United States Court of Appeals 

for the Federal Circuit 

__________________________ 

MELISSA CLOER, M.D., 

Petitioner-Appellant, 

v. 

SECRETARY OF HEALTH AND HUMAN 

SERVICES, 

Respondent-Appellee. 

__________________________ 

2009-5052 

__________________________ 

Appeal from the United States Court of Federal 

Claims in 05-VV-1002, Judge Lawrence J. Block. 

__________________________ 

ON APPLICATION FOR ATTORNEYS’ FEES AND 

COSTS 

__________________________ 

ROBERT T. MOXLEY, Robert T. Moxley, P.C., of Cheyenne, Wyoming, filed an application for attorneys’ fees 

and costs for petitioner-appellant. MARI C. BUSH, Kaye 

and Bush, LLC, of Denver, Colorado, filed a supplement 

to the application. Of counsel was Robert T. Fishman, of 

Denver, Colorado. 

ANISHA S. DASGUPTA, Attorney, Appellate Staff, Civil 

Division, United States Department of Justice, of Washington, DC, filed an opposition for respondent-appellee. 
CLOER v. HHS 2

With her on the opposition were TONY WEST, Assistant 

Attorney General, and THOMAS M. BONDY, Attorney. 

__________________________ 

 Before RADER, Chief Judge, NEWMAN, LOURIE, 

CLEVENGER, BRYSON, GAJARSA,1 LINN, DYK, PROST, 

MOORE, O’MALLEY, REYNA, and WALLACH, Circuit Judges. 

Opinion for the Court filed by Circuit Judge REYNA, in 

which Circuit Judges NEWMAN, LINN, DYK, MOORE, 

O’MALLEY, and WALLACH join. 

Dissenting opinion filed by Circuit Judge BRYSON, in 

which Chief Judge RADER and Circuit Judges LOURIE, 

CLEVENGER, GAJARSA, and PROST join. 

REYNA, Circuit Judge. 

O R D E R 

Dr. Melissa Cloer sought compensation under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. 

§§ 300aa-1 to -34 (“Vaccine Act”), alleging that her Hepatitis B vaccination caused her multiple sclerosis (“MS”). 

The Chief Special Master dismissed her petition as untimely, and the United States Court of Federal Claims 

affirmed. Dr. Cloer appealed, and although she did not 

ultimately prevail on the merits of her Vaccine Act claim, 

her appeal prompted a change of law in a limited way 

that potentially opens the door to certain Vaccine Act 

petitioners who otherwise would have been precluded 

from seeking redress. 

The court must now decide whether Dr. Cloer is eligible to receive an award of reasonable attorneys’ fees and 

costs in connection with her appeal. The Vaccine Act 

 1 Judge Gajarsa assumed senior status on July 31, 

2011. 
provides for the recovery of attorneys’ fees “on a petition 

filed under section 300aa-11” when “the petition was 

brought in good faith and there was a reasonable basis for 

the claim for which the petition was brought.” 42 U.S.C. 

§ 300aa-15(e)(1). We believe 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. Therefore, we 

hold that the court has discretion to remand for a determination of whether Dr. Cloer should be awarded reasonable attorneys’ fees and costs. 

I. BACKGROUND

Dr. Cloer was vaccinated for Hepatitis B in 1996 and 

1997. Soon thereafter, she developed symptoms of MS. At 

that time, the medical literature was silent as to any 

connection between the Hepatitis B vaccination and MS. 

Several years later, Dr. Cloer learned of such a potential 

connection for the first time. By then her MS had significantly progressed. 

Dr. Cloer filed a petition for compensation under the 

Vaccine Act. The Chief Special Master dismissed her 

petition as untimely because it was filed more than 36 

months after her first symptom of MS had occurred, and 

the Court of Federal Claims affirmed. Cloer v. Sec’y of 

Health & Human Servs., 85 Fed. Cl. 141 (2008). Dr. Cloer 

appealed, and a panel of this court reversed and remanded, ruling that her petition was not time-barred. 

Cloer v. Sec’y of Health & Human Servs., 603 F.3d 1341 

(Fed. Cir. 2010), vacated, 399 F. App’x 577 (Fed. Cir. 

