United States Court of Appeals 

for the Federal Circuit ______________________ 

W. J., BY HIS PARENTS AND LEGAL GUARDIANS, 

R.J. AND A.J.,

Petitioner-Appellant

v.

SECRETARY OF HEALTH AND HUMAN 

SERVICES,

Respondent-Appellee

______________________ 

2022-2119

______________________ 

Appeal from the United States Court of Federal Claims 

in No. 1:21-vv-01342-KCD, Judge Kathryn C. Davis.

______________________ 

Decided: February 21, 2024

______________________ 

W. J., Staten Island, NY, pro se. 

 CASEN ROSS, Appellate Staff, Civil Division, United 

States Department of Justice, Washington, DC, argued for 

respondent-appellee. Also represented by BRIAN M.

BOYNTON, ABBY CHRISTINE WRIGHT; C. SALVATORE 

D’ALESSIO, LARA A. ENGLUND, HEATHER LYNN PEARLMAN, 

SARAH BLACK RIFKIN, Torts Branch, Civil Division, United 

States Department of Justice, Washington, DC. 

 ANGELA M. OLIVER, Haynes and Boone, LLP, Washington, DC, argued as amicus curiae counsel. 

______________________ 

Case: 22-2119 Document: 77 Page: 1 Filed: 02/21/2024
2 W. J. v. HHS

Before LOURIE, DYK, and STARK, Circuit Judges.

PER CURIAM. 

This is a case brought under the National Childhood 

Vaccine Injury Act of 1986, 42 U.S.C. §§ 300a-1 to -34, as 

amended (“the Vaccine Act”). R.J. and A.J., acting on behalf of appellant W.J. (“Appellant”), their son, and appearing without counsel, appeal from a decision of the United 

States Court of Federal Claims denying their petition for 

review and affirming a special master’s grant of a motion 

to dismiss as untimely under the Vaccine Act’s statute of 

limitations. We affirm.

I 

W.J. was born on February 4, 2004. Although he is now 

over the age of 18, his parents, R.J. and A.J. (“Parents”), 

remain his legal guardians, a role they have held throughout his life. W.J. was administered a Measles, Mumps, and 

Rubella (“MMR”) vaccine on February 24, 2005. About a 

year later, on March 7, 2006, W.J. was diagnosed with a 

speech delay. Another year later, on January 5, 2007, W.J. 

was diagnosed with autism. In the years that followed, 

W.J. experienced several bouts of immune-related blood 

disorders, including at least one resulting in hospitalization. After genetic testing in February 2019, Parents were 

informed that W.J. had been born with a chromosomal aberration known as an Xq28 duplication. 

On May 7, 2021, Parents filed a petition on behalf of 

W.J. requesting compensation under the Vaccine Act for 

chronic encephalopathy and immunodeficiency issues 

caused either by the MMR vaccine or by its significant aggravation of pre-existing injuries relating to W.J.’s chromosomal abnormality. Parents argued that due to W.J.’s 

Xq28 chromosomal duplication, the MMR vaccine was inappropriately administered to him in contravention of the 

vaccine’s warnings. 

Parents filed the petition in the Court of Federal 

Claims without the assistance of counsel. As is required by 

the Vaccine Rules, the petition was assigned to a special 

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W. J. v. HHS 3

master. See Vaccine Rule 3(a); see also 42 U.S.C. § 300aa12(d)(1). On June 3, 2021, the special master held an initial status conference, largely focusing on the petition’s request for equitable tolling. During the conference, the 

following exchange occurred: 

[Special Master]: Okay. So I know you probably are 

aware of this based on the petition, there is a statute 

of limitations issue that we will need to address 

since that’s a threshold issue, that is, if the statute 

of limitations has expired, then the case will be dismissed because it can no longer be brought. And I 

think that is something we probably need to deal 

with sooner rather than later so that we don’t use a 

lot of your time, energy, and money and the Court’s 

time and energy litigating a case where the statute 

of limitations has expired. 

And by talking about this I’m not diminishing in any 

way the experiences and the difficulty that your family has had. I just don’t want to lead you to have any 

unrealistic expectations about how the case may proceed. 

So I think the best course of action, [Government 

Counsel], is probably for the Government to file a 

Rule 4 report with any motion to dismiss or other 

legal filing with regard to the statute of limitations. 

And then I can ask [R.J.] to file any reply or response 

which he may [wish] to do so, and then I can rule on 

that issue.

[Government Counsel], what are your thoughts 

about that plan?

[Government Counsel]: Yes, Special Master, that 

sounds like an appropriate plan. 

[Special Master]: [R.J.], does that plan – is that plan 

acceptable with you?

[R.J.]: That sounds fair. Yes.

App’x 68-69 at 4:6-5:9. 

