Case: 19-1690   Document: 35     Page: 1   Filed: 03/06/2020




   United States Court of Appeals
       for the Federal Circuit
                 ______________________

                          K. G.,
                   Petitioner-Appellant

                            v.

       SECRETARY OF HEALTH AND HUMAN
                   SERVICES,
               Respondent-Appellee
              ______________________

                       2019-1690
                 ______________________

     Appeal from the United States Court of Federal Claims
 in No. 1:18-vv-00120-MCW, Senior Judge Mary Ellen Cos-
 ter Williams.
                  ______________________

                 Decided: March 6, 2020
                 ______________________

    ZACHARY J. HERMSEN, Whitfield & Eddy, PLC, Des
 Moines, IA, argued for petitioner-appellant.

     VORIS EDWARD JOHNSON, JR., Vaccine/Torts Branch,
 Civil Division, United States Department of Justice,
 Washington, DC, argued for respondent-appellee. Also
 represented by JOSEPH H. HUNT, C. SALVATORE D'ALESSIO,
 HEATHER LYNN PEARLMAN, CATHARINE E. REEVES.
                  ______________________
Case: 19-1690    Document: 35     Page: 2    Filed: 03/06/2020




 2                                                K.G. v. HHS




     Before DYK, O’MALLEY, and STOLL, Circuit Judges.
 O’MALLEY, Circuit Judge.
     In Fall 2011, K.G. received a seasonal influenza vac-
 cination in advance of a total knee replacement surgery.
 Over the next several months, she experienced increas-
 ingly severe nerve pain in her hands, arms, feet, and legs.
 During the same period, K.G. succumbed to alcoholism,
 spent months in the hospital, and developed amnesia. In
 Spring 2014, an Iowa state court declared K.G. incapable
 of caring for herself and, against K.G.’s will, appointed
 K.G.’s sister as her guardian.
     K.G. made a slow recovery and regained her mental
 faculties by May 2016. Shortly thereafter, she retained an
 attorney who filed a claim on her behalf pursuant to the
 National Childhood Vaccine Injury Act of 1986 (“Vaccine
 Act”), 42 U.S.C. § 300aa-1 et seq. Without reaching the
 merits of K.G.’s claim, the Special Master held that equita-
 ble tolling was not available during the period that K.G.’s
 sister was appointed as K.G.’s guardian and dismissed
 K.G.’s claim as not timely filed within the three-year stat-
 ute of limitations. See K.G. v. Sec’y of Health & Human
 Servs., No. 18-120V, 2018 WL 5795834 (Fed. Cl. Aug. 17,
 2018). The Court of Federal Claims (“Claims Court”) af-
 firmed. K.G. v. Sec’y of Health & Human Servs., 142 Fed.
 Cl. 240 (2019).
     Arguing that she should not be barred from the benefit
 of equitable tolling merely because she was involuntarily
 placed under guardianship, K.G. appeals. For the reasons
 stated below, we hold that equitable tolling is available in
 Vaccine Act cases and that the appointment of a legal
 guardian is only one factor a court should consider when
 deciding whether equitable tolling is appropriate in a par-
 ticular case. We therefore vacate and remand.
Case: 19-1690    Document: 35     Page: 3   Filed: 03/06/2020