2010). 

Due to the importance of the issues raised by Dr. 

Cloer, we granted the government’s petition for rehearing 

en banc to determine the applicability of the statute of 

limitations to Dr. Cloer’s case. Cloer v. Sec’y of Health & 
CLOER v. HHS 4

Human Servs., 654 F.3d 1322 (Fed. Cir. 2011) (en banc). 

In Cloer, we held that the Vaccine Act’s statute of limitations is not jurisdictional and that some claims brought 

under the Vaccine Act are subject to equitable tolling. Id. 

at 1344. The court rejected a discovery rule but concluded 

that Dr. Cloer’s claim does not meet those equitable 

tolling criteria and dismissed her petition as untimely. 

Id. at 1340, 1344-45. Prior to Cloer, courts treated 

§ 300aa-16(a)(2) as jurisdictional, and applications for 

attorneys’ fees related to time-barred petitions were 

dismissed for lack of jurisdiction. In other words, if a 

petition was untimely, there was no jurisdiction. Cloer

rejected that jurisdictional theory. 

Dr. Cloer requested an award of reasonable attorneys’ 

fees and costs incurred in her appeal. The government 

opposed her request on the ground that the Vaccine Act 

does not permit such an award in connection with a timebarred claim. 

II. DISCUSSION

The Vaccine Act establishes the criteria to be considered in determining whether a petitioner is eligible for 

attorneys’ fees. Section 300aa-15(e) provides: 

(1) In awarding compensation on a petition filed under section 300aa-11 of this title the special master or court shall also 

award as part of such compensation an 

amount to cover— 

(A) reasonable attorneys’ fees, and 

(B) other costs, 

incurred in any proceeding on such petition. If the judgment of the United States 

Court of Federal Claims on such a petition 

does not award compensation, the special 
master or court may award an amount of 

compensation to cover petitioner's reasonable attorneys’ fees and other costs incurred in any proceeding on such petition 

if the special master or court determines 

that the petition was brought in good faith 

and there was a reasonable basis for the 

claim for which the petition was brought. 

(emphasis added). In sum, attorneys’ fees are available 

where the petition was brought in good faith and there 

was a reasonable basis for the claim for which the petition 

was brought. 

This court has not conducted a good faith and reasonable basis analysis of Dr. Cloer’s claim; nor did it require 

the Special Master or Court of Federal Claims to conduct 

such an analysis. Dr. Cloer asserted a reasonable limitations argument, and absent a determination that her 

Vaccine Act petition was not brought in good faith or that 

the claim for which the petition was brought lacked a 

reasonable basis, she should be eligible to receive an 

award of reasonable attorneys’ fees and costs incurred in 

proceedings related to her petition. 

The statutory language of the Vaccine Act supports 

our holding. Section 300aa-15(e)(1) provides for the award 

of reasonable attorneys’ fees and costs arising from “a 

petition filed under section 300aa-11.” As § 300aa-11(a)(1) 

indicates, “[a] proceeding for compensation under the 

[Vaccine] Program for [a] vaccine-related injury or death 

shall be initiated by service upon the Secretary and the 

filing of a petition . . . .” § 300aa-11(a)(1) (emphasis 

added). The Court of Federal Claims and its special 

masters have “jurisdiction over proceedings to determine 

if a petitioner under section 300aa-11 of this title is 

entitled to compensation under the [Vaccine] Program 

. . . .” § 300aa-12(a) (emphasis added). In other words, 
CLOER v. HHS 6

when a petition is filed, it commences a proceeding over 

which the Court of Federal Claims has jurisdiction. 

Unless we conclude that Dr. Cloer’s filing was a “petition 

filed,” neither we nor the Court of Federal Claims had 

jurisdiction over her appeal.2 

The plain language of the statute indicates that Congress chose not to tie the right to attorneys’ fees to compliance with § 300aa-16. Section 300aa-15(e) does not 

reference § 300aa-16; rather, it refers to “a petition filed 

under section 300aa-11.” Nor does the plain language of 

§ 300aa-11(a)(1) require that a petition be timely filed in 

accordance with § 300aa-16. By contrast, § 300aa11(a)(2)(A), which refers to civil actions brought in state 

or federal court, does require the filing of a petition “in 

accordance with section 300aa-16.”3 The absence of an 

analogous reference to § 300aa-16 in the attorneys’ fees 

provision suggests that Congress did not intend to require 

compliance with § 300aa-16 as a prerequisite for the 

recovery of attorneys’ fees. 