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4 W. J. v. HHS

On August 2, 2021, the Secretary of the Department of 

Health and Human Services (“Secretary”) filed a motion to 

dismiss the petition as untimely. Parents responded to the 

motion, arguing that equitable tolling was appropriate due 

to fraudulent concealment and/or extraordinary circumstances. 

Upon review, the special master noted that the latest 

possible time at which any timely claim could have been 

filed, based on the dates of manifestation asserted in the 

petition, was in April 2017, with many of the other claims 

having become untimely a decade earlier.1 The special 

master found that Parents’ petition, which was not filed 

until May 7, 2021, thus exceeded the Vaccine Act’s 36-

month statute of limitations. The special master rejected 

Parents’ equitable tolling arguments on the grounds that 

(1) W.J.’s mental incapacity did not qualify as an extraordinary circumstance because Parents failed to plead facts 

demonstrating that they, as W.J.’s legal guardians, were 

unable to file a claim on his behalf; and (2) Parents failed 

to demonstrate that the government’s alleged fraudulent 

concealment prevented them from timely pursuing compensation. Accordingly, the special master granted the 

Secretary’s motion and dismissed the case as untimely.

Parents then filed a motion for review of the special 

master’s decision in the Court of Federal Claims, arguing 

that the special master inappropriately raised the statute 

of limitations issue sua sponte, relied on an incorrect legal 

standard to reject their equitable tolling arguments, and 

impermissibly ruled on the merits of their claims. The 

court affirmed the special master’s decision and denied the 

motion for review, rejecting Parents’ arguments and finding that the special master acted within her discretion, 

1 Parents alleged that W.J. suffered (1) an encephalopathy Table injury, (2) a chronic encephalopathy injury, 

(3) a variety of immunodeficiency issues, and (4) significant 

aggravation of pre-existing cerebral and immunological 

damage. These different alleged injuries had different 

dates of manifestation. 

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W. J. v. HHS 5

properly applying both the correct standard of review and 

precedent governing equitable tolling.

Parents, continuing to act pro se and on behalf of W.J., 

timely appealed to us. We appointed amicus counsel (“Amicus”) to elaborate on certain issues in this appeal, and she 

has done so admirably.2

We have jurisdiction under 28 U.S.C. § 1295(a)(3) and 

42 U.S.C. § 300aa-12(f).

II

The Court of Federal Claims may only set aside a special master’s findings of fact or conclusions of law if they 

are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 42 U.S.C. § 300aa12(e)(2)(B). Findings of fact receive deferential review under an “arbitrary and capricious” standard, legal conclusions are reviewed de novo under the “not in accordance 

with the law” standard, and discretionary rulings are reviewed for “abuse of discretion.” Munn v. Sec’y of Health & 

Human Servs., 970 F.2d 863, 870 n.10 (Fed. Cir. 1992). We 

apply the same legal standards when reviewing a Court of 

Federal Claims judgment affirming that of a special master. See id. at 870. “That is, we may not disturb the judgment of the [Court of Federal Claims] unless we find that 

judgment to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Id.

It is within a special master’s discretion to weigh evidence. See id. at 871. For this and other reasons, “reversible error is extremely difficult to demonstrate” unless the 

special master has failed to consider the relevant evidence 

of record, drawn implausible inferences, or failed to provide 

a rational basis for the decision. Lampe v. Sec’y of Health 

& Human Servs., 219 F.3d 1357, 1360 (Fed. Cir. 2000) (internal quotation marks omitted); see also Munn, 970 F.2d 

2 The court expresses its gratitude to Angela Oliver, 

who accepted the amicus representation and, in that capacity, filed three briefs and delivered oral argument.

Case: 22-2119 Document: 77 Page: 5 Filed: 02/21/2024
6 W. J. v. HHS

at 870 (noting that arbitrary and capricious standard is 

“well understood to be the most deferential possible”).

A motion to dismiss for failure to state a claim upon 

which relief may be granted “is appropriate when the facts 

asserted by the claimant do not entitle him to a legal remedy.” Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. 

Cir. 2002). A complaint “must contain sufficient factual 

matter, accepted as true, to ‘state a claim to relief that is 

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 

570 (2007)).

This appeal concerns numerous issues, most raised by 

Parents but others introduced by Amicus or raised sua 

sponte by the court. We address each in turn below.

III

Before turning our attention to the arguments initially 

raised by Parents and Amicus, we address two questions 

that arose as this case proceeded before us: (i) whether a 

non-lawyer may proceed pro se in pressing an appeal of a 

Vaccine Act claim that was filed in the Court of Federal 

Claims on behalf of another person, and (ii) whether the 

general statute of limitations and tolling provision set out 

in 28 U.S.C. § 2501 applies to Vaccine Act claims. 

