Joseph Osler Brice and Laurajean Councill Brice, on Behalf of Their Son, Joseph Tilghman Brice v. Secretary of Health and Human Services , 240 F.3d 1367 ( 2001 )

PAULINE NEWMAN, Circuit Judge,

dissenting.

The panel majority today holds that the National Childhood Vaccine Injury Act never permits equitable tolling of the period for filing a claim, whether the claim arose before the statutory enactment or afterward, no matter how worthy the petitioner or how compelling the petition. That is neither a necessary interpretation of the Vaccine Act, nor a tolerable one.

Tolling of a period of limitations awards no undeserved benefit; it simply opens the door to a petitioner upon whom the door should not be shut. It is a rare event, for most petitions are timely and courts are not sympathetic to delay. But courts are not precluded from evaluating the reason for the delay or from providing equitable relief when justice demands. As the Court stated in American Pipe & Construction Co. v. Utah, 414 U.S. 538, 559, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), “the mere fact that a federal statute providing for substantive liability also sets a time limitation upon the institution of suit does not restrict the power of the federal courts to hold that the statute of limitations is tolled under certain circumstances not inconsistent with the legislative purpose.” Why then would this court bar itself from the power and authority to do so?

The judicial prerogative, indeed our obligation, is to provide access to equitable tolling when the circumstances warrant. From my colleagues’ ruling that this choice is not available in Vaccine Act cases, I must, respectfully, dissent.

I

The panel majority, barring equitable tolling on any and all grounds, states that Congress intended to foreclose equitable tolling in Vaccine Act cases. However, the statute does not so provide, and the legislative record reflects no such intent. The Vaccine Act contains no basis for the majority’s hypothesis that Congress imposed an absolute and irremediable bar to any petition filed beyond the three-year statutory limitations period. Indeed, the Vaccine Act itself extends the period of limitations for cases erroneously filed in the district court instead of under the Vaccine Act; this congressional action to relieve a specific foreseeable problem does not establish congressional intent to prohibit relief for every other tardy fifing. The absence from the Vaccine Act of explicit authorization for equitable tolling is not unusual, and does not defeat the courts’ equitable power. See American Pipe, 414 U.S. at 558, 94 S.Ct. 756 (recognizing judicial power to toll periods of limitation).

In justifying its decision to bar the possibility of equitable tolling, the panel majority complains that the Supreme Court has “creat[ed] uncertainty exactly as to when equitable tolling is permissible,” citing United States v. Brockamp, 519 U.S. 347, 117 S.Ct. 849, 136 L.Ed.2d 818 (1997), as conflicting with Irwin v. Department of Veterans Affairs, 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990). In Irwin the Court confirmed that equitable tolling is as available in suits against the government as it is between private parties, observing that a rebuttable presumption of the availability of equitable tolling exists in suits against the government when Congress has not otherwise provided. 498 U.S. at 95, 111 S.Ct. 453. Brockamp, in turn, was a tax case wherein the Court carefully explained the specificity of its ruling that tax refund applications must meet the statutory filing deadline or be forfeited. These rulings illustrate the judicial obligation, as the Court explained in Burnett v. New York Central Railroad Co., 380 U.S. 424, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1965), to examine “whether congressional purpose is effectuated by tolling the statute of limitations in given circumstances.” Id. at 427, 85 S.Ct. 1050.

As elaborated in Irwin, the time limit in an ordinary statute of limitations is generally assumed to be subject to equitable tolling. 498 U.S. at 95-96, 111 S.Ct. 453. In Brockamp the Court took pains to explain why that tax refund provision was an exception to the general rule, the Court citing the “unusually emphatic form” of the statutory period. The Court referred to the ninety million tax refunds a year and the explicit detail and interaction of “limitations in both procedural and substantive forms,” 519 U.S. at 350, 117 S.Ct. 849, as showing congressional intent to impose a strict filing deadline in tax refund cases. The Court observed that “[t]ax law, after all, is not normally characterized by case-specific exceptions reflecting individualized equities.” 519 U.S. at 352, 117 S.Ct. 849.

In contrast, in Burnett the Court was concerned with a “humane and remedial Act,” the Federal Employers Liability Act, wherein the Court concluded that equitable tolling is available to a worker injured in the course of his employment. 380 U.S. at 427, 85 S.Ct. 1050. Similarly, the Vaccine Act is a case-specific system of individualized equities, meeting the criteria discussed in Brockamp as subject to equitable tolling. At oral argument the government agreed that the Brockamp factors differ from those of the Vaccine Act: unlike Brockamp the Act is not particularly emphatic about limitations; unlike Brock-amp the Act does not state the filing deadline in a highly detailed technical manner; unlike Brockamp the Act does not reiterate the limitations period several times; and unlike Brockamp there would not be serious administrative problems in dealing with requests for tolling. Instead the government argued simply that since the Vaccine Act requires filing a claim with HHS as a prerequisite to civil litigation, there is a statutory emphasis on speed and diligence. The panel majority’s reliance on Brockamp as totally barring equitable tolling is unsupported, is contrary to Irwin, and is contrary to the Court’s overall treatment of the issue of limitations. Indeed in another recent case on equitable tolling, United States v. Beggerly, 524 U.S. 38, 48-49, 118 S.Ct. 1862, 141 L.Ed.2d 32 (1998), the Court referred to the “generous” twelve-year period of limitations in the statute there at issue, including that it ran from when the complainant “knew or should have known” of the existence of the cause of action. In the Brices’ case, it is undisputed that the infant was not diagnosed with vaccine injury until only a few months before the end of the statutory period.