Other statutory provisions support this interpretation. Section 300aa-12(b)(1) states that “[i]n all proceedings brought by the filing of a petition under section 

300aa-11(b),” the Secretary shall be named as a respon-

 2 This interpretation is also consistent with Vaccine 

Rule 2, which states that “[a] proceeding for compensation 

under the Vaccine Act is commenced by filing a petition” 

but does not explicitly require that the petition be filed in 

compliance with § 300aa-16. 

3 Section 300aa-11(a)(2)(A) provides: “No person 

may bring a civil action for damages . . . in a State or 

Federal court for damages arising from a vaccine-related 

injury or death . . . unless a petition has been filed, in 

accordance with section 300aa-16 of this title . . . .” 
dent and shall participate and be represented in the 

proceedings. Section 300aa-12(b)(2) requires that within 

30 days after receiving service of “any petition filed under 

section 300aa-11,” the Secretary shall publish notice of 

the petition in the Federal Register. Section 300aa12(c)(6)(E) obligates the Chief Special Master to report to 

Congress the number of “petitions filed under section 

300aa-11” annually. Section 300aa-13(c) defines “record” 

as the record established on “a petition filed under section 

300aa-11.” In referring to “petition[s] filed under section 

300aa-11,” these provisions refer to all petitions, not just 

those later determined to have been timely filed. Any 

requirement that naming the Secretary as a party, publishing notice in the Federal Register, reporting to Congress, and creating the record be held at abeyance until a 

determination is made as to the timeliness of the petition 

is unreasonable and would have impractical implications. 

Section 300aa-15(e) applies to costs “incurred in any 

proceeding on such petition,” and not solely those fully 

adjudicated on the merits. Congress made clear that 

denying interim attorneys’ fees under the Vaccine Act is 

contrary to an underlying purpose of the Vaccine Act. See 

Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 

1352 (Fed. Cir. 2008). As we explained in Avera: 

[O]ne of the underlying purposes of the Vaccine 

Act was to ensure that vaccine injury claimants have readily available a competent bar to 

prosecute their claims. Denying interim fee 

awards would clearly make it more difficult for 

claimants to secure competent counsel because 

delaying payments decreases the effective value 

of awards. . . . Interim fees are particularly appropriate in cases where proceedings are protracted and costly experts must be retained. 
CLOER v. HHS 8

Id. (emphasis added) (citation omitted); see also H.R. Rep. 

No. 99-908, at 22 (1986) (“the Committee does not intend . 

. . to limit petitioners’ ability to obtain qualified assistance and intends . . . that the court exercise its discretion 

to award fees [resulting from] non-prevailing, good faith 

claims.”). 

The overarching purpose of the Vaccine Act and the 

National Childhood Vaccine Injury Compensation Program it created is to award compensation “to vaccineinjured persons quickly, easily, and with certainty and 

generosity.” H.R. Rep. No. 99-908, at 3. Remedial legislation like the Vaccine Act should be construed in a manner 

that effectuates its underlying spirit and purpose. See 

Atchison, Topeka, & Santa Fe Ry. Co. v. Buell, 480 U.S. 

557, 561-62 (1987). Our interpretation of the statute 

fulfills congressional intent and the Act’s legislative 

purpose. Congress acknowledged that “[l]awsuits and 

settlement negotiations can take months and even years 

to complete. Transaction costs – including attorneys’ fees 

and court payments – are high. And in the end, no recovery may be available. Yet futures have been destroyed 

and mounting expenses must be met.” H.R. Rep. No. 99-

908, at 6. Congress recognized that having to shoulder 

attorneys’ fees could deter victims of vaccine-related 

injuries from seeking redress. 

