As we mentioned yesterday, two cases being argued in September at the Federal Circuit attracted amicus briefs. One of these cases is W. J. v. Secretary of Health and Human Services. In this case, the Federal Circuit will review a judgment of the Court of Federal Claims upholding a special master’s decision to grant a motion to dismiss a petition for compensation under the National Vaccine Injury Compensation Program. Notably, in this pro se case, the Federal Circuit appointed amicus curiae to file a brief and argue on behalf of the appellant. This is our argument preview.
In this pro se case, an opening brief was filed by W. J.’s parents and legal guardians, R.J. and A.J., on behalf of their son, W.J. According to the brief, W. J. “requests[s] compensation under the National Vaccine Injury Compensation Program” based on the allegation that a “Measles, Mumps, and Rubella (MMR) vaccination” caused or aggravated “chronic encephalopathy and immunodeficiency issues.” The brief raises several questions:
“Whether it was arbitrary, capricious, an abuse of discretion, clearly erroneous, or otherwise not in accordance with the law for:”
- “Judge Davis to uncritically accept that the Special Master had the authority to entertain and rule on the Secretary’s Rule 12(b)(6) motion even though Congress specifically refrained from granting the special masters authority to do so in proceedings under the Vaccine Act.”
- “the Special Master, then Judge Davis, to consider evidence or the lack thereof as a basis for deciding on the Rule 12(b)(6) motion in deviation from the U.S. Supreme Court’s Twombly/Iqbal plausibility standard and Rule 12(d) of the Rules of the Court of Federal Claims (RCFC).”
- “Judge Davis to find that the Special Master did not breach the U.S. Constitution’s separation-of-powers doctrine by ordering the Secretary to file a motion to dismiss our Petition.”
- “Judge Davis to dismiss our extraordinary circumstance equitable tolling claim based solely upon a purported law which she did not pinpointedly cite or quote, and which does not in fact exist.”
- “Judge Davis to find that our Petition did not contain sufficient well-pleaded factual allegations to find that our fraudulent concealment equitable tolling claim is a claim upon which relief can be granted under Rule 12(b)(6).”
- “Judge Davis to find that we do not have standing to bring a discrimination claim under the Fourteenth Amendment and Section 504 on behalf of W.J.”
In its response brief, the Department of Health and Human Services argues the Federal Circuit should affirm the Court of Federal Claim’s ruling. According to the government, the Special Master “did not abuse her discretion in determining that petitioners failed to file a timely petition.” The government further asserts the Special Master “had authority to dismiss petitioners’ claim under Rule 12(b)(6).” According to the government, moreover, “she did not exceed her legal authority by addressing the statutes of limitations at the outset of the case, or by considering facts presented in the medical record.” The government also argues “Petitioners have not established a basis for equitable tolling” or “a violation of W.J.’s Constitutional rights.”
“After considering the parties’ submissions,” the Federal Circuit issued an order in this case appointing an attorney, Angela M. Oliver, as “amicus curiae counsel in support of W.J. on the issue of equitable tolling.”
Oliver filed an amicus brief in support of the appellant and reversal. In the brief, she argues “the statute of limitations should be equitably tolled” because “W.J. was injured as a minor.” She asserts the “abrogation of a child’s rights is itself an ‘extraordinary circumstance’ justifying equitable tolling.” Oliver argues, moreover, that finding W.J.’s claim “untimely would likely eliminate W.J.’s ability to bring a state law action,” which she says is contrary to Congress’s intention when “designing the National Vaccine Injury Compensation Program.” She further contends that tolling should apply because W.J.’s parents “have no special training in law or medicine” and cannot “adequately communicate with W.J.” given that he is non-verbal. Finally, Oliver asserts, the court “relied on the fact that W.J. was a minor who had parents that purportedly could have filed a claim on his behalf” as the reason for rejecting the claim for equitable tolling. She argues this reasoning “effectively created a stricter standard for W.J. because of his minority status,” which is “directly contrary to what Congress intended.”
In its supplemental brief, the Department of Health and Human Services responded to the amicus brief, addressing the court’s question of “whether, under the applicable authority, equitable tolling is merited in this case.” The government argues that it is not. As for why, the government asserts that, while the court has held that “equitable tolling applies to the Vaccine Act,” it should be applied “sparingly.” It argues, moreover, a “petitioner seeking to apply equitable tolling to his claims must establish that he ‘diligently’ pursued his rights and that ‘an extraordinary circumstance’ prevented him from timely filing.” In this regard, the government asserts, “[t]he Special Master correctly found that no extraordinary circumstances prevented petitioners from timely filing” because the parents “have not asserted that they have any disability or mental incapacity” and “were capable of filing a claim on W.J.’s behalf.” In particular, it argues, “minority status is not a basis for equitable tolling.” Similarly, the government argues, pro se petitioners bringing claims on behalf of their children are “equally subject to the Vaccine Act’s statute of limitations” and W.J.’s inability to speak “would not bear on whether equitable tolling is warranted.”
This case will be argued later in the month, on Tuesday, September 26. We will report on any developments.