Equitable tolling does not decide the substantive merits of the claim. Nor does the availability of tolling ensure that it will be granted in a particular case. When granted, it simply permits the claimant to present the claim. Statutes of limitations are designed to provide fairness to defendants who might otherwise be presented with stale claims after evidence is lost and memories faded. See Burnett, 380 U.S. at 428, 85 S.Ct. 1050. The government has not alleged any such problem with permitting the Brices’ claim to go forward. Indeed, the Burnett Court remarked that the interest of justice may outweigh the purpose of protecting defendants from tardy claims. Id.

Extensive precedent illustrates the application of these principles. See, e.g., Iavorski v. Immigration & Naturalization Service, 282 F.3d 124, 129 (2d Cir.2000) (nothing in the text, structure, legislative history, or purpose of the deportation statute leads to the conclusion that Congress intended to bar access to tolling); Wolin v. Smith Barney, Inc., 83 F.3d 847, 852 (7th Cir.1996) (equitable tolling is appropriate when delay prohibits the plaintiff from obtaining information essential to bringing suit); Equal Employment Opportunity Comm’n v. Kentucky State Police Dep’t, 80 F.3d 1086, 1095-96 (6th Cir.1996) (tolling available to petitioners who did not know of retirement rights); Valenzuela v. Kraft, Inc., 801 F.2d 1170, 1175 (9th Cir.1986) (purpose of the statute, notice to the defendant, and the plaintiffs diligence determine the availability of equitable tolling). With the Court’s reaffirmation in Irwin, Brockamp, and Beggerly that equitable tolling remains available in claims against the government unless inconsistent with the purpose of the statute, there is no weight of support for the majority’s ruling that equitable tolling is never available in Vaccine Act cases.

The majority offers the theory that a total bar to tolling in the Vaccine Act achieves the Act’s purpose of quickly resolving claims and avoiding “prolonged and wasteful collateral litigation.” To the contrary — a total bar defeats the Act’s purpose to provide a non-adversarial and equitable governmental response to vaccine-related injury. Barring the possibility of tolling simply bars the possibility of relief to an injured infant, thus defeating the foundation of the Vaccine Act.

The ruling that equitable tolling can never be invoked in Vaccine Act cases is directly contrary to the holding in Irwin that equitable tolling is as available against the government as it would be in private litigation of the cause. The just solution to the rare situation¹ of delay beyond the statutory period of the Vaccine Act is not to deny all remedy in all situations; the solution is to view each such situation with the sympathy, wisdom, and rigor appropriate to the particular case. I therefore must dissent from the majority’s complete bar to access to equitable tolling in Vaccine ^ct cases.

II

The Court of Federal Claims did not preclude tolling, as does the panel majority, but held that the Brices did not exercise adequate diligence to warrant tolling of the three-year limitations period. However, the Brices presented a far stronger case of diligence than is acknowledged in the majority opinion. The record includes the following:

On May 9, 1992, nine days after infant Tilghman received a mumps-measles-rubella (MMR) vaccination on April 30, 1992, Mrs. Brice took Tilghman to the hospital, where he was diagnosed as in epileptic seizure. Mrs. Brice told the doctors that she believed he was suffering from a reaction to the vaccine. She testified that she was told that “she was using poor medical judgment and that she was only making a wild guess as to the cause of the seizure.” On dismissal from the hospital she was told that he appeared to be normal.

Tilghman continued to experience seizures, and the Brices noticed that he slept for long periods. Their pediatrician, Dr. Rawitt, told the Brices that it was “normal because Tilghman was growing.” In October 1994 the Brices observed that Tilgh-man made “funny mouth movements” after which he would sleep or rest for prolonged periods of time. The condition remained undiagnosed and the Brices took him to a pediatric neurologist, Dr. Blum, whose diagnosis was pediatric migraines after an encephalopathy caused by the MMR vaccine. Dr. Blum referred the Brices to another specialist, Dr. Vining, a renowned pediatric neurologist at Johns Hopkins. On March 30, 1995 Dr. Vining diagnosed Tilghman as suffering from residual seizure disorder with brain damage, resulting from the MMR vaccine. This was three years minus five weeks after the first seizure was observed on May 9,1992.

