Melissa Cloer, M.D. v. Sec. Of Health and Human Services ( 2012 )


Menu:
  •   United States Court of Appeals
    for the Federal Circuit
    __________________________
    MELISSA CLOER, M.D.,
    Petitioner-Appellant,
    v.
    SECRETARY OF HEALTH AND HUMAN
    SERVICES,
    Respondent-Appellee.
    __________________________
    2009-5052
    __________________________
    Appeal from the United States Court of Federal
    Claims in 05-VV-1002, Judge Lawrence J. Block.
    __________________________
    ON APPLICATION FOR ATTORNEYS’ FEES AND
    COSTS
    __________________________
    ROBERT T. MOXLEY, Robert T. Moxley, P.C., of Chey-
    enne, Wyoming, filed an application for attorneys’ fees
    and costs for petitioner-appellant. MARI C. BUSH, Kaye
    and Bush, LLC, of Denver, Colorado, filed a supplement
    to the application. Of counsel was Robert T. Fishman, of
    Denver, Colorado.
    ANISHA S. DASGUPTA, Attorney, Appellate Staff, Civil
    Division, United States Department of Justice, of Wash-
    ington, DC, filed an opposition for respondent-appellee.
    CLOER   v. HHS                                          2
    With her on the opposition were TONY WEST, Assistant
    Attorney General, and THOMAS M. BONDY, Attorney.
    __________________________
    BeforeRADER, 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.
    REYNA, Circuit Judge.
    ORDER
    Dr. Melissa Cloer sought compensation under the Na-
    tional Childhood Vaccine Injury Act of 1986, 42 U.S.C.
    §§ 300aa-1 to -34 (“Vaccine Act”), alleging that her Hepa-
    titis B vaccination caused her multiple sclerosis (“MS”).
    The Chief Special Master dismissed her petition as un-
    timely, 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 eligi-
    ble to receive an award of reasonable attorneys’ fees and
    costs in connection with her appeal. The Vaccine Act
    1     Judge Gajarsa assumed senior status on July 31,
    2011.
    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 reason-
    able 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 deter-
    mination of whether Dr. Cloer should be awarded reason-
    able 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 signifi-
    cantly 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 re-
    manded, 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 F. App’x 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 &
    CLOER   v. HHS                                           4
    Human Servs., 
    654 F.3d 1322
     (Fed. Cir. 2011) (en banc).
    In Cloer, we held that the Vaccine Act’s statute of limita-
    tions 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 consid-
    ered in determining whether a petitioner is eligible for
    attorneys’ fees. Section 300aa-15(e) provides:
    (1) In awarding compensation on a peti-
    tion filed under section 300aa-11 of this ti-
    tle 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 peti-
    tion. 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 reason-
    able attorneys’ fees and other costs in-
    curred 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 reason-
    able 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 limita-
    tions 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,
    CLOER   v. HHS                                             6
    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 Con-
    gress chose not to tie the right to attorneys’ fees to com-
    pliance 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 interpreta-
    tion. Section 300aa-12(b)(1) states that “[i]n all proceed-
    ings brought by the filing of a petition under section
    300aa-11(b),” the Secretary shall be named as a respon-
    2   This interpretation is also consistent with Vaccine
    Rule 2, which states that “[a] proceeding for compensation
    under the Vaccine Act is commenced by filing a petition”
    but does not explicitly require that the petition be filed in
    compliance with § 300aa-16.
    3   Section 300aa-11(a)(2)(A) provides: “No person
    may bring a civil action for damages . . . in a State or
    Federal court for damages arising from a vaccine-related
    injury or death . . . unless a petition has been filed, in
    accordance with section 300aa-16 of this title . . . .”
    dent 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, pub-
    lishing notice in the Federal Register, reporting to Con-
    gress, 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 claim-
    ants 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 decreases the effective value
    of awards. . . . Interim fees are particularly ap-
    propriate in cases where proceedings are pro-
    tracted and costly experts must be retained.
    CLOER   v. HHS                                              8
    
    Id.
     (emphasis added) (citation omitted); see also H.R. Rep.
    No. 99-908, at 22 (1986) (“the Committee does not intend .
    . . to limit petitioners’ ability to obtain qualified assis-
    tance and intends . . . that the court exercise its discretion
    to award fees [resulting from] non-prevailing, good faith
    claims.”).