Congress did not intend for only prevailing petitioners 

to receive an award of reasonable attorneys’ fees and 

costs. To the contrary, compensation on a petition should 

include “an amount to provide for reasonable attorneys’ 

fees and other costs incurred in proceedings on the petition. But even where the court does not award compensation on a petition, it may, in its discretion, make such an 

award for attorneys’ fees and costs if it determines that 

the action was brought in good faith and that there was a 
reasonable basis for the claim for which the action was 

brought.” Id. at 21 (emphasis added). 

The statutory language requiring a reasonable basis 

for the claim for which the petition was brought is broad 

enough to encompass the statute of limitations issue as 

well as the underlying merits of the claim. It is beyond 

dispute that Congress intended attorneys’ fees to be 

awarded only in cases brought in good faith and where 

there was a reasonable basis for the claim underlying the 

petition, even where the petitioner does not prevail. The 

good faith and reasonable basis requirements apply to the 

claim for which the petition was brought; this applies to 

the entire claim, including timeliness issues. Attorneys’ 

fees should be denied if on remand, it is determined that 

the petition was not brought in good faith or there was no 

reasonable basis for the claim for which the petition was 

brought. 

Finally, Dr. Cloer deserves a determination as to 

whether she is eligible to receive attorneys’ fees because 

her appeal inspired a shift in vaccine jurisprudence. 

Indeed, the government does not dispute the reasonableness of Dr. Cloer’s underlying claim or allege that it was 

not brought in good faith, which is generally presumed. 

The confines of the Vaccine Act make clear that a petitioner need not prevail to receive attorneys’ fees. 

The dissent contends that Dr. Cloer is not entitled to 

attorneys’ fees as a matter of law and creates a rigid rule 

applicable to requests for attorneys’ fees in vaccine cases 

where the petitioner’s claim is rejected solely on limitations grounds. Cloer overruled our precedent treating the 

statute of limitations as jurisdictional and did not endorse 

the underlying statutory interpretation of such cases. 

Rather, it eliminated the entire bases for such opinions. 

Despite this, the dissent would treat Dr. Cloer’s petition 

under a pre-Cloer analysis by retroactively eliminating 
CLOER v. HHS 10

jurisdiction to award attorneys’ fees in connection with an 

unsuccessful statute of limitations argument. 

The dissent, primarily in footnote one, argues that 

§ 12 vests the Court of Federal Claims and special masters with jurisdiction to determine whether a petitioner is 

eligible to file a petition, even if the petition is later 

deemed untimely. See Dis. Op. at 2 n.1. This construction 

of “petition filed” for purposes of § 300aa-15(e) is inconsistent with the language of the Vaccine Act. Because 

§ 300aa-16(a) states that “no petition may be filed” if it is 

untimely, the dissent creates a distinction between a 

“filing a petition” for purposes of § 300aa-11 and a “petition filed” for purposes of § 300aa-15(e) and other statutory provisions. Under this reasoning, an untimely filed 

petition is a “petition” sufficient to commence proceedings 

but is not a “petition filed” for purposes of § 300aa-16 and 

§ 300aa-12. Such a distinction between “petitions” and 

“petitions filed” leads to absurd results, namely that 

neither this court nor the Court of Federal Claims had 

jurisdiction over Dr. Cloer’s petition. 

The dissent also contends that Dr. Cloer is not entitled to attorneys’ fees because the Vaccine Act requires an 

evaluation of the reasonableness of the claim for which 

the petition was brought, which indicates that Congress 

did not contemplate awarding attorneys’ fees in a case 

that never reached a merits determination. See Dis. Op. 

at 4. However, as explained above, § 300aa-15(e) explicitly 

refers to fees “incurred in any proceeding on such petition,” including non-frivolous petitions ultimately unsuccessful on limitations grounds. Holding that attorneys’ 

fees are only available where a petition has been subjected to a final adjudication on the merits is also inconsistent with the recognized practice of awarding interim 

attorneys’ fees, which by definition does not require a 

final adjudication on the merits. 
The dissent claims that “the legislative history of the 

Vaccine Act is silent as to the reason for the Act’s highly 

unusual attorney fee provision” and goes on to speculate 

on Congress’s motivation for departing from the typical 

American Rule of fee awards. See Dis. Op. at 5 (“It may 

well be that Congress concluded . . .”); id. (“Congress could 

well have concluded . . .”). Such speculation is unnecessary, however, in light of the remedial nature of the 

Vaccine Act and Congress’s intent to facilitate awards to 

injured parties. 