Dr. Vining told the Brices about the Vaccine Act program of the Department of Health and Human Services. The Brices promptly contacted HHS. The Brices state that they spoke with several staff people and left five different messages on the automated messaging system. They state that they received no response to then-inquiries for five weeks, that HHS personnel had little or no knowledge of the vaccine program or how to file a claim, and that they were given confusing and sometimes contradictory information with respect to the requirements for filing. In mid-June 1995 the Brices received information including the HHS Guidelines for filing a petition for compensation. The Guidelines state that complete medical records must be provided with the filing:

The petition must be accompanied by all medical related records potentially relevant to the issue of whether petitioner is entitled to an award. [Emphases in Guidelines.]

The Guidelines further stress the importance of providing complete medical documentation when the petition is filed:

(4) Petitions not accompanied by all the documents required by statute and the Vaccine Rules, or an affidavit explaining why any missing required documents are unavailable, will not be filed by the clerk.

On June 19, 1995, promptly following receipt of the Guidelines from HHS, Mrs. Brice requested copies of Tilghman’s medical records from all of his treating physicians. The Brices reported the length of time it took to obtain the records. They averred:

We could not obtain the needed medical records any faster. One set of records had been taken off site, microfilmed, shipped to Texas and misfiled in a warehouse. The pediatrician that Tilghman saw subsequent to his May 9, 1992 hospitalization refused to give us our child’s records. We tried to think of a way to circumvent the problem by having a friend, who is a physician, request Tilghman’s records. This was the record submitted in the petition. It was not the treating doctor’s records but a compilation of every other doctor’s records who had treated our son. (Note, to date this record still has not been obtained even after being requested by Robert T. Murphy, U.S. Department of Justice). We truly anguished over the lack of this record.

The Brices also started immediately to comply with the Guidelines’ suggestion that they needed an attorney. Indeed, the Guideline says that the petition must be signed by an attorney who is a member of the bar of the Court of Federal Claims. The Brices’ search for counsel qualified to handle their case included contacting a-family member who was an attorney and seeking assistance from the president of the Maryland State Bar Association and the past president of the Maryland Bar. One of the five attorneys with whom the Brices consulted informed the Brices that the statute of limitations had ran and that she could not “in good conscience” file a claim on their behalf. The four other lawyers recommended filing a civil suit, but would not or could not help with a Vaccine Act petition, some mentioning the limitations problem. While attempting to retain counsel, the Brices continued to compile Tilghman’s medical records, encountering delays and non-cooperation as they reported. The Brices eventually filed a Vaccine Act claim, pro se, on December 19, 1995. This was almost nine months after Dr. Vining’s confirmation of Dr. Blum’s diagnosis and notification of the HITS program, and seven months after the limitations period had ran.

The Special Master held that “there is no diligence in this case, much less due diligence.” The Court of Federal Claims affirmed. Although my colleagues on this panel endorse this ruling, it can not be reconciled with the evidence and the principles of equity. The parents were resourceful and persistent, coping with an ill and retarded infant while finding their way through the arcana of a complex statute. They were unable to obtain legal help, and encountered non-cooperation or delay by some of the treating physicians and hospitals. The HHS instruction, that medical records must be complete or their absence supported by affidavit, was unequivocal. Although the panel majority rules that the Brices should have ignored these instructions and filed sooner with incomplete records, the question is whether the Brices acted with reasonable prudence and diligence in light of the circumstances.

The Vaccine Act measures the limitations period from “the date of the first symptom or manifestation of onset or of the significant aggravation of such [vaccine-related] injury.” 42 U.S.C. § 300aa-16(a)(2). For the infant Tilghman his vaccine-related injury was not diagnosed or accepted by the physicians who initially treated him, although his mother offered them the theory that there was a vaccine relationship. Almost three years elapsed before his injury was diagnosed and its cause established. Although it is conceded that the first seizure occurred a few days after administration of the MMR vaccine, thus starting the running of the period of limitations, late diagnosis of causation is relevant to equitable tolling. The misdiagnosis and absence of critical information that left the Brices uninformed until almost the end of the statutory period are factors to be considered. The record shows that the Brices acted reasonably when their son was eventually diagnosed and they were told of the Vaccine Act. When viewed objectively and with humanity, and taking note of the generosity of administration required in the Vaccine Act itself, equitable tolling is surely warranted in this case.

1 . The panel majority cites a total of thirty Vaccine Act cases discussing equitable tolling since the inception of the Vaccine Act in 1986. Government counsel said there were "a few” cases a year. The majority apparently views this as an unreasonable burden. It would appear, however, that thirty requests for tolling since 1986 places the burden of injustice not upon the administrator of the Act but on the injured infants who will now be barred from raising the equitable issue.