    The overarching purpose of the Vaccine Act and the
    National Childhood Vaccine Injury Compensation Pro-
    gram it created is to award compensation “to vaccine-
    injured persons quickly, easily, and with certainty and
    generosity.” H.R. Rep. No. 99-908, at 3. Remedial legisla-
    tion like the Vaccine Act should be construed in a manner
    that effectuates its underlying spirit and purpose. See
    Atchison, Topeka, & Santa Fe Ry. Co. v. Buell, 
    480 U.S. 557
    , 561-62 (1987). Our interpretation of the statute
    fulfills congressional intent and the Act’s legislative
    purpose. Congress acknowledged that “[l]awsuits and
    settlement negotiations can take months and even years
    to complete. Transaction costs – including attorneys’ fees
    and court payments – are high. And in the end, no recov-
    ery may be available. Yet futures have been destroyed
    and mounting expenses must be met.” H.R. Rep. No. 99-
    908, at 6. Congress recognized that having to shoulder
    attorneys’ fees could deter victims of vaccine-related
    injuries from seeking redress.
    Congress did not intend for only prevailing petitioners
    to receive an award of reasonable attorneys’ fees and
    costs. To the contrary, compensation on a petition should
    include “an amount to provide for reasonable attorneys’
    fees and other costs incurred in proceedings on the peti-
    tion. But even where the court does not award compensa-
    tion on a petition, it may, in its discretion, make such an
    award for attorneys’ fees and costs if it determines that
    the action was brought in good faith and that there was a
    reasonable basis for the claim for which the action was
    brought.” Id. at 21 (emphasis added).
    The statutory language requiring a reasonable basis
    for the claim for which the petition was brought is broad
    enough to encompass the statute of limitations issue as
    well as the underlying merits of the claim. It is beyond
    dispute that Congress intended attorneys’ fees to be
    awarded only in cases brought in good faith and where
    there was a reasonable basis for the claim underlying the
    petition, even where the petitioner does not prevail. The
    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. Attorneys’
    fees should be denied if on remand, it is determined that
    the petition was not brought in good faith or there was no
    reasonable basis for the claim for which the petition was
    brought.
    Finally, Dr. Cloer deserves a determination as to
    whether she is eligible to receive attorneys’ fees because
    her appeal inspired a shift in vaccine jurisprudence.
    Indeed, the government does not dispute the reasonable-
    ness of Dr. Cloer’s underlying claim or allege that it was
    not brought in good faith, which is generally presumed.
    The confines of the Vaccine Act make clear that a peti-
    tioner need not prevail to receive attorneys’ fees.
    The dissent contends that Dr. Cloer is not entitled to
    attorneys’ fees as a matter of law and creates a rigid rule
    applicable to requests for attorneys’ fees in vaccine cases
    where the petitioner’s claim is rejected solely on limita-
    tions grounds. Cloer 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.
    Despite this, the dissent would treat Dr. Cloer’s petition
    under a pre-Cloer analysis by retroactively eliminating
    CLOER   v. HHS                                             10
    jurisdiction to award attorneys’ fees in connection with an
    unsuccessful statute of limitations argument.
    The dissent, primarily in footnote one, argues that
    § 12 vests the Court of Federal Claims and special mas-
    ters with jurisdiction to determine whether a petitioner is
    eligible to file a petition, even if the petition is later
    deemed untimely. See Dis. Op. at 2 n.1. This construction
    of “petition filed” for purposes of § 300aa-15(e) is inconsis-
    tent with the language of the Vaccine Act. Because
    § 300aa-16(a) states that “no petition may be filed” if it is
    untimely, the dissent creates a distinction between a
    “filing a petition” for purposes of § 300aa-11 and a “peti-
    tion filed” for purposes of § 300aa-15(e) and other statu-
    tory provisions. Under this reasoning, an untimely filed
    petition is a “petition” sufficient to commence proceedings
    but is not a “petition filed” for purposes of § 300aa-16 and
    § 300aa-12. Such a distinction between “petitions” and
    “petitions filed” leads to absurd results, namely that
    neither this court nor the Court of Federal Claims had
    jurisdiction over Dr. Cloer’s petition.
    The dissent also contends that Dr. Cloer is not enti-
    tled to attorneys’ fees because the Vaccine Act requires an
    evaluation of the reasonableness of the claim for which
    the petition was brought, which indicates that Congress
    did not contemplate awarding attorneys’ fees in a case
    that never reached a merits determination. See Dis. Op.
    at 4. However, as explained above, § 300aa-15(e) explicitly
    refers to fees “incurred in any proceeding on such peti-
    tion,” including non-frivolous petitions ultimately unsuc-
    cessful on limitations grounds. Holding that attorneys’
    fees are only available where a petition has been sub-
    jected to a final adjudication on the merits is also incon-
    sistent with the recognized practice of awarding interim
    attorneys’ fees, which by definition does not require a
    final adjudication on the merits.
