Vaccine Claims: Equitable Tolling May Sometimes Now Apply

Last month, we discussed the fact that the limitations period for the filing of claims under the “Vaccine Act” has kept many from recovering for vaccine-related injuries. We went on to discuss one case wherein the claimant tried to stretch the boundaries, saying her case should not be time-barred. In Cloer v. Secretary of Health and Human Services, 2011 U.S. App. LEXIS 16449 (Fed. Cir. 9/5/11), the U.S. Court of Appeals for the Federal Circuit reversed a Federal Circuit panel decision and found against a woman who had won the right to pursue her claim. That case, while foreclosing the claimant's right to seek redress, also contained the reversal of a precedent set 10 years earlier, in Brice v. Secretary of Health & Human Services, 240 F.3d 1367 (Fed. Cir. 2001). The discussion continues herein.

Cloer

The U.S. Court of Appeals for the Federal Circuit concluded in the first part of its opinion in Cloer that Congress did not write an explicit discovery rule into the statute. The question next became whether Congress had conveyed its refusal to permit an implied discovery rule that would equitably toll the statute of limitations until discovery of an injury.

Throughout the case, and despite the binding precedent in Brice foreclosing the possibility of equitable tolling in vaccine injury cases, the plaintiff, Dr. Cloer had requested that the court make it available and apply it to the facts of her case. The Chief Special Master and the Court of Federal Claims rejected that request, and the Court of Federal Claims panel did not address the issue. However, on rehearing, the en banc court determined it would reconsider Brice. Before the hearing, it addressed three questions to the parties: 1) Should the “discovery rule,” which is generally used in medical malpractice cases, apply to 42 U.S.C.
' 300aa-16(a)(2) so that the statute of limitations does not begin to run until
the claimant knows or should know the cause of her injury?; 2) Should Brice be overruled to permit equitable tolling of 42 U.S.C. ' 300aa-16(a)(2)?; and 3) If equitable tolling is permitted, is the Cloer case one to which it should apply?

Implied 'Discovery Rule' Rejected

To answer the first question, the court had to determine whether Congress, in the text of the Vaccine Act and considering its overall structure, had conveyed its refusal to permit an implied discovery rule. (It had already held that Congress did not write an explicit discovery rule into the statute.) The court concluded that it had, because Congress set the triggering event in the statute as the first onset of symptoms, not the discovery of a causal connection, even though it had considered such a triggering event before enacting the statute of limitations. In addition, said the court, “a significant motive for Congress in enacting the Vaccine Program was to provide an efficient, simple, and easy to administer system for processing vaccine injury claims. We think the triggering mechanism selected by Congress for the statute of limitations promotes those goals, whereas a discovery rule may not.”

Brice is Overruled

It is with the court's second question on equitable tolling ' whether Brice should be overruled to permit equitable tolling of 42 U.S.C. ' 300aa-16(a)(2) ' that a new precedent was set in Cloer.

The court first turned to the U.S. Supreme Court's observation in John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133 (2008), that “[m]ost statutes of limitations seek primarily to protect defendants against stale or unduly delayed claims.” These types of limitations statutes have no bearing on the jurisdiction of a court, so equitable tolling can be invoked to provide relief from time-of-filing limits. Conversely, other statutes' limitations periods were enacted in order to preclude courts from offering extensions; for example, some time limitations are in place to facilitate the administration of claims. Therefore, whether a particular statute of limitations is treated as “jurisdictional” depends on the overall context of the statute.

Three Supreme Court decisions helped inform the court in its effort to decipher whether the Vaccine Act's statute of limitations is jurisdictional or not. In the first, Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990), the Supreme Court stated that all federal statutes of limitations are to be presumed amenable to equitable tolling unless Congress provides to the contrary. Irwin left interpretation of whether such Congressional provision had been made in specific statutes to later cases.

Guidance concerning such interpretation came seven years later, when the Court decided United States v. Brockamp, 519 U.S. 347 (1997). Brockamp framed the rebuttal question as “whether there is good reason to believe that Congress did not want equitable tolling to apply.” The Court offered five factors to be used in determining whether Congress rebutted the basic Irwin presumption: 1) the statute's detail; 2) the statute's technical language; 3) the statute's multiple iteration of the limitations period; 4) the statute's explicit inclusion of exceptions; and 5) the statute's underlying subject matter.

