The U.S. Supreme Court has agreed to decide whether a party whose petition under the National Vaccine Injury Compensation Program was dismissed as untimely may recover an award of attorney fees and costs from the government.

In the underlying case, the plaintiff claimed she developed multiple sclerosis after receiving a series of Hepatitis-B vaccinations.  In 2005 she filed a claim under the Act, but the claim was dismissed because it was filed more than 36 months after the first symptoms of MS occurred in 1997.  She appealed to the Federal Circuit, which reversed the district court and ruled that her claim was not time barred because at the time her symptoms began the medical community at large did not recognize the link between vaccines and her injury.

On en banc review, the court held that the Act’s statute of limitation is not jurisdictional and that some claims brought under the Vaccine Act are subject to equitable tolling.  However it concluded that the plaintiff’s claim did not meet the equitable tolling criteria and reversed again, dismissing her petition as untimely.

The plaintiff then sought an award of attorney fees and costs, arguing that although she did not untimely prevail on the merits of her claim her appeal led to a precedential ruling that potentially opens the door for others who would have been precluded from seeking redress under the Act.

The Federal Circuit agreed, holding that “a petitioner who asserts an unsuccessful but non-frivolous limitations argument should be eligible for a determination of whether reasonable attorneys’ fees and costs incurred in proceedings related to the petition should be awarded,” and remanded the case.  The Supreme Court granted the government’s petition for certiorari and will hear the case later this term.

Sebelius v. Cloer, No. 12-236.  Certiorari granted: November 20, 2012. Ruling below: 675 F.3d 1358 (Fed. Cir. 2012).

NALFA also reported on attorney fees in vaccine cases in, “Federal Circuit Denies Laffey Matrix Rates in Vaccine Cases.”