    The dissent claims that “the legislative history of the
    Vaccine Act is silent as to the reason for the Act’s highly
    unusual attorney fee provision” and goes on to speculate
    on Congress’s motivation for departing from the typical
    American Rule of fee awards. See Dis. Op. at 5 (“It may
    well be that Congress concluded . . .”); id. (“Congress could
    well have concluded . . .”). Such speculation is unneces-
    sary, however, in light of the remedial nature of the
    Vaccine Act and Congress’s intent to facilitate awards to
    injured parties.
    The dissent advocates adoption of a strict rule that
    strips discretion from the court and in so doing disregards
    the Vaccine Act’s spirit and purpose. The dissent’s inter-
    pretation would discourage potential Vaccine Act peti-
    tioners from pursuing claims and ignores that potential
    petitioners will likely be reluctant to bring claims under
    the Vaccine Act for fear of significant financial risk even
    when strong arguments exist to challenge the applicabil-
    ity of the statute of limitations.
    III. CONCLUSION
    This Order recognizes that issues relating to the
    award of attorneys’ fees in connection with challenges
    brought on limitations grounds will frequently arise in
    vaccine injury cases. Under Cloer, the Vaccine Act does
    not incorporate a discovery rule, and the statute of limita-
    tions begins to run on “the calendar date of the occurrence
    of the first medically recognized symptom or manifesta-
    tion of onset of the [claimed] injury,” subject to the doc-
    trine of equitable tolling. Cloer, 
    654 F.3d at 1325, 1340, 1344-45
    . If a discovery rule were adopted, as Dr. Cloer
    now urges in the Supreme Court, the limitations inquiry
    in vaccine injury cases would then become when the
    claimant first discovered or should have discovered the
    potential cause of the disease or injury, rather than when
    CLOER   v. HHS                                           12
    the claimant first experienced symptoms. 4 Under either
    view, a petitioner may become embroiled in litigation
    regarding the statute of limitations, and today’s order will
    enable reasonable claims for attorneys’ fees arising from
    that litigation.
    A petitioner who asserts an unsuccessful but non-
    frivolous limitations claim should be eligible for a deter-
    mination of whether reasonable attorneys’ fees and costs
    incurred in proceedings related to his or her petition
    should be awarded. Therefore, we remand for a determi-
    nation as to whether Dr. Cloer’s petition was brought in
    good faith and whether the claim for which her petition
    was brought had a reasonable basis.
    Accordingly,
    IT IS ORDERED THAT:
    Dr. Cloer’s application for reasonable attorneys’ fees
    and costs be remanded to the Court of Federal Claims.
    The Court of Federal Claims is directed to make a deter-
    mination consistent with this Order.
    FOR THE COURT
    April 11, 2012                /s/ Jan Horbaly
    Date                      Jan Horbaly
    Clerk
    4   Dr. Cloer filed a petition for certiorari in the
    United States Supreme Court on December 29, 2011.
    United States Court of Appeals
    for the Federal Circuit
    __________________________
    MELISSA CLOER, M.D.,
    Petitioner-Appellant,
    v.
    SECRETARY OF HEALTH AND HUMAN
    SERVICES,
    Respondent-Appellee.
    __________________________
    2009-5052
    __________________________
    Appeal from the United States Court of Federal
    Claims in 05-VV-1002, Judge Lawrence J. Block.
    __________________________
    BRYSON, Circuit Judge, with whom RADER, Chief
    Judge, and LOURIE, CLEVENGER, GAJARSA, and PROST,
    Circuit Judges, join, dissenting.
    The question whether a party who has filed an un-
    timely Vaccine Act petition is entitled to an award of
    attorneys’ fees under section 15(e)(1) of the Act, 42 U.S.C.
    § 300aa-15(e)(1), presents a difficult statutory construc-
    tion issue. While there is no clear path to the answer in
    the plain language or legislative history of the Vaccine
    Act, I believe that close attention to the text that Con-
    gress chose and consideration of the role of the fee-
    shifting provision both in the Vaccine Act and in the
    CLOER   v. HHS                                            2
    broader context of federal fee-shifting statutes require
    that we deny the fee request in this case.
