Last week, the Federal Circuit heard oral argument in W.J. v. Department of Health and Human Services. In this case, the Federal Circuit is reviewing 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. The panel hearing the argument included Judges Lourie, Dyk, and Stark. This is our argument recap.
Angela M. Oliver, court-appointed amicus curiae counsel, argued on behalf of W.J. She began by claiming the special master and the Court of Federal Claims erred by denying equitable tolling. In particular, she argued, they “erred by focusing solely on whether the child has a parent,” which, she argued, is an insufficient basis to deny equitable tolling. Instead, she continued, the relevant question is “whether the presence of a parent was sufficient to protect the child’s rights, such that being a minor was no longer an extraordinary circumstance.”
One judge sought clarification on whether Oliver’s argument that equitable tolling should be allowed is based on the pro se status of W.J.’s parents. He explained that, while “the general rule” is that parents cannot represent their children, the Vaccine Act may be an exception. The judge then posed a series of questions. First, he asked, “can this minor be represented by his parents without counsel?” Second, he asked, is that issue waivable? Third, if the general rule is that parents are not allowed to represent their children, “how does that bear on equitable tolling?” This judge suggested that, even if it is assumed parents can represent their children, maybe the court should give weight to the fact that they are appearing pro se, or in other words they are not lawyers.
Oliver asserted that the child cannot waive his right to be represented by his parents. A judge interjected, clarifying that he was asking whether “this case [is] even properly before us [and] properly before the Court of Federal Claims with the parents without counsel purporting to represent the child.” He asked whether the court should dismiss the appeal and “remand [the case] to have the Court of Federal Claims consider whether to appoint counsel.” Oliver reasoned that, while the general rule disallows parental representation, there is an “open question” as to whether this rule applies to the Court of Federal Claims.
The argument then shifted to courts’ interest in protecting childrens’ best interests. Oliver argued that, if parents can proceed on behalf of their children, it may “significantly hurt the child’s rights.” She suggested that equitable tolling is one way to ensure those rights are protected. Oliver noted that, “when parents litigate on behalf of a [child], even with counsel, and they enter a settlement, often district court judges will review the terms and ensure it’s fair for the child.”
A judge then asked if the court should remand the case to the Court of Federal Claims to clarify “whether the child wants the parents to proceed pro se and presumably factor that [fact] into the equitable tolling analysis.” Oliver, in response, suggested that, “as a matter of statutory interpretation,” the Federal Circuit could address “in the first instance . . . this question of whether a parent can proceed on behalf of a child without counsel.” She argued that the court “could answer” that question, which would “provide guidance to the special master in the Court of Federal Claims on remand.”
Oliver then turned the argument back to the issue of equitable tolling. She proposed that, while the parents’ pro se status is relevant, there are other factors and facts that the court should consider. Citing precedent, she argued that “having a guardian is not necessarily sufficient to alleviate extraordinary circumstances of incapacity.” Further, she contended, “minority status has a potential to significantly impact and interfere with a parent’s ability to protect a child’s rights because it can prevent [the parents] from understanding that a right is even being lost.”
Regarding the extraordinary circumstances needed for equitable tolling, one judge highlighted that the “large majority” of vaccine cases involve minor children. Oliver conceded that the purpose of the Vaccine Act was “geared toward children,” but she argued that a large portion of the claims now comes from adults. Moreover, Oliver argued, there are many reasons to consider a child’s minority status, including challenges identifying symptoms in childhood and a child’s inability to communicate injury to his or her parents. Oliver contended that, when considering the issue of equitable tolling, courts should consider how minority status and related prejudicial factors impact each case on a “case-by-case” basis.
One judge suggested the “staleness” of claims also weighs against equitable tolling. Oliver agreed but argued that, if “Congress had been particularly concerned about the timing of these claims, [Congress] could have also included a statute of repose, like they did elsewhere in the Vaccine Act, that would cut off claims regardless of any equitable tolling.”
