Melissa Cloer, M.D. v. Sec. Of Health and Human Services
2012 U.S. App. LEXIS 7291
| Fed. Cir. | 2012Background
- Dr. Cloer received Hepatitis B vaccination in 1996 and 1997 and later developed MS.
- She filed a Vaccine Act petition alleging the vaccination caused her MS.
- The Chief Special Master dismissed as untimely; the Court of Federal Claims affirmed.
- A panel previously held the petition was not time-barred, and the case went to en banc review.
- Cloer’s appeal prompted a question whether she is entitled to reasonable attorneys’ fees despite the untimely petition.
- The court remands to determine whether the petition was brought in good faith and had a reasonable basis for the claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an untimely Vaccine Act petition can support fees. | Cloer should recover fees for nonfrivolous limitations argument. | Fees should be denied because the petition was untimely. | Yes; remand to decide good faith and reasonable basis. |
| Whether §300aa-15(e)(1) contemplates fees absent a merits adjudication. | Statute permits interim fees for proceedings on the petition. | Fees should hinge on timely filing and merits adjudication. | Remand to assess good faith and reasonable basis remains appropriate. |
| Whether discovery-rule arguments affect fee eligibility. | Cloer seeks broader grounds including tolling/discovery. | No discovery rule should govern timeliness for fees. | Court recognizes Cloer’s approach but remands for good faith/ reasonable basis determination. |
Key Cases Cited
- Brice v. Secretary of Health & Human Services, 358 F.3d 865 (Fed.Cir.2004) (fees available only for timely petitions under 300aa-ll; untimeliness defeats fee entitlement)
- Martin v. Secretary of Health & Human Services, 62 F.3d 1403 (Fed.Cir.1995) (need a judgment on a petition filed under 300aa-ll for fees; timely filing required)
- Cloer v. Secretary of Health & Human Services, 654 F.3d 1322 (Fed.Cir.2011) (en banc held non-jurisdictional tolling; rejected Brice/Martin reasoning on fees)
- Avera v. Secretary of Health & Human Services, 515 F.3d 1343 (Fed.Cir.2008) (interim fees available for timely petitions seeking compensation)
- Ruckelshaus v. Sierra Club, 463 U.S. 680 (U.S. 1983) (American Rule governs fees; limited statutory fee-shifting exceptions)