    1. In Brice v. Secretary of Health & Human Services,
    
    358 F.3d 865
    , 869 (Fed. Cir. 2004), this court held that the
    attorneys’ fees provision of the Vaccine Act makes fees
    available only “in connection with a petition filed under
    section 300aa-11,” and that a petition dismissed on
    grounds of untimeliness is not “a petition filed under
    section 300aa-11,” as required by section 15(e). Similarly,
    in Martin v. Secretary of Health & Human Services, 
    62 F.3d 1403
    , 1406 (Fed. Cir. 1995), the court explained that
    in order for an attorneys’ fee award to be permitted under
    section 15(e)(1), “there must first be a judgment ‘on such a
    petition’—that is, ‘on a petition filed under section 300aa-
    11.’” While this court’s en banc decision in Cloer v. Secre-
    tary of Health & Human Services, 
    654 F.3d 1322
     (Fed.
    Cir. 2011), overruled Brice and Martin insofar as they
    were based on lack of subject matter jurisdiction, see 
    654 F.3d at
    1341 & n.9, the en banc court did not disavow the
    analysis of the statutory structure in those cases, and
    that analysis is still sound. In substance, as modified by
    the en banc decision in Cloer, Brice and Martin stand for
    the following principles: (1) section 16(a) of the Vaccine
    Act directs that “no petition may be filed for compensation
    under the Program”—and thus under section 11—after
    the expiration of the applicable time period, 42 U.S.C.
    § 300aa-16(a); (2) section 15(e)(1) allows an attorneys’ fee
    award only when a petition is filed under section 11, id.
    § 300aa-15(e)(1); and therefore (3) an attorneys’ fee award
    may be made only if the claimant files a timely petition,
    either by satisfying the applicable limitations period of
    section 16 or successfully invoking equitable tolling. 1
    1   This interpretation of the statute does not, as the
    majority opinion suggests, create a jurisdictional impasse.
    3                                                CLOER   v. HHS
    Besides the reference to a petition filed under section
    11, section 15(e)(1) provides for an award of attorneys’
    fees to an unsuccessful petitioner “if the judgment . . . on
    such a petition does not award compensation.” Although
    that language, standing alone, could be understood to
    refer either to a judgment on the merits or to a dismissal
    for untimeliness, the statutory context indicates that it
    does not refer to a judgment dismissing the petition for
    untimeliness. The same language is used in section 21 of
    the statute, where it clearly refers only to a judgment on
    the merits. That section provides that if “the judgment
    did not award compensation,” the petitioner is required to
    file “an election in writing to accept the judgment or to file
    a civil action for damages for such injury or death.” 42
    U.S.C. § 300aa-21(a)(2). Because the timely filing of a
    Vaccine Act petition is a prerequisite to filing a civil tort
    suit, see id. § 300aa-11(a)(2)(A), a claimant who has filed
    an untimely petition is not eligible to file a civil action for
    damages. The requirement in section 21 that a petitioner
    elect whether to file a civil tort suit when “the judgment
    did not award compensation” therefore does not refer to a
    claimant whose petition has been denied as untimely. In
    light of the meaning given to that phrase in section 21, it
    is fair to infer that the parallel reference in section
    15(e)(1) to a “judgment [that] does not award compensa-
    Section 12 of the Act gives the Court of Federal Claims
    and the special masters jurisdiction “over proceedings to
    determine if a petitioner under section 300aa-11 of this
    title is entitled to compensation.” 42 U.S.C. § 300aa-
    12(a). That reference gives the Court of Federal Claims
    and the special masters jurisdiction to determine whether
    or not the petitioner is eligible under section 16 to file a
    petition for compensation, even if the petitioner is ulti-
    mately determined not to be eligible to file a petition. See
    Martin, 
    62 F.3d at 1406
    .
    CLOER   v. HHS                                            4
    tion” likewise denotes a judgment on the merits, not a
    dismissal. 2
    Finally, section 16(c) of the Act reinforces the view
    that the phrase “a petition filed under section 300aa-11”
    in section 15(e) refers to a timely petition. Section 16(c)
    provides that if a petition is filed under section 11, state
    statutes of limitations shall be stayed for any civil action
    brought for the vaccine-related injury, beginning on the
    date the petition is filed and ending on the date that an
    election is made under section 21 to file the civil action.