 K.G. v. HHS                                              3



                              I
     K.G. was forty-eight years old when she received an in-
 fluenza vaccination in October 2011, as a precautionary
 measure in advance of a bilateral total knee replacement.
 She was a licensed accountant and the sole income-earner
 for her family of four.
     After the knee replacement surgery, which occurred in
 November 2011, K.G. began noticing numbness in her right
 leg. In February 2012, K.G.’s doctor proposed testing to
 determine if she had neuropathy or nerve injury. By May
 2012, K.G. was experiencing numbness, tingling, and burn-
 ing in her legs and feet, as well as abnormal sensation in
 her fingers. These symptoms worsened over the next sev-
 eral months. Concurrently, K.G.’s mental health began to
 decline. She began taking pain medication and drinking
 heavily.
     Beginning in November 2012, K.G. was hospitalized for
 two months after a fall. She was released to her home in
 January 2013. Her discharge papers indicated a diagnosis
 of Chronic Inflammatory Demyelinating Polyneuropathy
 (“CIDP”).
     K.G. remained at home for about five months. During
 that time, she would regularly isolate herself from family
 and drink substantial amounts of alcohol. In May 2013,
 K.G.’s son found K.G. unresponsive at her home. She was
 taken to the hospital for a second time. On admission,
 K.G.’s memory and ability to follow commands were highly
 impaired. Over the next month, K.G remained confused
 about where she was—at various points thinking she was
 on a cruise, in Las Vegas, or at home. K.G. was discharged
 to an in-patient facility in June 2013, where she remained
 for over three years.
Case: 19-1690        Document: 35   Page: 4   Filed: 03/06/2020




 4                                                  K.G. v. HHS




     In October 2013, a psychiatrist diagnosed K.G. with
 Korsakoff’s amnesia, 1 anxiety, and depression. Given
 K.G.’s lack of capacity, K.G.’s family eventually decided the
 best course was to place K.G. under guardianship and con-
 servatorship. An Iowa district court appointed K.G.’s sister
 as K.G.’s guardian and conservator in March 2014.
     During the course of the guardianship, K.G. blamed
 her sister for many of her problems and the sisters’ rela-
 tionship deteriorated. At various points, K.G. told her
 therapist that she felt like a “prisoner” because her sister
 would never let her leave the nursing facility, that her sis-
 ter was alienating K.G. from her children, and that her sis-
 ter was responsible for all of her issues. J.A. at 338, 340.
 In a sworn statement, K.G’s sister explained the difficulty
 of the situation:
     My appointment as guardian and conservator
     strained my relationship with K.G. K.G. believed
     that I was solely responsible for K.G. living at a
     nursing home, among other things. We did our best
     to make K.G.’s life tolerable. . . . However, K.G. was
     still upset with me, and she still refuses to talk to
     me today. This strain on our relationship is why I
     eventually stopped acting as K.G.’s guardian and
     conservator. It became too much for me to person-
     ally handle.
 Id. at 385, ¶ 24.
     In May 2016, K.G. began to show cognitive improve-
 ment. The Iowa court terminated K.G.’s guardianship and
 conservatorship in August 2016. K.G. thereafter returned
 home to live with her husband.




     1    A condition caused by thiamine deficiency that can
 result from alcoholism, among other things.
Case: 19-1690    Document: 35      Page: 5    Filed: 03/06/2020




 K.G. v. HHS                                                5



     K.G. consulted with counsel in late 2017 who filed a
 Petition for Vaccine Compensation in January 2018. She
 alleged that her October 2011 flu shot caused her to de-
 velop neuropathy.
      In March 2018, the Special Master questioned the
 timeliness of the Petition and allowed the parties to brief
 the issue of equitable tolling. The Vaccine Act’s statute of
 limitations is three years. 42 U.S.C. § 300aa-16(a)(2). K.G.
 argued that she was mentally incapacitated from Novem-
 ber 9, 2012, the date her first post-surgery hospital stay
 began, to May 10, 2016, when she began showing signs of
 cognitive improvement. According to K.G., this period of
 incapacity should not count in calculating whether her
 claim is timely filed. The Secretary of Health and Human
 Services (“the government”) responded with three counter-
 arguments: (1) equitable tolling based on mental incapac-
 ity is not available under the Vaccine Act at all; (2) K.G.’s
 proposed period was too long and a reasonable period, con-
 sidering only time when K.G. was not under guardianship,
 would render K.G.’s claim untimely; and (3) tolling was im-
 proper because late-filing was not a direct result of K.G.’s
 mental incapacity.
     The Special Master dismissed the case as untimely on
 August 17, 2018. K.G., 2018 WL 5795834 at *12. He de-
 clined to resolve or comment on whether it was appropriate
 to equitably toll in the Vaccine Act context based on mental
 incapacity. Instead, he found that K.G.’s claim was un-
 timely even assuming equitable tolling was available. Id.
 at *8.
     The Special Master found that K.G. suffered from
 CIDP. Id. He further found that the onset of K.G.’s condi-
 tion, the date on which the statute of limitations began to
 run, was in mid-February 2012 when her doctors first sug-
 gested testing for neuropathy. Id. He then rejected K.G.’s
 argument that equitable tolling, if available, began in No-
 vember 2012, when K.G. was first admitted to the hospital.
Case: 19-1690     Document: 35      Page: 6     Filed: 03/06/2020