The Federal Circuit used two of these five Brockamp factors in deciding, in Brice, that equitable tolling is not available in Vaccine Act claims. Those same factors ' that the statute contains multiple iterations of the limitations period and that the statute includes exceptions to the limitations period ' were also present in Cloer. Specifically, the government pointed to two specific exceptions in the Vaccine Act to the 36-month statute of limitations, and argued that the Vaccine Act's detail as a whole revealed multiple strict deadlines. The government's arguments might have carried the day, but for a third Supreme Court decision, rendered nine years after Brice.

Holland Changed the Game

“The correct analysis of the government's 'exceptions' points,” said the Cloer court, “is informed by the Supreme Court's recent decision in Holland v. Florida, 130 S. Ct. 2549 (2010), of which the Brice court did not have the benefit.”

The exceptions argument goes something like this: Because Congress wrote into the statute one or more exceptions to the strict requirements for a timely filing, Congress must have intended that those exceptions, and no others, would apply. However, the Holland decision opened up another possibility. In that case, the Supreme Court found that although a federal statute concerning the filing of federal habeas corpus petitions by state prisoners contained an exception to the general statute of limitations imposed by the statute, it was inserted to clarify a special source of confusion that might have arisen between state and federal law. As such, that exception to the statute of limitations did not necessarily indicate that Congress had intended, in passing the act in question, to rebut the fundamental Irwin presumption in favor of equitable tolling.

The government pointed to two exceptions to the filing time limits within the Vaccine Act. One, 42 U.S.C. ' 300aa-11(a)(2)(B), says that vaccine-injured parties must seek relief through the Vaccine Program, and that any state suits they file in the mistaken belief that they can seek redress there must be dismissed. It was foreseeable that claimants could therefore lose the right to seek relief because they thought they had properly filed in state court, when in fact that forum was not available to them. If their time for filing through the federal system ran out because they relied on their state court filing, an injustice would be done. Therefore, Congress saw fit to include a provision allowing petitioners to benefit from the earlier state filing date when faced with the Vaccine Act's statute of limitations, and also a provision that tolls state statutes of limitations during the pendency of Vaccine Program action. Looking at these provisions, the Cloer court concluded it was clear that “Congress had a specific concern, unrelated to equitable tolling considerations, in enacting the 'exception' in 42 U.S.C. ' 300aa-11(a)(2)(B). This provision shows Congressional response to possible confusion regarding the new no-fault compensation system by minimizing the consequence of certain errors.” This exception, the court found, was “driven by a special need, as was the case in Holland,” and its presence in the code therefore did not prove that Congress wanted to bar equitable tolling.

The second statutory provision cited by the respondent as evidence that Congress meant to prohibit equitable tolling in Vaccine Program cases was its permitting claimants to file more than 36 months after an injury manifests when that injury has been newly added to the Vaccine Injury Table. The court found that this provision was “aimed at scientific advances in medicine that enable the establishment of new Table Injuries, for which causation will be presumed. Individual factual circumstances, the grist of equitable tolling claims, played no role in enactment of this provision.” This was, therefore, another special need provision, like the state court filing exception discussed above. And its presence in the law did not defeat the Irwin presumption in favor of equitable tolling.

“In sum,” the court concluded, “measuring the Vaccine Act by the standards in Irwin, Brockamp, and Holland, we see no reason to bar equitable tolling of the statute of limitations in the Vaccine Act, and therefore must conclude that there is not 'good reason to believe that Congress did not want the equitable tolling doctrine to apply.' Brockamp, 519 U.S. at 350.”

For Use in Limited Circumstances Only

Despite its finding that the Brice holding was too restrictive and did not represent Congress's will, the Federal Circuit was not ready, in the guise of equity, to read a discovery rule into the Vaccine Act. “Dr. Cloer individually asks for the same relief as a matter of equity that Congress has withheld from all petitioners as a matter of law,” stated the court, “but we find no basis in equity for doing so.” Had the petitioner been able to allege some additional problem with her case, such as that she had been the victim of fraud or duress, she might have been permitted to proceed with her claim. But Cloer could not show, in line with Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005), that she had diligently pursued her rights, yet “some extraordinary circumstance stood in [her] way.”

In sum, concluded the court, in spite of the fact that the Vaccine Act's 36-month filing period is no longer considered absolutely inviolable, “equitable tolling under the Vaccine Act due to unawareness of a causal link between an injury and administration of a vaccine is unavailable.”