The dissent advocates adoption of a strict rule that 

strips discretion from the court and in so doing disregards 

the Vaccine Act’s spirit and purpose. The dissent’s interpretation would discourage potential Vaccine Act petitioners from pursuing claims and ignores that potential 

petitioners will likely be reluctant to bring claims under 

the Vaccine Act for fear of significant financial risk even 

when strong arguments exist to challenge the applicability of the statute of limitations. 

III. CONCLUSION

This Order recognizes that issues relating to the 

award of attorneys’ fees in connection with challenges 

brought on limitations grounds will frequently arise in 

vaccine injury cases. Under Cloer, the Vaccine Act does 

not incorporate a discovery rule, and the statute of limitations begins to run on “the calendar date of the occurrence 

of the first medically recognized symptom or manifestation of onset of the [claimed] injury,” subject to the doctrine of equitable tolling. Cloer, 654 F.3d at 1325, 1340, 

1344-45. If a discovery rule were adopted, as Dr. Cloer 

now urges in the Supreme Court, the limitations inquiry 

in vaccine injury cases would then become when the 

claimant first discovered or should have discovered the 

potential cause of the disease or injury, rather than when 
CLOER v. HHS 12

the claimant first experienced symptoms.4 Under either 

view, a petitioner may become embroiled in litigation 

regarding the statute of limitations, and today’s order will 

enable reasonable claims for attorneys’ fees arising from 

that litigation. 

A petitioner who asserts an unsuccessful but nonfrivolous limitations claim should be eligible for a determination of whether reasonable attorneys’ fees and costs 

incurred in proceedings related to his or her petition 

should be awarded. Therefore, we remand for a determination as to whether Dr. Cloer’s petition was brought in 

good faith and whether the claim for which her petition 

was brought had a reasonable basis. 

Accordingly, 

IT IS ORDERED THAT: 

Dr. Cloer’s application for reasonable attorneys’ fees 

and costs be remanded to the Court of Federal Claims. 

The Court of Federal Claims is directed to make a determination consistent with this Order. 

FOR THE COURT

April 11, 2012

Date 

/s/ Jan Horbaly

Jan Horbaly 

Clerk 

 4 Dr. Cloer filed a petition for certiorari in the 

United States Supreme Court on December 29, 2011. 
United States Court of Appeals 

for the Federal Circuit 

__________________________ 

MELISSA CLOER, M.D., 

Petitioner-Appellant, 

v. 

SECRETARY OF HEALTH AND HUMAN 

SERVICES, 

Respondent-Appellee. 

__________________________ 

2009-5052 

__________________________ 

Appeal from the United States Court of Federal 

Claims in 05-VV-1002, Judge Lawrence J. Block. 

__________________________ 

 BRYSON, Circuit Judge, with whom RADER, Chief 

Judge, and LOURIE, CLEVENGER, GAJARSA, and PROST, 

Circuit Judges, join, dissenting. 

The question whether a party who has filed an untimely Vaccine Act petition is entitled to an award of 

attorneys’ fees under section 15(e)(1) of the Act, 42 U.S.C. 

§ 300aa-15(e)(1), presents a difficult statutory construction issue. While there is no clear path to the answer in 

the plain language or legislative history of the Vaccine 

Act, I believe that close attention to the text that Congress chose and consideration of the role of the feeshifting provision both in the Vaccine Act and in the 
CLOER v. HHS 2

broader context of federal fee-shifting statutes require 

that we deny the fee request in this case. 

1. In Brice v. Secretary of Health & Human Services, 

358 F.3d 865, 869 (Fed. Cir. 2004), this court held that the 

attorneys’ fees provision of the Vaccine Act makes fees 

available only “in connection with a petition filed under 

section 300aa-11,” and that a petition dismissed on 

grounds of untimeliness is not “a petition filed under 

section 300aa-11,” as required by section 15(e). Similarly, 

in Martin v. Secretary of Health & Human Services, 62 

F.3d 1403, 1406 (Fed. Cir. 1995), the court explained that 

in order for an attorneys’ fee award to be permitted under 

section 15(e)(1), “there must first be a judgment ‘on such a 

petition’—that is, ‘on a petition filed under section 300aa11.’” While this court’s en banc decision in Cloer v. Secretary of Health & Human Services, 654 F.3d 1322 (Fed. 