A 

R.J. and A.J., the parents of W.J., are not lawyers. In 

the Court of Federal Claims, they filed a petition setting 

out a Vaccine Act claim on behalf of W.J. and proceeded to 

prosecute that claim pro se in front of the special master 

and then again before a judge. Doing so is, at present, expressly authorized by the Rules of the Court of Federal 

Claims (“RCFC”), see RCFC 83.1(a)(3) (“An individual who 

is not an attorney may represent oneself or a member of 

one’s immediate family.”), and Vaccine Rule 14(a)(2) 

Case: 22-2119 Document: 77 Page: 6 Filed: 02/21/2024
W. J. v. HHS 7

(same).3 The Court of Federal Claims held in Kennedy 

v. Sec’y of Health and Human Servs., 99 Fed. Cl. 535, 542 

n.7 (Fed. Cl. May 16, 2011), aff’d, 485 F. App’x 435 (Fed. 

Cir. 2012), that because the Vaccine Act “authorizes parents to file petitions on behalf of their offspring it also authorizes parents to prosecute those cases once filed” (citing 

42 U.S.C. § 300aa-11(b)(1)(A)) (emphasis added).

When the panel reviewed the appellate briefing submitted by Parents and the Secretary, we determined we 

would benefit from appointment of Amicus counsel to address the issue of equitable tolling. When Amicus and the 

Secretary appeared at oral argument,4 we inquired, sua 

sponte, as to whether pro se representation by one family 

member of another is permitted in federal courts. See Oral 

Arg. at 1:01-2:26.5 Our inquiry was based on 28 U.S.C. 

§ 1654, which provides that in all United States courts 

“parties may plead and conduct their own cases personally 

or by counsel,” which other circuit courts have interpreted 

as prohibiting non-lawyer parents from “litigat[ing] the 

claims of their minor children in federal court.” Myers 

v. Loudon Cnty. Pub. Schs., 418 F.3d 395, 401 (4th Cir. 

2005); see also 28 U.S.C. § 2503(a) (“Parties to any suit in 

the United States Court of Federal Claims may appear before a judge of that court in person or by attorney.”). It is 

also true that Fed. Cir. R. 47.3 provides that “[a]n individual . . . may choose to be represented by counsel or to proceed without counsel but may not be represented by a non3 The Vaccine Act directed the Court of Federal 

Claims to promulgate procedural rules for Vaccine Act 

cases to “provide for a less-adversarial, expeditious, and informal proceeding for the resolution of petitions.” 42 

U.S.C. § 300aa-12(d)(2)(A).

4 Parents did not participate in oral argument but 

did submit a memorandum in lieu of oral argument. See 

ECF No. 58.

5 Available at https://oralarguments.cafc.us

courts.gov/default.aspx?fl=22-2119_09262023.mp3.

Case: 22-2119 Document: 77 Page: 7 Filed: 02/21/2024
8 W. J. v. HHS

member of the bar of this court,” and our court has on at 

least one occasion applied this rule to deny parents the opportunity to represent their child in appealing denial of a 

Vaccine Act claim. See Brice v. Sec’y of Health & Human 

Servs., 358 F.3d 865, 866 (Fed. Cir. 2004) (“[C]iting Federal 

Circuit Rule 47.3, the Clerk of Court informed [the minor 

Vaccine Act claimant]’s parents that they could not represent their son’s interests . . . in this court.”). Moreover, the 

Vaccine Act includes a provision for reimbursement of attorney’s fees, which permits courts to award attorney’s fees 

and costs even for unsuccessful petitions “brought in good 

faith” and prohibits attorneys from charging their clients 

more than the fees that are awarded. See 42 U.S.C. 

§ 300aa-15(e); see also Sebelius v. Cloer, 569 U.S. 369, 373-

74 (2013).

Following argument, the court ordered supplemental 

briefing on the representation question. See ECF No. 60. 

Having reviewed the supplemental briefing, we have determined that this case does not require us to answer our own 

question. As we have already noted, no party raised this 

issue. Even after we ordered supplemental briefing, the 

government does not ask us to dismiss this appeal based 

on lack of a proper representative for Appellant. Additionally, in permitting Parents to proceed before us pro se, we

are acting consistent with some of our own non-precedential decisions. See, e.g., Miles v. Sec’y of Health & Human 

Servs., 769 F. App’x 925, 925 (Fed. Cir. 2019); Rogero

v. Sec’y of Health & Human Servs., 748 F. App’x 996, 997 

(Fed. Cir. 2018); Padmanabhan v. Sec’y of Health & Human Servs., 638 F. App’x 1013, 1013 (Fed. Cir. 2016). 

Moreover, it would be highly inefficient, and we think unfair to Parents – who proceeded precisely as the Vaccine 

Rules and RCFC prescribe, and then proceeded here in a 

manner we have previously permitted, all without objection from the government – to dismiss this now fully 

briefed and argued appeal, especially as it relates to a petition filed nearly three years ago (based on injuries allegedly suffered beginning more than 17 years ago).

