May 20, 2013

Supreme Court Decides Sebelius v. Cloer

On May 20, 2013, the U.S. Supreme Court decided Sebelius v. Cloer (No. 12-236), holding that an untimely petition under the National Childhood Vaccine Injury Act of 1996 (the "Act") qualifies for an award of attorney's fees if it is filed in good faith and there is a reasonable basis for the claim.

In 1997, after receiving the third in a series of hepatitis B immunizations, the petitioner began to experience numbness in her left arm and hand. She sought medical care, but her diagnosis was inconclusive. She continued to experience symptoms and was eventually diagnosed with multiple sclerosis (MS) in 2003. The petitioner became aware of a link between MS and the vaccine and filed a claim for compensation under the Act in 2005.

The clerk of the Court of Federal Claims sent the petition to the Chief Special Master, who determined that the petition was untimely because the Act's 36-month limitation period began when she first experienced MS symptoms in 1997. Following an unsuccessful appeal regarding the limitation period, the petitioner moved for an award of attorney's fees. A divided en banc Federal Circuit agreed that a person who files an untimely petition under the Act may recover costs and fees as long as the petition was brought in good faith and there was a reasonable basis for the claim. The U.S. Supreme Court granted certiorari to resolve the question.

The Act does not permit attorneys to charge fees for services in connection with filing a petition under the Act. But the Act provides that a court may award attorney's fees and costs incurred by a claimant in any proceeding on an unsuccessful vaccine injury if the good faith and reasonable basis criteria are met. The Act's limitation period is 36 months after the claimant's initial symptoms occur.

The U.S. Supreme Court construed the attorney's fee provision to include any petition "filed" under the applicable section and found nothing in the text to suggest that subsequent dismissal of a petition nullifies its initial "filing." Congress explicitly allowed attorney's fees to be granted for unsuccessful appeals and did not limit the awards to timely filed petitions. On the other hand, Congress did require timely assertion of a petition in other contexts in the Act, which further suggests that Congress did not require timely assertion of a petition under the fee award section. Therefore, the Court concluded that attorney's fees may be awarded to unsuccessful claimants whose petitions were brought in good faith and where there was a reasonable basis for the claim.

Justice Sotomayor delivered the opinion of the Court, in which Chief Justice Roberts and Justices Kennedy, Ginsburg, Breyer, Alito, and Kagan joined. Justices Scalia and Thomas joined in part.

Download Opinion of the Court

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