 6                                                    K.G. v. HHS




 Id. at *9. The Special Master found that K.G.’s second hos-
 pital trip, which began in May 2013, marked the beginning
 of her mental incapacity and the start of the tolling period.
 Id. He reasoned that the record evidence established only
 that K.G.’s mental health was a concern in November 2012,
 not that she was fully incapacitated. Id.
     The Special Master next determined that the appoint-
 ment of K.G.’s sister as guardian in March 2014 restarted
 the clock. Id. He reasoned that K.G.’s sister was empow-
 ered to act on K.G.’s behalf under Iowa law. Id. With the
 clock restarting in March 2014, the Vaccine Act’s three-
 year statute of limitations would have expired in December
 2015. Id. at *10. Since the claim was not filed until Janu-
 ary 2018, the Special Master found it was untimely. Id.
     The Special Master further found that broad equitable
 considerations did not favor tolling in K.G.’s case. Id. at
 *10–11. He found, “Petitioner and/or her legal representa-
 tive did not act diligently in exercising her legal rights.” Id.
 at *10. He then explained that K.G. had capacity to bring
 a claim for over a year prior to the onset of her mental dis-
 ability and for over a year after the mental disability re-
 solved. Id. He found that K.G.’s inaction during those
 periods did not constitute diligence and weighed against
 equitable tolling. Id.
     K.G. appealed the Special Master’s decision to the
 Claims Court. On March 6, 2019, the Claims Court sus-
 tained the Special Master’s decision. K.G., 142 Fed. Cl. at
 246.
     The Claims Court explained that the Vaccine Act
 grants a legal representative the statutory right to bring a
 claim on behalf of a disabled person who suffered a vaccine-
 related injury.        Id. at 244 (citing 42 U.S.C.
 § 300aa-11(b)(1)(A)). Thus, the Claims Court reasoned
 that, under the Act, a disabled person’s legal representa-
 tive must file a claim within the 36-month limitations pe-
 riod. Id. at 245–46. Given this scheme, the Claims Court
Case: 19-1690    Document: 35      Page: 7    Filed: 03/06/2020




 K.G. v. HHS                                                7



 concluded that the appointment of K.G.’s sister as a legal
 guardian alleviated any “extraordinary circumstance” that
 would warrant equitable tolling. Id.
      Finally, the Claims Court rejected K.G.’s argument
 that her deteriorated relationship with her sister pre-
 sented a separate extraordinary circumstance warranting
 tolling. Id. at 246. It reasoned that the Vaccine Act antic-
 ipates that many injured claimants will be unable to assist
 with their claims, as most claimants are children. Id.
    K.G. appeals. We have jurisdiction pursuant to 42
 U.S.C. § 300aa-12(f).
                              II
      In Vaccine Act cases, we review an appeal from the
 Claims Court de novo, applying the same standard of re-
 view that the Claims Court applied to the special master’s
 decision. Moberly v. Sec’y of Health & Human Servs., 592
 F.3d 1315, 1321 (Fed. Cir. 2010) (citing Lampe v. Sec’y of
 Health & Human Servs., 219 F.3d 1357, 1360 (Fed. Cir.
 2000)). We owe no deference to the trial court or the special
 master on questions of law. With respect to factual find-
 ings, however, we will uphold the special master’s findings
 of fact unless they are clearly erroneous. Althen v. Sec’y of
 Health & Human Servs., 418 F.3d 1274, 1278 (Fed. Cir.
 2005). Therefore, “although we are reviewing as a matter
 of law the decision of the Court of Federal Claims under a
 non-deferential standard, we are in effect reviewing the de-
 cision of the special master under the deferential [arbi-
 trary] and capricious standard on factual issues.”
 Broekelschen v. Sec’y of Health & Human Servs., 618 F.3d
 1339, 1345 (Fed. Cir. 2010) (quoting Lampe, 219 F.3d at
 1369)).
                              A
     A claimant must prove two elements to establish that
 equitable tolling of a statute of limitations is appropriate:
 (1) she pursued her rights diligently, and (2) an
Case: 19-1690     Document: 35     Page: 8    Filed: 03/06/2020