We are aware that at least one judge of the Court of 

Federal Claims has recently suggested that the RCFC 

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W. J. v. HHS 9

permitting this type of pro se representation may need to 

be reexamined. See Ricks v. United States, 159 Fed. Cl. 

823, 824 n.1 (Fed. Cl. May 6, 2022) (contending that RCFC 

83.1(a)(3) “creates a disturbing uncertainty, i.e., whether 

[a claimant] consents to [a family member’s] representation,” and consequently advocating that “[t]he Court’s 

Rules Committee should examine and potentially reform 

RCFC 83.1(a)(3)”). Nevertheless, for the reasons we have 

given above, we do not find it appropriate in this case to 

decide the representation question we alone injected into 

this appeal.

B 

A question first raised in Parents’ memorandum in lieu 

of oral argument is whether the tolling provision of 28 

U.S.C. § 2501, which sets out the statute of limitations that 

applies generally in the Court of Federal Claims, has applicability in Vaccine Act cases. See Memorandum in Lieu 

of Oral Argument of Appellant W.J., ECF No. 58 at 1-2 

(Sep. 6, 2023). We received post-argument briefing on this 

subject as well. Because resolution of this issue could be 

dispositive, and it presents a pure question of law, we will 

resolve it. We decide that § 2501’s statute of limitations 

and tolling provision are not applicable here.

Section 2501 sets forth the general statute of limitations, and a tolling provision, for claims filed in the Court 

of Federal Claims. It provides that:

[1] Every claim of which the United States Court of 

Federal Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues. . . . 

[2] . . .

[3] A petition on the claim of a person under legal 

disability . . . at the time the claim accrues may be 

filed within three years after the disability ceases.

28 U.S.C. § 2501 (numbers added). Paragraph [1] sets the 

statute of limitations at six years after the claim accrues, 

but not for a person under legal disability at the time his 

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10 W. J. v. HHS

claim accrues; paragraph [3] permits such a person to file 

his claim as late as three years after his disability ceases, 

a time which could be far longer than six years after it accrues. If paragraph [3], the tolling provision of § 2501, is 

applicable here, Appellant’s claim is timely because it is 

undisputed that W.J. still suffers from a legal disability 

and has at all pertinent times. We conclude, however, that

neither § 2501’s statute of limitations nor its tolling provision applies to Vaccine Act petitions. 

As an initial matter, paragraphs [1] and [3] go along 

with one another, such that claims subject to the six-year 

statute of limitations are also subject to the three-year tolling provision. Likewise, only claims that are governed by 

paragraph [1] are also governed by paragraph [3]. Paragraphs [1] and [3] are directly related to one another. Although in isolation paragraph [3] may appear as if it applies 

broadly to all claims filed in the Court of Federal Claims, 

in context it is clear that paragraph [3] only applies to 

claims with statutes of limitations established by paragraph [1]. These conclusions about the relationship between paragraphs [1] and [3] are confirmed by the 

statutory history leading up to the present version of 

§ 2501. 

Initially, the tolling provision appeared in § 1069 of the 

Revised Statutes of the United States as a proviso that was 

plainly linked to the six-year statute of limitations set out 

in that same section. See United States v. Greathouse, 166 

U.S. 601, 602-06 (1897) (discussing former statute); see also 

United States v. Morrow, 266 U.S. 531, 534-35 (1925) (“The 

general office of a proviso is to except something from the 

enacting clause, or to qualify and restrain its generality 

and prevent misinterpretation. Its grammatical and logical scope is confined to the subject-matter of the principal 

clause. And although sometimes used to introduce independent legislation, the presumption is that, in accordance 

with its primary purpose, it refers only to the provision to 

which it is attached.”) (internal citations omitted). In 1911, 

the tolling provision was explicitly incorporated into the 

Tucker Act as a proviso to that statute’s six-year statute of 

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W. J. v. HHS 11

limitations. See Judicial Code of 1911, Pub. L. No. 61-475, 

§ 156, 36 Stat. 1087, 1139 (1911). In 1926, when the statute of limitations was codified in the first version of the 

U.S. Code as 28 U.S.C. § 262 (1926 ed.), the proviso language was omitted. Finally, in 1948, the current version of 

28 U.S.C. § 2501 incorporated the phrase “person under legal disability” but, consistent with the U.S. Code in 1926 

(and the 1940 ed.), left out the proviso language. Pub. L. 

No. 80-773, § 2501, 62 Stat. 869, 976 (1948).

