High court considers Vaccine Act attorney fee

By Kimberly Atkins
The Daily Record Newswire
BOSTON — The justices of the U.S. Supreme Court scrutinized wording of the federal vaccine compensation statute Tuesday in an effort to determine whether claimants whose petitions are dismissed as untimely can still recover attorney fees.

The National Childhood Vaccine Injury Act established a no-fault process to quickly adjudicate claims of people injured by vaccines. The language of the law permits even unsuccessful claimants to seek attorney fees incurred in connection with a “petition filed.”

But the case of Sebelius v. Cloer turns a single question: Just what constitutes a petition filed? The claimant in the case, Melissa Cloer, argues that it means the filing of a petition at any time. But the government argues that it means the filing of a timely petition, and the lower court’s finding that Cloer’s petition was time-barred precludes an attorney fee award.

The U.S. Court of Appeals for the Federal Circuit ruled that attorney fees could be awarded to someone who submits a claim, even if time-barred, as long as the petition was made in good faith and had a reasonable basis. The government sought, and the Supreme Court granted, review.

At oral argument, Benjamin J. Horwich, assistant to the U.S. Solicitor General, focused on the language of the statute, which references the award being made at the time of a judgment. No judgment could come from Cloer’s case, he said.

“This petition was forbidden from being filed,” Horwich said.

Justice Antonin G. Scalia disagreed.

“Your argument that this fee provision looks to the end of the case simply doesn’t fly,” Scalia said. “It looks to the beginning as well, if indeed dismissal for failure to comply with the time limit is a judgment.”

Robert T. Fishman, of counsel in the Denver office of Ridley, McGreevy & Winocur, arguing on behalf of Cloer, said the statute was written to afford broad availability of attorney fee awards to those who believe they are filing a meritorious claim.

“The word ‘claim’ as it’s used in the statute encompasses the entire case, causation, evidence that you actually received a vaccine, the timeliness of your petition, [and] damages,” Fishman said, stressing the “enormous amount of medical documentation that is to be filed with the petition when it’s filed.”

But Justice Anthony M. Kennedy asked if allowing attorney fees in time-barred cases would go against the purpose of the statute.

“The very fact that it’s streamlined indicates to me that we should be very careful to enforce the policy of the rule, which is to deter the filing of stale claims,” Kennedy said.

A decision is expected later this term.