 8                                                  K.G. v. HHS




 extraordinary circumstance prevented her from timely fil-
 ing the claim. Menominee Indian Tribe v. United States,
 136 S. Ct. 750, 755 (2016). A claimant need only establish
 diligence during the period of extraordinary circumstances
 to meet this test. Checo v. Shinseki, 748 F.3d 1373, 1380
 (Fed. Cir. 2014).
     The government argues, as an initial matter, that, on
 appeal, K.G. fails to challenge the Special Master’s factual
 finding of inadequate diligence. Appellee’s Br. 31–32.
 Thus, the government argues, any challenge to that factual
 finding is waived. Id. K.G. responds that her entire appeal
 is a challenge to the Special Master’s finding that K.G.’s
 legal representative did not exercise diligence. Appellant’s
 Reply Br. 16. Moreover, K.G. argues that the lengthy back-
 ground section of her brief clearly outlines the many hard-
 ships that prevented her from bringing a claim earlier. Id.
 at 16–17.
     We agree with K.G. that she preserved the issue.
 K.G.’s entire opening brief addresses why equitable tolling
 should have been available in her case because the circum-
 stances during her mental incapacity prevented her and
 her guardian from bringing a claim. In his diligence anal-
 ysis, the Special Master placed special weight on the period
 before K.G. lost mental capacity and the period after K.G.
 regained capacity. K.G., 2018 WL 5795834, at *10. But we
 have held that the only relevant period for determining the
 availability of equitable tolling is the extraordinary circum-
 stances period, here, K.G.’s period of mental incapacity.
 Checo, 748 F.3d at 1380. K.G. was not required to argue
 the legally irrelevant question of whether she personally
 was diligent while she was mentally competent. And she
 clearly preserved her argument that her legal representa-
 tive exercised reasonable diligence under the circum-
 stances.
Case: 19-1690     Document: 35     Page: 9    Filed: 03/06/2020




 K.G. v. HHS                                                 9



                               B
     The government next argues that equitable tolling for
 mental incompetence is unavailable in the context of the
 Vaccine Act. The Vaccine Act’s statute of limitations pro-
 vides, in relevant part, “no petition may be filed for com-
 pensation under the Program for [a vaccine related] injury
 after the expiration of 36 months after the date of the oc-
 currence of the first symptom or manifestation of onset . . .
 of such injury.” 42 U.S.C. § 300aa-16(a)(2). We have held
 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). Such tolling is avail-
 able, for example, when a claimant is a victim of fraud or
 duress. Id. Lack of knowledge of an actionable claim is
 not, however, a basis for equitable tolling. Id. at 1344–45.
      Although we have not previously addressed whether
 equitable tolling based on mental incapacity is available
 under the Vaccine Act, we have found mental incapacity is
 a sufficient basis for equitable tolling in the veterans’ ben-
 efits context. Barrett v. Principi, 363 F.3d 1316, 1318 (Fed.
 Cir. 2004). There, we “join[ed] the majority of our sister
 circuits in concluding that mental illness can justify equi-
 table tolling.” Id. We also noted that the context of the
 veterans’ benefit system supported allowing equitable toll-
 ing based on mental illness. Id. at 1320. Thus, consistent
 with other circuits, we adopted “generalized standards” for
 applying equitable tolling:
     [T]o obtain the benefit of equitable tolling, a vet-
     eran must show that the failure to file was the di-
     rect result of a mental illness that rendered him
     incapable of “rational thought or deliberate deci-
     sion making,” or “incapable of handling [his] own
     affairs or unable to function [in] society.” A medi-
     cal diagnosis alone or vague assertions of mental
     problems will not suffice. And, if he is represented
     by counsel during the relevant period, the veteran
Case: 19-1690    Document: 35       Page: 10   Filed: 03/06/2020




