The National Childhood Vaccine Injury Act of 1986 established a no-fault
compensation system to stabilize the vaccine market and expedite compensation
to injured parties. Under the Act, a proceeding for compensation is “initiated”
by service upon the Secretary of Health and Human Services and “the filing of a
petition containing” specified documentation with the clerk of the Court of
Federal Claims, who forwards the petition for assignment to a special master.
42 U. S. C. 300aa–11(a)(1).
An attorney may not charge a fee for services in connection with such a
petition, but a court may award attorney’s fees and costs incurred by a
claimant in any proceeding on an unsuccessful petition, if that petition was
brought in good faith.
In a recent opinion of the United States Supreme Court in Sebelius v. Cloer, the Court held that An
untimely NCVIA petition may qualify for an award of attorney’s fees if it is
filed in good faith and there is a reasonable basis for its claim.
In 1997, shortly after receiving her third Hepatitis-B vaccine, Cloer began
to experience symptoms that led to a multiple sclerosis (MS) diagnosis in 2003.
In 2004, she learned of a link between MS and the Hepatitis-B vaccine, and in
2005, she filed a NCVIA claim. The special master concluded that Cloer’s claim
was untimely because the Act’s 36-month limitations period began to run when
she had her first MS symptoms in 1997.The Federal Circuit agreed. Cloer then
sought attorney’s fees and costs. The Federal Circuit ruled in Cloer’s favor.
The Supreme Court affirmed.
Nothing in the attorney’s fees provision suggests that the reason for the
subsequent dismissal of a petition, such as untimeliness, nullifies the initial
filing. An NCVIA petition delivered to the court clerk, forwarded for processing,
and adjudicated before a special master is a “petition filed under section
300aa–11.” The government’s contrary position is inconsistent with the fees
provision’s purpose, which was to avoid limiting petitioners’ ability to obtain
qualified assistance by making awards available for “non-prevailing, good-faith
claims.”