Cir. 2011), overruled Brice and Martin insofar as they 

were based on lack of subject matter jurisdiction, see 654 

F.3d at 1341 & n.9, the en banc court did not disavow the 

analysis of the statutory structure in those cases, and 

that analysis is still sound. In substance, as modified by 

the en banc decision in Cloer, Brice and Martin stand for 

the following principles: (1) section 16(a) of the Vaccine 

Act directs that “no petition may be filed for compensation 

under the Program”—and thus under section 11—after 

the expiration of the applicable time period, 42 U.S.C. 

§ 300aa-16(a); (2) section 15(e)(1) allows an attorneys’ fee 

award only when a petition is filed under section 11, id.

§ 300aa-15(e)(1); and therefore (3) an attorneys’ fee award 

may be made only if the claimant files a timely petition, 

either by satisfying the applicable limitations period of 

section 16 or successfully invoking equitable tolling.1

 1 This interpretation of the statute does not, as the 

majority opinion suggests, create a jurisdictional impasse. 
3 CLOER v. HHS

Besides the reference to a petition filed under section 

11, section 15(e)(1) provides for an award of attorneys’ 

fees to an unsuccessful petitioner “if the judgment . . . on 

such a petition does not award compensation.” Although 

that language, standing alone, could be understood to 

refer either to a judgment on the merits or to a dismissal 

for untimeliness, the statutory context indicates that it 

does not refer to a judgment dismissing the petition for 

untimeliness. The same language is used in section 21 of 

the statute, where it clearly refers only to a judgment on 

the merits. That section provides that if “the judgment 

did not award compensation,” the petitioner is required to 

file “an election in writing to accept the judgment or to file 

a civil action for damages for such injury or death.” 42 

U.S.C. § 300aa-21(a)(2). Because the timely filing of a 

Vaccine Act petition is a prerequisite to filing a civil tort 

suit, see id. § 300aa-11(a)(2)(A), a claimant who has filed 

an untimely petition is not eligible to file a civil action for 

damages. The requirement in section 21 that a petitioner 

elect whether to file a civil tort suit when “the judgment 

did not award compensation” therefore does not refer to a 

claimant whose petition has been denied as untimely. In 

light of the meaning given to that phrase in section 21, it 

is fair to infer that the parallel reference in section 

15(e)(1) to a “judgment [that] does not award compensa-

 

Section 12 of the Act gives the Court of Federal Claims 

and the special masters jurisdiction “over proceedings to 

determine if a petitioner under section 300aa-11 of this 

title is entitled to compensation.” 42 U.S.C. § 300aa12(a). That reference gives the Court of Federal Claims 

and the special masters jurisdiction to determine whether 

or not the petitioner is eligible under section 16 to file a 

petition for compensation, even if the petitioner is ultimately determined not to be eligible to file a petition. See

Martin, 62 F.3d at 1406. 
CLOER v. HHS 4

tion” likewise denotes a judgment on the merits, not a 

dismissal.2

Finally, section 16(c) of the Act reinforces the view 

that the phrase “a petition filed under section 300aa-11” 

in section 15(e) refers to a timely petition. Section 16(c) 

provides that if a petition is filed under section 11, state 

statutes of limitations shall be stayed for any civil action 

brought for the vaccine-related injury, beginning on the 

date the petition is filed and ending on the date that an 

election is made under section 21 to file the civil action. 

42 U.S.C. § 300aa-16(c). Because, as noted, such a civil 

action cannot be filed if the petition was untimely, the 

reference to “a petition filed under section 300aa-11” in 

section 16(c) can only mean a petition filed, as section 11 

requires, in accordance with section 16, i.e., within the 

statutory time limits. The same language—“a petition 

filed under section 300aa-11”—is used as a prerequisite 

for the payment of attorneys’ fees and costs in section 

15(e), which is a further textual indication that attorneys’ 

fees and costs are not intended to be paid in cases in 

which the petition was untimely. 