 10                                                 K.G. v. HHS




      must make an additional showing that the mental
      illness impaired the attorney-client relationship.
 Id. at 1321 (citations omitted).
      Barrett’s holding was not limited to the veterans’ ben-
 efits context. Instead, Barrett endorsed the position that
 mental incapacity is a basis for equitable tolling in any con-
 text—a position with which the majority of circuits agree.
 Id. at 1318. Moreover, in granting the veteran the re-
 quested relief in Barrett, we identified several other factors
 that provided additional support for equitable tolling in a
 case involving mental incapacity. Specifically, we found
 compelling the pro-claimant nature of the scheme and the
 fact that a veteran’s mental incapacity is often related to
 his service. Id. at 1320. Similar factors are present here.
 The Vaccine Act is a pro-claimant regime meant to allow
 injured individuals a fair and fast path to compensation,
 see Cloer, 654 F.3d at 1325, and Vaccine Act claimants’
 mental incapacity is often related to their vaccinations.
 Thus, we begin our analysis of the availability of equitable
 tolling based on mental incapacity in the Vaccine Act con-
 text with a rebuttable presumption that it is available. See
 Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95–96 (1990)
 (holding that there is a rebuttable presumption that equi-
 table tolling is available in suits against the government).
      The government argues that equitable tolling based on
 mental incapacity is not available to Vaccine Act claimants
 because the Vaccine Act provides an accommodation for
 such a situation. Appellee’s Br. 12–26. The government
 points to Section 11(b)(1)(A), the portion of the Vaccine Act
 describing who has standing to bring a claim, which per-
 mits a legal representative of a disabled person to file a pe-
 tition for compensation. 42 U.S.C. § 300aa-11(b)(1)(A). A
 legal representative is “a parent or an individual who qual-
 ifies as a legal guardian under State law.” 42 U.S.C.
 § 300aa-33(2). The government argues that the Vaccine
 Act’s express inclusion of legal representatives among the
Case: 19-1690    Document: 35     Page: 11    Filed: 03/06/2020




 K.G. v. HHS                                               11



 individuals with a right to bring a claim indicates that Con-
 gress intentionally did not account for mentally incompe-
 tent individuals in the limitations period. Appellee’s Br.
 14–15. The government further argues that Congress’s in-
 tent is evident because it did not accommodate individuals
 with brain injuries, which are included in the Vaccine Act
 Injury Table, 42 U.S.C. § 300aa-14, and often result in se-
 rious cognitive impairment, in the statute of limitations.
 Id. at 15–16.
      Congress’s failure to accommodate mentally incompe-
 tent individuals in the statute of limitations does not evi-
 dence an intent sufficient to overcome the rebuttable
 presumption that tolling is available. Equitable tolling ex-
 ists in instances where Congress fails to expressly accom-
 modate in the statute of limitations those individuals who
 equitably deserve additional time to file. Ordinarily unre-
 markable provisions of the Vaccine Act, such as the section
 specifying who may bring a claim and the Vaccine Injury
 Table, do not negate the presumption that equitable tolling
 is available for mentally incompetent individuals. Such
 provisions do nothing to tell the courts that Congress con-
 sidered the specific issue of equitable tolling under these
 circumstances, much less what Congress’s view was on the
 issue. Thus, we hold that equitable tolling on the basis of
 mental incompetence is available in Vaccine Act cases.
                              C
     The government further argues that the Special Mas-
 ter correctly determined that the equitable tolling period
 ended in March 2014 upon the appointment of K.G.’s sister
 as guardian. Appellee’s Br. 26. The Claims Court ex-
 plained that, once K.G.’s sister was appointed legal guard-
 ian, the extraordinary circumstance facing K.G. was lifted
 and there was “no longer any impediment preventing Peti-
 tioner from suing.” K.G., 142 Fed. Cl. at 245. The govern-
 ment notes that there is no evidence that K.G.’s sister
 neglected her duties as court-appointed guardian.
Case: 19-1690    Document: 35     Page: 12    Filed: 03/06/2020




