief under the Vaccine Act program.

The issue in this case arises from one of the oddities of the program.  Concerned that the costs of conventional litigation in this technology-rich area would divert resources from compensation, Congress required a spare worker’s compensation-style adjudicative process and barred attorneys from charging fees for representing the claimants.  At the same time, the program provides that the fund will pay attorney’s fees for all petitions (meritorious or not) filed in good faith and with a substantial basis.

The specific problem here arises because the respondent, Dr. Cloer, filed her claim for compensation quite late.  On its face, the Vaccine Act appears to be quite specific in its mandate that all claims be filed within three years of the first symptom.  Dr. Cloer’s 2005 petition thus seems quite obviously out of time for multiple-sclerosis symptoms first noticed in 1997.  Still, the Federal Circuit and the Court of Federal Claims, both struggling with the implications of the obvious benevolence of the program, have at various times developed a variety of doctrines that have excused rigorous enforcement of the statutory filing deadline.  Accordingly, it is fair to say, it was not entirely clear when Cloer filed her petition that it would be rejected as untimely.

As it happens, it took six years of litigation for the lower courts to conclude definitively that the petition was untimely.  After the special master and the Court of Federal Claims dismissed the petition, a divided panel of the Federal Circuit reversed.  The Federal Circuit took the case en banc and then (over vigorous dissent) held the petition untimely.  Dr. Cloer’s petition for certiorari was denied in the spring of 2011.

At that point, back in the Federal Circuit, Dr. Cloer sought more than $100,000 in attorney’s fees, based on her good faith in seeking relief and the substantial basis for filing the petition (evidenced by her apparent Table injuries and the division among Federal Circuit judges in assessing the timeliness of the petition).  Sitting en banc, the Federal Circuit ruled by a vote of seven to six that fees were available (over Judge Bryson’s emphatic dissent).

In the Supreme Court, the briefing seems quite closely divided on the statutory question.  The government’s position is predictably formalistic.  The statute conditions fee awards on the claimant’s filing a “petition” in good faith and with a substantial basis.  Section 16 of the Vaccine Act provides that “no petition may be filed” after the three-year window.  Thus, the government reasons, the pleading that Dr. Cloer filed, because it turned out to be untimely, was not a “petition” for purposes of the fee award provision.

The government’s strongest argument plays to the Court’s predilection for narrow interpretations of waivers of sovereign immunity.  The government emphasizes how unusual it is in the American system to award fees to a prevailing party.  The Vaccine Act’s system awarding fees to a losing party is perhaps unique.  To extend that system to award fees not only to a losing party, but to a losing party who filed out of time seems, the government argues, something so strange we would expect Congress to spell it out in no uncertain terms.

The arguments on Dr. Cloer’s side of the case are similarly predictable in their emphasis on the benevolent impulse on which the Vaccine Act is based. The core statutory argument, however, is quite simple and powerful.  The section on fee awards, all agree, requires only the filing of a “petition.”  It says nothing about whether the petition need be “timely.”  So, Dr. Cloer argues, the government, in effect, is asking the Court to fabricate an exception to the fee award provision that Congress did not include.

The most powerful part of Dr. Cloer’s argument is its emphasis on the natural meaning of the references in the statute to the “filing” of a “petition.”  In ordinary parlance, a petition is “filed” when it is presented with a proper fee, in the proper form, to the appropriate officer at the appropriate court.  The way we can tell a petition has been filed is that a court or agency accepts it and opens a case for processing.  There is no doubt that this occurred here.

The most telling part of Dr. Cloer’s argument is the discussion of a variety of sections that would be rendered largely absurd by the government’s view that “petition” means “timely petition.”  One particularly devastating example is Section 12(a)(2), which requires the Secretary to publish notice of each “petition” in the Federal Register within thirty days of its filing.  As Dr. Cloer notes, nobody can take seriously the idea that the Secretary should (or could, or commonly does) assess the timeliness of petitions accepted for filing before publishing such notice.  The only plausible conclusion is that the Secretary (like the filing officers in HHS who process petitions) understands the word “petition” to refer to any document accepted for processing, whether or not timely.

The briefing also includes a fascinating side current, in which the two sides present starkly inconsistent visions of the milieu of the Vaccine Act.  The government presents a simple straightforward statute, with an iron-clad statute of limitations and a provision for fee awards only for timely cases, all to be applied in a straightforward routinized way.  Dr. Cloer, on the other hand, presents a complex and murky world, populated by long lines of troubled and disparate precedents at the Court of Federal Claims and the Federal Circuit, mulling complex problems of equitable tolling, questions about the timing of discovery of symptoms, and the good faith with which claimants file.  Without detailed discussion, the government suggests to the Court that it has left this program in the hands of the Federal Circuit for far too long without critical supervision; the time has come for the Court to reinforce the simple clarity of the program Congress designed.  Against the backdrop of the nation’s budget crisis, the undertone criticizing the fiscal laxity of the Federal Circuit is compellingly drawn.

Still, in an ordinary case none of this would matter.  The devastating inconsistencies Dr. Cloer documents in the government’s reading of the statute usually would result in an easy victory for the claimant.  But I wouldn’t be so quick to expect that outcome.  The Court has already sternly rebuked the Federal Circuit once this Term for its laxity on that point.   (See my post recapping the opinion in United States v. Bormes.)  In truth, Dr. Cloer has little to say about that presumption, except to suggest it shouldn’t be taken so rigorously as the government suggests.  If the argument here is anything like Bormes, we’ll know much more about the Court’s sympathies by noon on Tuesday.

One last note for observers: Given the close logical ties between this case and Mutual Pharmaceutical Co. (which follows it Tuesday morning) it will be interesting to see how (or whether) the advocates or the Justices can bring points from the cases to bear on each other.  It should be a fascinating morning on First Street N.E.

Posted in Sebelius v. Cloer, Featured, Merits Cases

Recommended Citation: Ronald Mann, Argument preview: Justices to mull attorney’s fees for untimely vaccine claims, SCOTUSblog (Mar. 14, 2013, 12:31 PM), http://www.scotusblog.com/2013/03/argument-preview-justices-to-mull-attorneys-fees-for-untimely-vaccine-claims/