 2 The majority finds support for its decision in Avera v. Secretary of Health & Human Services, 515 F.3d 

1343 (Fed. Cir. 2008), which held that the Vaccine Act 

permits an award of interim fees to petitioners who are 

seeking compensation. Avera, however, concerned an 

interim award for a petitioner who had filed a timely 

petition and therefore was in position to obtain a judgment on the merits, either awarding or denying compensation. Nothing in Avera suggests that a fee award, 

whether interim or otherwise, is appropriate for a claimant who has not filed a timely petition. And nothing in 

this opinion would prohibit granting interim fees to a 

petitioner who has filed a timely petition and is seeking a 

compensation award. 
5 CLOER v. HHS

2. Although the legislative history of the Vaccine Act 

is silent as to the reason for the Act’s highly unusual 

attorney fee provision, the requirement that there be a 

timely filed petition and a judgment on the merits of the 

compensation request, as opposed to a dismissal of the 

petition for untimeliness, makes sense in light of the 

development and purposes of the Act. 

The Vaccine Act evolved from a series of bills that 

were introduced over a three-year period. All of the bills 

that featured compensation proceedings contained attorney fee provisions, and all of them, until the very end of 

the legislative process, required the claimant to be a 

prevailing party in order to be eligible for a fee award. 

See S. 2117 (Nov. 17, 1983); H.R. 5810 (June 7, 1984); 

H.R. 1780 (Mar. 27, 1985); S. 827 (Apr. 2, 1985). Several 

of the early proposals would have allowed claimants to 

elect to proceed either through the compensation program 

or by way of a civil tort remedy. The bill that was ultimately enacted, however, required that claimants exhaust 

their remedies through the Vaccine Act compensation 

program before filing a tort action. H.R. 5546 (Sept. 18, 

1986) (incorporated into S. 1744, which became P.L. 99-

660, Title III of which is the Vaccine Act). The proposed 

exhaustion requirement was controversial and sparked 

strong opposition from those who did not wish to see any 

impediments placed in the way of plaintiffs’ ability to 

pursue traditional civil tort remedies. See Vaccine Injury 

Compensation: Hearing on H.R. 1780, H.R. 4777, and 

H.R. 5184 Before the H. Subcomm. on Health and the 

Env’t of the H. Comm. on Energy and Commerce 187, 191, 

216 (1986) (statements of Jeffrey H. Schwartz, President, 

Dissatisfied Parents Together). 

It may well be that Congress concluded that because 

it was imposing an additional burden on claimants, it 
CLOER v. HHS 6

should make fee awards available to claimants who were 

required to go through the compensation program even 

though they were not eager to participate in the program 

and did not ultimately receive compensation. But since 

claimants who file untimely petitions do not enter the 

Vaccine Act compensation program and thus do not face 

the burden of litigating their entitlement to compensation 

on the merits, Congress could well have concluded that it 

did not make sense to provide attorneys’ fees to those 

parties in connection with their unsuccessful efforts to 

avoid the limitations period and gain access to the program. 

3. In attempting to discern Congress’s purpose in 

drafting the attorney fee provision at issue in this case, it 

is important to keep in mind some general principles 

governing fee-shifting statutes. The background rule 

applied by American courts is the “American rule,” under 

which each party pays its own fees. See Alyeska Pipeline 

Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 245 (1975). 

Some statutes permit or direct a departure from that rule, 

allowing prevailing parties to obtain an award of attorneys’ fees from the losing party under certain circumstances. But it is almost unknown in American practice 

for a statute to provide that the prevailing party will pay 

the losing party’s attorneys’ fees. The Supreme Court put 

that point succinctly in Ruckelshaus v. Sierra Club, 463 

U.S. 680, 683-84 (1983), where it noted (emphasis in 

original): 

Our basic point of reference is the “American 

Rule,” see Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 247 (1975), under which even 

“the prevailing litigant is ordinarily not entitled to 

collect a reasonable attorneys’ fee from the loser.” 

It is clear that generations of American judges, 
7 CLOER v. HHS

lawyers, and legislators, with this rule as the 

point of departure would regard it as “quite inappropriate” to award the “loser” an attorney’s fee 

from the “prevailing litigant.” 