    42 U.S.C. § 300aa-16(c). Because, as noted, such a civil
    action cannot be filed if the petition was untimely, the
    reference to “a petition filed under section 300aa-11” in
    section 16(c) can only mean a petition filed, as section 11
    requires, in accordance with section 16, i.e., within the
    statutory time limits. The same language—“a petition
    filed under section 300aa-11”—is used as a prerequisite
    for the payment of attorneys’ fees and costs in section
    15(e), which is a further textual indication that attorneys’
    fees and costs are not intended to be paid in cases in
    which the petition was untimely.
    2    The majority finds support for its decision in Av-
    era v. Secretary of Health & Human Services, 
    515 F.3d 1343
     (Fed. Cir. 2008), which held that the Vaccine Act
    permits an award of interim fees to petitioners who are
    seeking compensation. Avera, however, concerned an
    interim award for a petitioner who had filed a timely
    petition and therefore was in position to obtain a judg-
    ment on the merits, either awarding or denying compen-
    sation. Nothing in Avera suggests that a fee award,
    whether interim or otherwise, is appropriate for a claim-
    ant who has not filed a timely petition. And nothing in
    this opinion would prohibit granting interim fees to a
    petitioner who has filed a timely petition and is seeking a
    compensation award.
    5                                            CLOER   v. HHS
    2. Although the legislative history of the Vaccine Act
    is silent as to the reason for the Act’s highly unusual
    attorney fee provision, the requirement that there be a
    timely filed petition and a judgment on the merits of the
    compensation request, as opposed to a dismissal of the
    petition for untimeliness, makes sense in light of the
    development and purposes of the Act.
    The Vaccine Act evolved from a series of bills that
    were introduced over a three-year period. All of the bills
    that featured compensation proceedings contained attor-
    ney fee provisions, and all of them, until the very end of
    the legislative process, required the claimant to be a
    prevailing party in order to be eligible for a fee award.
    See S. 2117 (Nov. 17, 1983); H.R. 5810 (June 7, 1984);
    H.R. 1780 (Mar. 27, 1985); S. 827 (Apr. 2, 1985). Several
    of the early proposals would have allowed claimants to
    elect to proceed either through the compensation program
    or by way of a civil tort remedy. The bill that was ulti-
    mately enacted, however, required that claimants exhaust
    their remedies through the Vaccine Act compensation
    program before filing a tort action. H.R. 5546 (Sept. 18,
    1986) (incorporated into S. 1744, which became P.L. 99-
    660, Title III of which is the Vaccine Act). The proposed
    exhaustion requirement was controversial and sparked
    strong opposition from those who did not wish to see any
    impediments placed in the way of plaintiffs’ ability to
    pursue traditional civil tort remedies. See Vaccine Injury
    Compensation: Hearing on H.R. 1780, H.R. 4777, and
    H.R. 5184 Before the H. Subcomm. on Health and the
    Env’t of the H. Comm. on Energy and Commerce 187, 191,
    216 (1986) (statements of Jeffrey H. Schwartz, President,
    Dissatisfied Parents Together).
    It may well be that Congress concluded that because
    it was imposing an additional burden on claimants, it
    CLOER   v. HHS                                               6
    should make fee awards available to claimants who were
    required to go through the compensation program even
    though they were not eager to participate in the program
    and did not ultimately receive compensation. But since
    claimants who file untimely petitions do not enter the
    Vaccine Act compensation program and thus do not face
    the burden of litigating their entitlement to compensation
    on the merits, Congress could well have concluded that it
    did not make sense to provide attorneys’ fees to those
    parties in connection with their unsuccessful efforts to
    avoid the limitations period and gain access to the pro-
    gram.
    3. In attempting to discern Congress’s purpose in
    drafting the attorney fee provision at issue in this case, it
    is important to keep in mind some general principles
    governing fee-shifting statutes. The background rule
    applied by American courts is the “American rule,” under
    which each party pays its own fees. See Alyeska Pipeline
    Serv. Co. v. Wilderness Soc’y, 
    421 U.S. 240
    , 245 (1975).
    Some statutes permit or direct a departure from that rule,
    allowing prevailing parties to obtain an award of attor-
    neys’ fees from the losing party under certain circum-
    stances. But it is almost unknown in American practice
    for a statute to provide that the prevailing party will pay
    the losing party’s attorneys’ fees. The Supreme Court put
    that point succinctly in Ruckelshaus v. Sierra Club, 
    463 U.S. 680
    , 683-84 (1983), where it noted (emphasis in
    original):
    Our basic point of reference is the “American
    Rule,” see Alyeska Pipeline Co. v. Wilderness Soci-
    ety, 
    421 U.S. 240
    , 247 (1975), under which even
    “the prevailing litigant is ordinarily not entitled to
    collect a reasonable attorneys’ fee from the loser.”