Notwithstanding the change in the codified language, 

we see no reason why the tolling provision in § 2501 should 

not still be read as a proviso to the six-year statute of limitations. The change in language between the Statute at 

Large and the U.S. Code in 1926, and thereafter, appears 

to be a purely editorial one. Furthermore, the parties have 

pointed to no authority nor any persuasive argument for 

reading the tolling provision of § 2501 independent from 

the six-year statute of limitations provision. Thus, the paragraph [3] tolling provision is inapplicable to any petition 

not governed by the paragraph [1] six-year statute of limitations.

Next, we conclude that § 2501’s six-year statute of limitations does not apply to Appellant’s Vaccine Act claim. In 

the Vaccine Act, Congress established a specific statute of 

limitations for claims based on vaccines (including MMR) 

set forth in the Vaccine Injury Table: 36 months after “the 

occurrence of the first symptom or manifestation of onset 

or of the significant aggravation of such injury.” 42 U.S.C. 

§ 300aa-16(a)(2). The Vaccine Act contains no tolling provision. As we have previously explained, § 2501’s general 

provisions may be superseded by specific statutes setting 

out different periods for particular types of claims. See, 

e.g., Adams v. United States, 350 F.3d 1216, 1229 (Fed. Cir. 

2003) (holding that two- or three-year statute of limitations 

under Fair Labor Standards Act (“FLSA”) governs FLSA 

violation claims brought in Court of Federal Claims); InterCoastal Xpress, Inc. v. United States, 296 F.3d 1357, 1367-

68 (Fed. Cir. 2002) (holding that three-year filing period 

under Interstate Commerce Act (“ICA”), rather than sixCase: 22-2119 Document: 77 Page: 11 Filed: 02/21/2024
12 W. J. v. HHS

year period of § 2501, governs all actions brought under 

ICA); Pathman Constr. Co. v. United States, 817 F.2d 1573, 

1580 (Fed. Cir. 1987) (“Once a contractor elects to proceed 

under the Disputes Act, the six-year statute of limitations 

in 28 U.S.C. § 2501 is not applicable.”). As specific statutes 

typically control over more general ones, see, e.g., First Nationwide Bank v. United States, 431 F.3d 1342, 1348 (Fed. 

Cir. 2005), it follows that the specific limitations provision 

in the Vaccine Act governs Vaccine Act claims and the general provision of § 2501 does not.

Since § 2501’s six-year statute of limitations does not 

apply to Vaccine Act claims, the tolling provision of § 2501 

is equally inapplicable. To be timely, then, Parents must 

have filed the petition no later than 36 months after the 

“occurrence of the first symptom or manifestation of onset 

or of the significant aggravation of” W.J.’s MMR vaccinerelated injuries. 

IV

We now turn to the principal arguments raised by Parents and Amicus. We begin with equitable tolling, which 

is the focus of this appeal, and then address additional issues pressed by Parents.

A 

Parents and Amicus argue that the statute of limitations should have been equitably tolled, which would result 

in their petition being treated as having been timely filed. 

As we have already noted, Section 16(a)(2) of the Vaccine 

Act governs claims resulting from vaccines administered 

after October 1, 1988, and reads: 

if a vaccine-related injury occurred as a result of 

the administration of such vaccine, no petition may 

be filed for compensation under the Program for 

such injury after the expiration of 36 months after 

the date of the occurrence of the first symptom or 

manifestation of onset or of the significant aggravation of such injury.

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W. J. v. HHS 13

42 U.S.C. § 300aa-16(a)(2). This statute of limitations begins to run from “the first symptom or manifestation of an 

alleged vaccine injury,” regardless of whether or not that 

symptom is sufficient for diagnosis. See Carson v. Sec’y of 

Health & Human Servs., 727 F.3d 1365, 1369 (Fed. Cir. 

2013).

Parents and Amicus assert that the petition filed on behalf of W.J. was timely because of equitable tolling. Equitable tolling pauses or “tolls” a statutory limitations period, 

serving to extend otherwise explicit time limitations on filing set by Congress. See Arellano v. McDonough, 598 U.S. 

1, 6 (2023). Such tolling is generally available “when a litigant has pursued his rights diligently but some extraordinary circumstance prevents him from bringing a timely 

action.” Lozano v. Alvarez, 572 U.S. 1, 10 (2014). We have 

previously found that a court may equitably toll the Vaccine Act’s limitations period, Cloer v. Sec’y of Health & Human Servs., 654 F.3d 1322, 1344 (Fed. Cir. 2011) (en banc), 

and that mental incapacity may be a basis for equitable 

tolling, K.G. v. Sec’y of Health & Human Servs., 951 F.3d 

1374, 1381 (Fed. Cir. 2020). The doctrine of fraudulent concealment may also toll a statute of limitations. See, e.g., 

Simmons Oil Corp. v. Tesoro Petroleum Corp., 86 F.3d 

1138, 1142 (Fed. Cir. 1996).