One judge suggested that the special master “didn’t just treat the presence of the parents as a per se bar to equitable tolling, but actually looked at a number of factors” outlined in prior case law. Oliver disagreed, arguing the lower court and the special master required parents to comply with the statute of limitations.
Another judge asked why the Tucker Act, which he said provides disabled persons three years after the disability ceases to file a claim, does not apply in this case. Oliver responded that she doesn’t see a “clear indication that [the Tucker Act is] intended to apply to the Vaccine Act.” This judge suggested that it may apply based on the statute’s plain language.
Nathanael Yale argued for the United States. He began by addressing the Tucker Act. He argued that it does not apply to the Vaccine Act because it does not fall under the “types of claims” to which that law applies. One judge suggested that the statute’s language is broad enough to cover the issue at hand. Yale argued that Federal Circuit precedent addresses this issue. Multiple judges suggested that the issue of the statute’s application to the Vaccine Act has never been addressed. Yale argued that, in the government’s cited case law, the court “implicitly” considered equitable tolling in dismissals of claims brought pro se by parents on behalf of their children. In response, one judge suggested that, “if [a case] doesn’t explicitly consider it, it’s not binding authority.” Yale maintained this issue was not “presented in the briefing in this case.” One judge, however, disagreed, saying the issue was raised to the extent that the arguments relate to whether the parents’ pro se status should allow for equitable tolling.
Yale asserted that there is no indication that the parents have been anything but sufficient advocates and parents to the child based on his medical record and their care for his disabilities. Yale argued that “minority basis for a child being under the age of 18 on its own is not an extraordinary circumstance that would merit equitable tolling.” One judge, in response, suggested that parents’ pro se status and this “complicated statutory scheme” should be a factor in considering equitable tolling. Yale argued that the “favorable scheme” for attorney’s fees in the statute has addressed this issue, and W.J.’s parents never obtained counsel. A judge asked whether a child should “suffer” because of that choice. Yale argued that the focus should be “whether the parents were derelict in some duties of their guardianship.” He argued that, in this case, they were not. As a result, he continued, equitable tolling should not apply.
One judge expressed concern about whether a parent should be able to “give up” his or her child’s right to counsel. A judge also questioned whether factors like the “extent to which the claimant’s mental incapacity interferes with her relationship and communication with her guardian” should be considered. Yale, in response, argued that that factor may have been relevant here if there was evidence that “W.J.’s incapacity has at all interfered with his parents’ ability to advocate on his behalf,” but he said there isn’t any such evidence.
Yale argued that the parents’ ability to identify educational and medical plans for W.J. showed they sufficiently advocated for him. But a judge suggested “the fact that they can represent him in dealing with doctors is not the same thing as saying they can represent him in dealing with the court.” Yale, in response, disagreed.
Yale maintained no case law provides that parents’ pro se status allows for equitable tolling. In response, one judge sought to clarify the government’s position. He asked whether it is the government’s position that, “under the Vaccine Act, the parents can represent the child even without counsel.” Yale affirmd that this is the government’s position.
In her rebuttal, Oliver briefly reiterated that “difficulties based on . . . minority status” and “lack of communication” justify equitable tolling. One judge again suggested that most Vaccine Act cases involve children whose parents must care for them medically. Oliver responded by maintaining that, while a parent may be able to address his or her child’s medical needs, that does not necessarily put a parent “on notice” that there are Vaccine Act claims he or she may need to assert.
Notably, after the oral argument, the court issued an order requiring additional briefing on three questions:
- “Whether parents may lawfully represent their minor child pro se in asserting a claim under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10 et seq.”
- “Whether, in this case, the Court of Federal Claims and the Special Master engaged in an equitable tolling analysis that was ‘based on a consideration of all relevant facts and circumstances,’ K.G. v. Sec’y of Health & Hum. Services, 951 F.3d 1374, 1382 (Fed. Cir. 2020), including W.J.’s parents’ pro se status.”
- “Whether 28 U.S.C. § 2501, which provides ‘[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,’ applies to claims brought under the Vaccine Act.”
We will continue monitoring this case and report on developments.