    It is clear that generations of American judges,
    7                                                CLOER   v. HHS
    lawyers, and legislators, with this rule as the
    point of departure would regard it as “quite inap-
    propriate” to award the “loser” an attorney’s fee
    from the “prevailing litigant.”
    The Supreme Court in Ruckelshaus was able to iden-
    tify only one federal statute that, as of that time, permit-
    ted fee awards to a party whose views were rejected.
    That statute applied not to litigation, but to the promul-
    gation of rules regarding the regulation of hazardous
    chemical substances. Ruckelshaus, 
    463 U.S. at
    685 n.7,
    citing 
    15 U.S.C. § 2605
    (c)(4)(A).
    The statute at issue in this case plainly allows losing
    parties to obtain a fee award from the prevailing party in
    some circumstances. But because Congress departed
    from the governing principles applied in virtually every
    other federal fee-shifting statute, we should be cautious in
    interpreting the statutory mandate to extend beyond
    those cases in which fee-shifting was clearly intended.
    See Robert C. Herd & Co. v. Krawill Mach. Corp., 
    359 U.S. 297
    , 304-05 (1959) (a rule of law “in derogation of the
    common law . . . must be strictly construed”); In re Cres-
    cent City Estates, 
    588 F.3d 822
    , 826 (4th Cir. 2009) (“Be-
    cause fee-shifting statutes are ‘in derogation of the
    common law,’ courts are obligated to construe them
    strictly.”).
    That is particularly true in light of the practical effect
    of requiring the government to pay attorneys’ fees to
    persons who both fail to file a timely petition and then fail
    in their effort to show that their untimeliness was ex-
    cused by equitable tolling—which is the only class of
    persons potentially affected by the resolution of the fee
    issue before us. Section 15(e)(1) of the Vaccine Act pro-
    vides that attorneys’ fees can be paid to a petitioner to
    CLOER   v. HHS                                           8
    whom the court does not award compensation “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.” 42 U.S.C.
    § 300aa-15(e)(1). As a preliminary matter, it would seem
    that if Congress had contemplated that claimants making
    untimely filings should be eligible for attorneys’ fees, it
    would have required both a reasonable basis for the
    underlying claim and a reasonable basis for the equitable
    tolling argument; it seems unlikely that Congress would
    want to compensate claimants who had a reasonable basis
    for the underlying claim but no reasonable basis to qualify
    for equitable tolling. More fundamentally, it seems quite
    implausible that in a case in which the claimant’s sub-
    mission 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 rea-
    sonable chance of success. Yet that is the effect of the
    court’s ruling today.
    In a case that has gone to judgment on the merits and
    the petitioner has lost, it is fairly easy for the special
    master and the court to determine whether the peti-
    tioner’s position on the merits was reasonable. In that
    setting, the special master and the court will have the
    entire record of the case before them to enable them to
    make that determination. It is an entirely different
    matter for the special master to have to conduct a sort of
    shadow trial to determine whether, if the claimant had
    made a timely filing, the petition would have had a rea-
    sonable chance of succeeding. Quite apart from the
    burden on the special masters and the court, the amount
    of attorney time (and thus the accumulating fees) that
    would be consumed by such a proceeding would likely
    exceed the fees expended on the typically much simpler
    9                                                CLOER   v. HHS
    question whether equitable tolling is available to the
    claimant. Again, it seems unlikely that Congress envi-
    sioned such a scheme, and in the absence of express
    congressional authorization, we should be cautious about
    engrafting one onto the statute. Caution is especially
    warranted in a case authorizing a monetary award
    against the government in light of well-settled principles
    of sovereign immunity. The Supreme Court has held that
    “[e]xcept to the extent it has waived its immunity, the
    Government is immune from claims for attorney's fees.”
    Ruckelshaus, 
    463 U.S. at 685-86
    . And the Court has
    recently reaffirmed that “a waiver of sovereign immunity
    must be ‘unequivocally expressed’ in statutory text”; that
    “[a]ny ambiguities in the statutory language are to be
    construed in favor of immunity”; and that “[a]mbiguity
    exists if there is a plausible interpretation of the statute
    that would not authorize money damages against the
    government.” FAA v. Cooper, No. 10-1024 (U.S. Mar. 28,
    2012), slip op. 5.
    For these reasons, I respectfully dissent.