Parents and Amicus assert that equitable tolling is 

warranted here based on (1) W.J.’s mental incapacity and 

inability to communicate, creating an extraordinary circumstance, (2) W.J.’s minority status, and (3) the government’s fraudulent concealment of a connection between the 

vaccine and autism. We address each argument in turn.

1 

In support of their contention that W.J.’s mental incapacitation warrants equitable tolling, Parents and Amicus 

point to K.G. v. Sec’y of Health & Human Servs., 951 F.3d 

at 1382, in which we held that equitable tolling may be 

available to mentally incapacitated individuals under the 

Vaccine Act even if they had an appointed legal guardian 

during their incapacitation. There, K.G., an adult petitioner, had suffered from alcoholism, anxiety, depression, 

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14 W. J. v. HHS

and memory loss so severe that it ultimately resulted in a 

stay at an in-patient facility for three years. See id. at 

1377. K.G. was also found to have had such a strained and 

incommunicative relationship with her sister, her then-acting legal guardian and conservator, that the sister ultimately withdrew from those roles. K.G.’s cognitive 

function ultimately improved and her conservatorship was 

terminated, after which she filed a petition for compensation under the Vaccine Act. The Court of Federal Claims 

initially affirmed the special master’s denial of equitable 

tolling on the basis that the petitioner, K.G., had an acting 

legal guardian at the time of her mental incapacitation. On 

appeal, we declined to adopt a “per se rule” that the presence of a legal guardian alone foreclosed equitable tolling. 

Id. at 1381-82. We then remanded for the special master 

to determine whether equitable tolling was appropriate in 

light of “all relevant facts and circumstances.” Id. In doing 

so, we explained that the special master would have to “analyze[] the facts to determine whether [the] legal guardianship alleviated the extraordinary circumstance” of the 

petitioner’s mental incapacity. Id. at 1381. 

K.G. further establishes that, in considering whether 

equitable tolling may be appropriate, the fact that “a mentally incapacitated individual has a legal representative is 

just one of many factors that may further inform the diligence inquiry.” Id. at 1382. We also held: 

[t]he significance of a legal guardian may depend 

on a number of factors, including: the nature and 

sophistication of the guardian (parent, lawyer, 

family member, or third-party), the timing of the 

institution of the guardianship (before or after the 

vaccination, for example), the nature of the guardian’s rights and obligations under state law, the extent to which the claimant’s mental incapacity 

interferes with her relationship and communication with her guardian, the quality and nature of 

the guardian’s relationship with the claimant, and 

any conflicts of interest that would inhibit the 

guardian from bringing a Vaccine Act claim on the 

claimant’s behalf.

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W. J. v. HHS 15

Id.

Parents and Amicus contend that, here, the special 

master applied a per se rule, directly contrary to our holding in K.G. We disagree. Instead, in her decision, the special master compared W.J.’s circumstances to those 

presented in K.G., correctly distinguishing them:

Unlike K.G., W.J. was an infant at the time of his 

vaccination, and the petitioners, W.J.’s parents, 

were capable of filing a claim on his behalf. W.J.’s 

parents have not filed any evidence to suggest that 

they were incapacitated in any way during any 

time frame relevant to their petition. While the 

Court in K.G. confirmed an equitable tolling right

for incapacitated individuals, nothing in the decision negated a legal representative’s rights and responsibilities under the Vaccine Act. . . . 

[P]etitioners had the right and responsibility to 

bring a timely claim on W.J.’s behalf. . . . 

W.J.’s “mental incapacity” does not serve as an “extraordinary circumstance.” Petitioners, as W.J.’s 

legal representatives [and] his parents, had the 

ability to file a petition 36 months from the onset 

of the earliest symptom or manifestation of W.J.’s 

injury. The same is true for all petitions brought 

on behalf of all minors. Parents or other legal representatives must file the petition on behalf of a minor within the applicable statute of limitations.

App’x 38.

This analysis amounts to more than application of the 

per se rule we declined to adopt in K.G. The special master 

did not simply invoke the presence of legal guardians and, 

as a consequence, decline to apply equitable tolling. Instead, in compliance with our instruction in K.G., the special master considered whether W.J.’s mental incapacity

constituted an extraordinary circumstance notwithstanding Parents’ guardianship and found, based on a lack of evidence, that it did not. We find the special master’s 

extraordinary circumstance findings, and the subsequent 

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16 W. J. v. HHS

affirmance by the Court of Federal Claims, were not an 

abuse of discretion.

Furthermore, we agree that the facts here do not support equitable tolling. R.J. and A.J. are the parents and 

legal guardians of W.J. and have been throughout W.J.’s 

life, including when he received the MMR vaccine. As 

W.J.’s parents and legal guardians, Parents were expressly 

authorized to bring a claim on W.J.’s behalf. See 42 U.S.C. 

