  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 Chey-
enne, 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 Wash-
ington, 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.

                 __________________________

    BeforeRADER, 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.
                        ORDER
     Dr. Melissa Cloer sought compensation under the Na-
tional Childhood Vaccine Injury Act of 1986, 42 U.S.C.
§§ 300aa-1 to -34 (“Vaccine Act”), alleging that her Hepa-
titis B vaccination caused her multiple sclerosis (“MS”).
The Chief Special Master dismissed her petition as un-
timely, 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 eligi-
ble 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.
3                                             CLOER   v. HHS


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 reason-
able 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 deter-
mination of whether Dr. Cloer should be awarded reason-
able 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 signifi-
cantly 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 re-
manded, 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
CLOER   v. HHS                                           4


limitations to Dr. Cloer’s case. Cloer v. Sec’y of Health &
Human Servs., 654 F.3d 1322 (Fed. Cir. 2011) (en banc).
In Cloer, we held that the Vaccine Act’s statute of limita-
tions 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 time-
barred claim.
                       II. DISCUSSION
    The Vaccine Act establishes the criteria to be consid-
ered in determining whether a petitioner is eligible for
attorneys’ fees. Section 300aa-15(e) provides:
         (1) In awarding compensation on a peti-
         tion filed under section 300aa-11 of this ti-
         tle 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 peti-
         tion. If the judgment of the United States
         Court of Federal Claims on such a petition
5                                              CLOER   v. HHS


       does not award compensation, the special
       master or court may award an amount of
       compensation to cover petitioner's reason-
       able attorneys’ fees and other costs in-
       curred 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 reason-
able 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 limita-
tions 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
CLOER   v. HHS                                             6


entitled to compensation under the [Vaccine] Program
. . . .” § 300aa-12(a) (emphasis added). In other words,
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 Con-
gress chose not to tie the right to attorneys’ fees to com-
pliance 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, § 300aa-
11(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 interpreta-
tion. Section 300aa-12(b)(1) states that “[i]n all proceed-


    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 . . . .”
7                                              CLOER     v. HHS


ings brought by the filing of a petition under section
300aa-11(b),” the Secretary shall be named as a respon-
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 300aa-
12(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, pub-
lishing notice in the Federal Register, reporting to Con-
gress, 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 claim-
    ants 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 ap-
CLOER   v. HHS                                              8


    propriate in cases where proceedings are pro-
    tracted and costly experts must be retained.
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 assis-
tance 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 Pro-
gram it created is to award compensation “to vaccine-
injured persons quickly, easily, and with certainty and
generosity.” H.R. Rep. No. 99-908, at 3. Remedial legisla-
tion 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 recov-
ery 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 peti-
tion. But even where the court does not award compensa-
tion on a petition, it may, in its discretion, make such an
9                                              CLOER   v. HHS


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 reasonable-
ness 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 peti-
tioner 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 limita-
tions grounds. Cloer overruled our precedent treating the
statute of limitations as jurisdictional and did not endorse
the underlying statutory interpretation of such cases.
CLOER   v. HHS                                             10


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
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 mas-
ters 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 inconsis-
tent 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 “peti-
tion filed” for purposes of § 300aa-15(e) and other statu-
tory 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 enti-
tled 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 peti-
tion,” including non-frivolous petitions ultimately unsuc-
cessful on limitations grounds. Holding that attorneys’
fees are only available where a petition has been sub-
jected to a final adjudication on the merits is also incon-
11                                              CLOER   v. HHS


sistent 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 unneces-
sary, 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 inter-
pretation would discourage potential Vaccine Act peti-
tioners 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 applicabil-
ity 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 limita-
tions begins to run on “the calendar date of the occurrence
of the first medically recognized symptom or manifesta-
tion of onset of the [claimed] injury,” subject to the doc-
trine 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
CLOER   v. HHS                                           12


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
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 non-
frivolous limitations claim should be eligible for a deter-
mination of whether reasonable attorneys’ fees and costs
incurred in proceedings related to his or her petition
should be awarded. Therefore, we remand for a determi-
nation 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 deter-
mination consistent with this Order.

                                   FOR THE COURT


     April 11, 2012                /s/ Jan Horbaly
         Date                      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 un-
timely 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 construc-
tion 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 Con-
gress chose and consideration of the role of the fee-
shifting 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 300aa-
11.’” While this court’s en banc decision in Cloer v. Secre-
tary 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. § 300aa-
12(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 ulti-
mately 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 Av-
era 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 judg-
ment on the merits, either awarding or denying compen-
sation. Nothing in Avera suggests that a fee award,
whether interim or otherwise, is appropriate for a claim-
ant 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 attor-
ney 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 ulti-
mately 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 pro-
gram.

    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 attor-
neys’ fees from the losing party under certain circum-
stances. 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 Soci-
    ety, 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 inap-
    propriate” to award the “loser” an attorney’s fee
    from the “prevailing litigant.”

     The Supreme Court in Ruckelshaus was able to iden-
tify only one federal statute that, as of that time, permit-
ted fee awards to a party whose views were rejected.
That statute applied not to litigation, but to the promul-
gation 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 Cres-
cent City Estates, 588 F.3d 822, 826 (4th Cir. 2009) (“Be-
cause 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 ex-
cused 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 pro-
vides 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 sub-
mission 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 rea-
sonable 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 peti-
tioner’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 rea-
sonable 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 envi-
sioned 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.