The Supreme Court in Ruckelshaus was able to identify only one federal statute that, as of that time, permitted fee awards to a party whose views were rejected. 

That statute applied not to litigation, but to the promulgation of rules regarding the regulation of hazardous 

chemical substances. Ruckelshaus, 463 U.S. at 685 n.7, 

citing 15 U.S.C. § 2605(c)(4)(A). 

The statute at issue in this case plainly allows losing 

parties to obtain a fee award from the prevailing party in 

some circumstances. But because Congress departed 

from the governing principles applied in virtually every 

other federal fee-shifting statute, we should be cautious in 

interpreting the statutory mandate to extend beyond 

those cases in which fee-shifting was clearly intended. 

See Robert C. Herd & Co. v. Krawill Mach. Corp., 359 

U.S. 297, 304-05 (1959) (a rule of law “in derogation of the 

common law . . . must be strictly construed”); In re Crescent City Estates, 588 F.3d 822, 826 (4th Cir. 2009) (“Because fee-shifting statutes are ‘in derogation of the 

common law,’ courts are obligated to construe them 

strictly.”). 

That is particularly true in light of the practical effect 

of requiring the government to pay attorneys’ fees to 

persons who both fail to file a timely petition and then fail 

in their effort to show that their untimeliness was excused by equitable tolling—which is the only class of 

persons potentially affected by the resolution of the fee 

issue before us. Section 15(e)(1) of the Vaccine Act provides that attorneys’ fees can be paid to a petitioner to 
CLOER v. HHS 8

whom the court does not award compensation “if the 

special master or court determines that the petition was 

brought in good faith and there was a reasonable basis for 

the claim for which the petition was brought.” 42 U.S.C. 

§ 300aa-15(e)(1). As a preliminary matter, it would seem 

that if Congress had contemplated that claimants making 

untimely filings should be eligible for attorneys’ fees, it 

would have required both a reasonable basis for the 

underlying claim and a reasonable basis for the equitable 

tolling argument; it seems unlikely that Congress would 

want to compensate claimants who had a reasonable basis 

for the underlying claim but no reasonable basis to qualify 

for equitable tolling. More fundamentally, it seems quite 

implausible that in a case in which the claimant’s submission was held to be untimely, Congress would have 

wanted the special master and the court to conduct a 

collateral proceeding to determine whether, had the claim 

been eligible for consideration, it would have had a reasonable chance of success. Yet that is the effect of the 

court’s ruling today. 

In a case that has gone to judgment on the merits and 

the petitioner has lost, it is fairly easy for the special 

master and the court to determine whether the petitioner’s position on the merits was reasonable. In that 

setting, the special master and the court will have the 

entire record of the case before them to enable them to 

make that determination. It is an entirely different 

matter for the special master to have to conduct a sort of 

shadow trial to determine whether, if the claimant had 

made a timely filing, the petition would have had a reasonable chance of succeeding. Quite apart from the 

burden on the special masters and the court, the amount 

of attorney time (and thus the accumulating fees) that 

would be consumed by such a proceeding would likely 

exceed the fees expended on the typically much simpler 
9 CLOER v. HHS

question whether equitable tolling is available to the 

claimant. Again, it seems unlikely that Congress envisioned such a scheme, and in the absence of express 

congressional authorization, we should be cautious about 

engrafting one onto the statute. Caution is especially 

warranted in a case authorizing a monetary award 

against the government in light of well-settled principles 

of sovereign immunity. The Supreme Court has held that 

“[e]xcept to the extent it has waived its immunity, the 

Government is immune from claims for attorney's fees.” 

Ruckelshaus, 463 U.S. at 685-86. And the Court has 

recently reaffirmed that “a waiver of sovereign immunity 

must be ‘unequivocally expressed’ in statutory text”; that 

“[a]ny ambiguities in the statutory language are to be 

construed in favor of immunity”; and that “[a]mbiguity 

exists if there is a plausible interpretation of the statute 

that would not authorize money damages against the 

government.” FAA v. Cooper, No. 10-1024 (U.S. Mar. 28, 

2012), slip op. 5. 

For these reasons, I respectfully dissent.