§ 300aa-11(b)(1)(A) (permitting legal representatives of minors or disabled individuals to file petitions on their behalf); 42 U.S.C. § 300aa-33(2) (defining “legal 

representative” to include “a parent or an individual who 

qualifies as a legal guardian under State law”). Unlike in 

K.G., here, Parents have not shown any reason why they, 

as legal guardians, could not have filed the petition within 

the statutory timeframe, despite W.J.’s mental incapacitation. Indeed, Parents made other medical decisions on behalf of W.J. throughout this exact timeframe. See, e.g.,

App’x 180-84. There is no suggestion that Parents have a 

strained relationship with their son or that there are any 

conflicts of interest that would have dissuaded them from 

filing a petition earlier. Although, as we held in K.G., mental incapacity of an individual with a legal guardian may 

still merit equitable tolling, it does not always.

Therefore, we agree with the Court of Federal Claims 

and the special master that Parents failed to plead facts 

establishing that W.J.’s mental incapacitation constituted 

extraordinary circumstances warranting equitable tolling.

2 

Amicus argues that minority tolling should apply, contending that the statutory purposes underlying the Vaccine 

Act demonstrate Congress’ intent for a child’s minority status to qualify as a per se extraordinary circumstance warranting tolling. We are unpersuaded. 

The plain language of the Vaccine Act does not include, 

or even suggest, minority tolling, and Amicus does not contend otherwise. Instead, Amicus points to legislative history to demonstrate the pro-child and pro-claimant nature 

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W. J. v. HHS 17

of the Act. But the passages on which Amicus relies only 

support Congress’ general intent to compensate injured 

children or its consideration of staying co-pending state law 

actions during the pendency of Vaccine Act claims. See 

generally H.R. Rep. No. 99-908 (1986). Even assuming legislative history could make up for a lack of statutory text 

(a dubious proposition we need not reach), Amicus points 

to no statements by any individual legislator specifically 

contemplating minority tolling. Given that Congress created the Vaccine Act to “protect [the Nation’s] children,” 

H.R. Rep No. 99-908, at 4 (1986) (emphasis added), and set 

forth an explicit statute of limitations for filing petitions, 

we conclude that the lack of any statutory provision providing for minority tolling is conclusive proof that Congress 

did not intend to provide for such tolling.

3 

Fraudulent concealment may toll a statute of limitations where, “assuming due diligence on the part of the 

plaintiff . . . the misconduct in question has been concealed, 

or is of such character as to conceal itself.” Simmons, 86 

F.3d at 1142 (internal quotation marks omitted). “[A] mere 

failure to come forward with facts that would provide the 

plaintiff with a basis for suit does not constitute fraudulent 

concealment.” Id. at 1143. 

Parents argue they have shown that the government 

“fostered and promoted the scientific finding” that there is 

no link between the MMR vaccine and autism. App’x 19 

(internal quotation marks omitted). In this way, they contend, the government concealed the evidence Parents 

needed to file their petition in a more timely manner. Even 

reading Parents’ petition in the light most favorable to 

W.J., it defeats their contention of fraudulent concealment. 

By Parents’ own account, their petition includes “hard evidence of a link between vaccines and autism,” including 

reference to over 5,100 cases filed by parents seeking compensation for their child’s autism on the basis of a vaccinerelated injury. App’x 19, 41; see also App’x 39, 58, 102-04. 

Hearings for these cases took place between 2007 and 2009, 

confirming that evidence of the type Parents contend was 

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18 W. J. v. HHS

fraudulently concealed by the government was available in 

the timeframe when W.J.’s petition would have been 

timely. Parents have failed to adequately allege that their 

exercise of reasonable diligence could not have revealed to 

them the basis for their claim at that time.

Parents have additionally failed to plead any facts to 

suggest intentional concealment by the government; indeed, to the contrary, they have disavowed any allegation 

that the government engaged in intentional fraud. App’x 

59 (“[Appellants] do not explicitly claim that these denials 

of any connection between vaccines and autism by the federal government and the vaccine manufacturers are intentionally fraudulent.”). But equitable tolling is only 

warranted when the “fraud has been concealed” and the 

party alleging concealment has exercised due diligence “in 

coming to the knowledge of the fraud.” Bailey v. Glover, 88 

U.S. 342, 349 (1874); see also Simmons, 86 F.3d at 1142. 

For these reasons, fraudulent concealment cannot 

serve as a basis for equitable tolling in this case.

B 

Parents assert additional errors by the special master, 

some of which we discuss below. None has merit. 