 12                                                K.G. v. HHS




 Appellee’s Br. 27–28. K.G. argues that the Claims Court
 and Special Master ignored the circumstances that pre-
 vented K.G.’s sister from making a claim, instead adopting
 an impermissible per se rule. Appellant’s Opening Br. 53–
 59.
     The fact that the Vaccine Act expressly allows a legal
 guardian to bring a claim on a claimant’s behalf does not
 foreclose the availability of equitable tolling for claimants
 with mental illness. Parents and legal guardians can ordi-
 narily bring claims on behalf of their wards. See, e.g., Fed.
 R. Civ. P. 17(c)(1); see also Sullivan v. Chattanooga Med.
 Inv’rs, LP, 221 S.W.3d 506, 513 (Tenn. 2007) (discussing
 the majority position among states that the appointment of
 a legal guardian does not remove a disability for purposes
 of tolling a statute of limitations). Thus, Congress’s deci-
 sion to allow guardians to bring claims is unremarkable—
 a mere codification of common practice. We therefore do
 not construe the provision of the Vaccine Act that allows
 legal guardians to bring claims on behalf of petitioners as
 a bar to equitable tolling. Accordingly, we find that the
 Special Master erred in adopting a per se rule and consid-
 ering only whether K.G. had a legal guardian. He should
 have instead analyzed the facts to determine whether
 K.G.’s legal guardianship alleviated the extraordinary cir-
 cumstance of her mental illness.
     We hold that the proper analysis of equitable tolling
 based on mental incapacity in the Vaccine Act context must
 consider both extraordinary circumstances and diligence.
 To show extraordinary circumstances, as in the veterans’
 benefits context, a Vaccine Act claimant must show that
 her failure to file was the direct result of a mental illness
 or disability that rendered her incapable of rational
 thought, incapable of deliberate decision making, incapa-
 ble of handling her own affairs, or unable to function in so-
 ciety. A medical diagnosis alone or vague assertions of
 mental problems are insufficient. See Barrett, 363 F.3d at
 1321.
Case: 19-1690    Document: 35       Page: 13   Filed: 03/06/2020




 K.G. v. HHS                                               13



     Likewise, the reasonable diligence inquiry must also be
 based on a consideration of all relevant facts and circum-
 stances. See Menominee Indian Tribe, 136 S. Ct. at 755. It
 is possible, for instance, that a reasonable amount of dili-
 gence for an individual with memory loss or hallucinations
 would equate to no diligence for an able-minded individual.
 That a mentally incapacitated individual has a legal repre-
 sentative is just one of many factors that may further in-
 form the diligence inquiry. The significance of a legal
 guardian may depend on a number of factors, including:
 the nature and sophistication of the guardian (parent, law-
 yer, family member, or third-party), the timing of the insti-
 tution of the guardianship (before or after the vaccination,
 for example), the nature of the guardian’s rights and obli-
 gations 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.
      Because the Special Master relied solely on the fact
 that K.G.’s sister acted as K.G.’s guardian to find K.G’s pe-
 tition was untimely filed, we remand for the Special Master
 to consider all of the relevant facts in the first instance,
 with the purposes of the Vaccine Act in mind.
                              III
     For the reasons stated above, we vacate and remand
 the Claims Court’s decision affirming the decision of the
 Special Master. The Claims Court should remand this case
 to the Special Master for consideration of K.G.’s claim un-
 der the standard set out in this opinion.
                VACATED AND REMANDED
                            COSTS
     Costs to appellant.