Last month, we discussed the fact that the limitations period for the filing of claims under the “Vaccine Act” has kept many from recovering for vaccine-related injuries. We went on to discuss one case wherein the claimant tried to stretch the boundaries, saying her case should not be time-barred. In Cloer v. Secretary of Health and Human Services, 2011 U.S. App. LEXIS 16449 (Fed. Cir. 9/5/11), the U.S. Court of Appeals for the Federal Circuit reversed a Federal Circuit panel decision and found against a woman who had won the right to pursue her claim. That case, while foreclosing the claimant's right to seek redress, also contained the reversal of a precedent set 10 years earlier, in Brice v. Secretary of Health & Human Services , 240 F.3d 1367 (Fed. Cir. 2001). The discussion continues herein.

Cloer

The U.S. Court of Appeals for the Federal Circuit concluded in the first part of its opinion in Cloer that Congress did not write an explicit discovery rule into the statute. The question next became whether Congress had conveyed its refusal to permit an implied discovery rule that would equitably toll the statute of limitations until discovery of an injury.

Throughout the case, and despite the binding precedent in Brice foreclosing the possibility of equitable tolling in vaccine injury cases, the plaintiff, Dr. Cloer had requested that the court make it available and apply it to the facts of her case. The Chief Special Master and the Court of Federal Claims rejected that request, and the Court of Federal Claims panel did not address the issue. However, on rehearing, the en banc court determined it would reconsider Brice. Before the hearing, it addressed three questions to the parties: 1) Should the “discovery rule,” which is generally used in medical malpractice cases, apply to 42 U.S.C.
' 300aa-16(a)(2) so that the statute of limitations does not begin to run until
the claimant knows or should know the cause of her injury?; 2) Should Brice be overruled to permit equitable tolling of 42 U.S.C. ' 300aa-16(a)(2)?; and 3) If equitable tolling is permitted, is the Cloer case one to which it should apply?

Implied 'Discovery Rule' Rejected

To answer the first question, the court had to determine whether Congress, in the text of the Vaccine Act and considering its overall structure, had conveyed its refusal to permit an implied discovery rule. (It had already held that Congress did not write an explicit discovery rule into the statute.) The court concluded that it had, because Congress set the triggering event in the statute as the first onset of symptoms, not the discovery of a causal connection, even though it had considered such a triggering event before enacting the statute of limitations. In addition, said the court, “a significant motive for Congress in enacting the Vaccine Program was to provide an efficient, simple, and easy to administer system for processing vaccine injury claims. We think the triggering mechanism selected by Congress for the statute of limitations promotes those goals, whereas a discovery rule may not.”

Brice is Overruled

It is with the court's second question on equitable tolling ' whether Brice should be overruled to permit equitable tolling of 42 U.S.C. ' 300aa-16(a)(2) ' that a new precedent was set in Cloer.

The court first turned to the U.S. Supreme Court's observation in John R. Sand & Gravel Co. v. United States , 552 U.S. 130, 133 (2008), that “[m]ost statutes of limitations seek primarily to protect defendants against stale or unduly delayed claims.” These types of limitations statutes have no bearing on the jurisdiction of a court, so equitable tolling can be invoked to provide relief from time-of-filing limits. Conversely, other statutes' limitations periods were enacted in order to preclude courts from offering extensions; for example, some time limitations are in place to facilitate the administration of claims. Therefore, whether a particular statute of limitations is treated as “jurisdictional” depends on the overall context of the statute.

Three Supreme Court decisions helped inform the court in its effort to decipher whether the Vaccine Act's statute of limitations is jurisdictional or not. In the first, Irwin v. Department of Veterans Affairs , 498 U.S. 89 (1990), the Supreme Court stated that all federal statutes of limitations are to be presumed amenable to equitable tolling unless Congress provides to the contrary. Irwin left interpretation of whether such Congressional provision had been made in specific statutes to later cases.

Guidance concerning such interpretation came seven years later, when the Court decided United States v. Brockamp , 519 U.S. 347 (1997). Brockamp framed the rebuttal question as “whether there is good reason to believe that Congress did not want equitable tolling to apply.” The Court offered five factors to be used in determining whether Congress rebutted the basic Irwin presumption: 1) the statute's detail; 2) the statute's technical language; 3) the statute's multiple iteration of the limitations period; 4) the statute's explicit inclusion of exceptions; and 5) the statute's underlying subject matter.