1 

Parents argue that Congress declined to authorize special masters to entertain or rule upon Rule 12(b)(6) motions 

to dismiss. They point to Section 300aa-12(d)(2)(C) of the 

Vaccine Act, which specifically entrusts special masters 

with the power to rule on summary judgment motions but 

does not refer to motions to dismiss. However, the language of the statute is merely exemplary, pointing to procedural rules that may be adopted “includ[ing] the 

opportunity for summary judgment.” 42 U.S.C. § 300aa12(d)(2)(C) (emphasis added). The Vaccine Rules reiterate 

this inclusiveness, explaining that “[t]he special master 

may decide a case on the basis of written submissions without conducting an evidentiary hearing,” and that “[s]ubmissions may include a motion for summary judgment.” 

Vaccine Rule 8(d) (emphasis added). Nothing in this 

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W. J. v. HHS 19

language, nor any other provision of the Vaccine Act, excludes 12(b)(6) motions to dismiss.

Additionally, “[t]he statute and the Vaccine Rules give 

the special masters broad authority in conducting proceedings under the Act.” Simanski v. Sec’y of Health & Human 

Servs., 671 F.3d 1368, 1371 (Fed. Cir. 2012). This broad 

authority is embodied in, for example, Vaccine Rule 1(b), 

providing that “[i]n any matter not specifically addressed 

by the Vaccine Rules, the special master may regulate applicable practice, consistent with these rules and with the 

purpose of the Vaccine Act, to decide the case promptly and 

efficiently.” Moreover, Vaccine Rule 1(c) provides that the 

RCFC, which include RCFC 12(b)(6), apply to the extent 

that they are consistent with the Vaccine Rules. That 

these authorities all contemplate and certainly do not prohibit motion to dismiss practice is confirmed by the long 

experience of special masters entertaining such motions in 

countless proceedings. 

We therefore find that special masters have jurisdiction 

to rule on motions to dismiss.

2 

The doctrine of separation of powers did not bar the 

special master from dismissing W.J.’s claims. As an initial 

matter, we do not agree with Parents that the special master raised the statute of limitations issue sua sponte. Instead, as the special master observed during the initial 

status conference, the possible untimeliness of W.J.’s 

claims is evident on the face of the petition. See App’x 68. 

The petition alleges that W.J. received his first MMR vaccine in 2005. As the petition was not filed until 2021, 17 

years later, the special master – who, after all, solely handles cases arising under the Vaccine Act – noticed that the 

question of whether W.J.’s claims were timely was an obvious concern.

In any event, special masters, just like judges, have 

wide latitude in managing their docket. See Landis v. N. 

Am. Co., 299 U.S. 248, 254-55 (1936) (“[E]very court [has 

inherent power] to control the disposition of the causes on 

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20 W. J. v. HHS

its docket with economy of time and effort for itself, for 

counsel, and for litigants.”). This broad discretion is explicitly outlined in the statute and the Vaccine Rules. See, e.g., 

42 U.S.C. § 300aa-12(d)(2)(A) (stating that Vaccine Rules 

shall “provide for a less-adversarial, expeditious, and informal proceeding for the resolution of petitions”); Vaccine 

Rule 3(b) (“The special master is responsible for . . . conducting all proceedings . . . [and] endeavoring to make the 

proceedings expeditious, flexible, and less adversarial.”). 

Special masters, like judges, can prioritize potentially casedispositive issues at the start of a case, in an exercise of 

their discretion. See, e.g., Vivid Tech., Inc. v. Am. Sci. & 

Eng’g, Inc., 200 F.3d 795, 803-04 (Fed. Cir. 1999) (“When a 

particular issue may be dispositive, the court may stay discovery concerning other issues until the critical issue is resolved.”).

Here, the special master acted well within her discretion in identifying a concern regarding the statute of limitations at the outset of the case. That the government 

happened to be the party filing the motion to dismiss, 

which they very likely would have filed regardless of the 

special master’s inquiry and which Parents had the opportunity to oppose, does not convert the special master’s routine case management action into a separation-of-powers 

issue.

3 

Parents next argue that the trial court and special master erred in dismissing their fraudulent concealment claim 

because they misapplied the Iqbal/Twombly pleading 

standard and considered material outside the pleadings. 

We disagree. Rather, the court and special master merely, 

and appropriately, found that the facts pleaded in the petition did not provide the support necessary to adequately 

allege fraudulent concealment. The court and special master properly evaluated Parents’ petition, including by assuming all pleaded facts to be true, and reached the 

conclusion that the petition did not state a fraudulent concealment claim on which relief could be granted, a conclusion we have reviewed and now uphold. 

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W. J. v. HHS 21

We therefore affirm the Court of Federal Claims’ conclusion that equitable tolling was not appropriate and, 

thus, that Appellants’ petition was not timely filed under 

42 U.S.C. § 300aa-16(a)(2).

V 

We have considered Parents’ remaining arguments but 

find them unpersuasive. For the foregoing reasons, we affirm the judgment of the Court of Federal Claims.

AFFIRMED

COSTS

No costs.

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