In late February, the Federal Circuit issued its opinion in W.J. v. Secretary of Health and Human Services, a case we have been following because it attracted an amicus brief. In this case, the Federal Circuit reviewed 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. The Federal Circuit appointed amicus curiae counsel to present arguments on behalf of the appellant. In an opinion by Judge Lourie that was joined by Judges Dyk and Stark, the Federal Circuit affirmed the conclusion of the Court of Federal Claims “that equitable tolling was not appropriate and, thus, that Appellants’ petition was not timely filed under 42 U.S.C. § 300aa-16(a)(2).” This is our opinion summary.
Judge Lourie began by highlighting the factual and procedural background of the case:
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. . . . 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 master. . . . On June 3, 2021, the special master held an initial status conference, largely focusing on the petition’s request for equitable tolling. On August 2, 2021, the Secretary of the Department of Health and Human Services (“Secretary”) filed a motion to dismiss the petition as untimely. . . . 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. . . . 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, properly applying both the correct standard of review and precedent governing equitable tolling.
Judge Lourie began the Federal Circuit’s analysis by addressing initial questions that arose in the case, including “(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.”
Judge Lourie addressed the first question, emphasizing that “no party raised the issue” of “proper representative for Appellant.” Judge Lourie concluded that the court did “not find it appropriate in this case to decide the representation question we alone injected into this appeal.”
Turning to the second question, regarding the tolling provision, Judge Lourie concluded that the tolling provision “is inapplicable to any petition not governed by the . . . six-year statute of limitation.” Moreover, he concluded, the “six-year statute of limitations does not apply to Appellant’s Vaccine Act claim.” This, he explained, is because “the specific limitations provision in the Vaccine Act governs Vaccine Act claims and the general provision of § 2501 does not.” Therefore, Judge Lourie concluded, “[s]ince § 2501’s six-year statute of limitations does not apply to Vaccine Act Claims,” the parents here “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 vaccine related injuries.”
Judge Lourie then turned to the main arguments raised by the parents and amicus curiae. Judge Lourie considered, first, their equitable tolling argument. He concluded that “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.” Furthermore, Judge Lourie explained, the facts do not support equitable tolling, because the 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” given that they “made other medical decisions on behalf of W.J. throughout this exact timeframe.”
Next, Judge Lourie addressed the argument that “minority tolling should apply” based on the “statutory purposes underlying the Vaccine Act.” Judge Lourie disagreed, instead finding that the “plain language of the Vaccine Act does not include, or even suggest, minority tolling.” Judge Lourie also addressed the argument of fraudulent concealment, finding that the parents “failed to plead any facts to suggest intentional concealment by the government.”
Judge Lourie also agreed that “the special master acted well within her discretion in identifying a concern regarding the statute of limitations at the outset of the case.” He determined “[t]he 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.”
As a result of its analysis, the Federal Circuit affirmed the concusion of the Court of Federal Claims “that equitable tolling was not appropriate and, thus, that Appellants’ petition was not timely filed under 42 U.S.C. § 300aa-16(a)(2).”