The Federal Circuit used two of these five Brockamp factors in deciding, in Brice, that equitable tolling is not available in Vaccine Act claims. Those same factors ' that the statute contains multiple iterations of the limitations period and that the statute includes exceptions to the limitations period ' were also present in Cloer. Specifically, the government pointed to two specific exceptions in the Vaccine Act to the 36-month statute of limitations, and argued that the Vaccine Act's detail as a whole revealed multiple strict deadlines. The government's arguments might have carried the day, but for a third Supreme Court decision, rendered nine years after Brice.

Holland Changed the Game

“The correct analysis of the government's 'exceptions' points,” said the Cloer court, “is informed by the Supreme Court's recent decision in Holland v. Florida , 130 S. Ct. 2549 (2010), of which the Brice court did not have the benefit.”

The exceptions argument goes something like this: Because Congress wrote into the statute one or more exceptions to the strict requirements for a timely filing, Congress must have intended that those exceptions, and no others, would apply. However, the Holland decision opened up another possibility. In that case, the Supreme Court found that although a federal statute concerning the filing of federal habeas corpus petitions by state prisoners contained an exception to the general statute of limitations imposed by the statute, it was inserted to clarify a special source of confusion that might have arisen between state and federal law. As such, that exception to the statute of limitations did not necessarily indicate that Congress had intended, in passing the act in question, to rebut the fundamental Irwin presumption in favor of equitable tolling.

The government pointed to two exceptions to the filing time limits within the Vaccine Act. One, 42 U.S.C. ' 300aa-11(a)(2)(B), says that vaccine-injured parties must seek relief through the Vaccine Program, and that any state suits they file in the mistaken belief that they can seek redress there must be dismissed. It was foreseeable that claimants could therefore lose the right to seek relief because they thought they had properly filed in state court, when in fact that forum was not available to them. If their time for filing through the federal system ran out because they relied on their state court filing, an injustice would be done. Therefore, Congress saw fit to include a provision allowing petitioners to benefit from the earlier state filing date when faced with the Vaccine Act's statute of limitations, and also a provision that tolls state statutes of limitations during the pendency of Vaccine Program action. Looking at these provisions, the Cloer court concluded it was clear that “Congress had a specific concern, unrelated to equitable tolling considerations, in enacting the 'exception' in 42 U.S.C. ' 300aa-11(a)(2)(B). This provision shows Congressional response to possible confusion regarding the new no-fault compensation system by minimizing the consequence of certain errors.” This exception, the court found, was “driven by a special need, as was the case in Holland,” and its presence in the code therefore did not prove that Congress wanted to bar equitable tolling.

The second statutory provision cited by the respondent as evidence that Congress meant to prohibit equitable tolling in Vaccine Program cases was its permitting claimants to file more than 36 months after an injury manifests when that injury has been newly added to the Vaccine Injury Table. The court found that this provision was “aimed at scientific advances in medicine that enable the establishment of new Table Injuries, for which causation will be presumed. Individual factual circumstances, the grist of equitable tolling claims, played no role in enactment of this provision.” This was, therefore, another special need provision, like the state court filing exception discussed above. And its presence in the law did not defeat the Irwin presumption in favor of equitable tolling.

“In sum,” the court concluded, “measuring the Vaccine Act by the standards in Irwin, Brockamp, and Holland, we see no reason to bar equitable tolling of the statute of limitations in the Vaccine Act, and therefore must conclude that there is not 'good reason to believe that Congress did not want the equitable tolling doctrine to apply.' Brockamp, 519 U.S. at 350.”

For Use in Limited Circumstances Only

Despite its finding that the Brice holding was too restrictive and did not represent Congress's will, the Federal Circuit was not ready, in the guise of equity, to read a discovery rule into the Vaccine Act. “Dr. Cloer individually asks for the same relief as a matter of equity that Congress has withheld from all petitioners as a matter of law,” stated the court, “but we find no basis in equity for doing so.” Had the petitioner been able to allege some additional problem with her case, such as that she had been the victim of fraud or duress, she might have been permitted to proceed with her claim. But Cloer could not show, in line with Pace v. DiGuglielmo , 544 U.S. 408, 418 (2005), that she had diligently pursued her rights, yet “some extraordinary circumstance stood in [her] way.”

In sum, concluded the court, in spite of the fact that the Vaccine Act's 36-month filing period is no longer considered absolutely inviolable, “equitable tolling under the Vaccine Act due to unawareness of a causal link between an injury and administration of a vaccine is unavailable.”