Ashe-Cline v. HHS - other (1993)

An unnamed petitioner filed a claim under the National Childhood Vaccine Injury Compensation Program. The specific vaccine and alleged injury are not described in the available case document, which concerns only the legal question of whether attorneys' fees may be paid to a petitioner who elected to file a civil action after her claim was denied.

On July 29, 1992, the special master issued a decision denying petitioner's claim for compensation. No party filed a motion for review within thirty days, and accordingly the Clerk of Court entered judgment dismissing the case on August 31, 1992.

On or about October 21, 1992, petitioner filed an election under 42 U.S.C. § 300aa-21(a)(2) to reject the judgment and to file a civil action for damages in state or federal court — she did not elect to receive the Program's compensation. On November 3, 1992, petitioner requested payment of attorneys' fees and costs from the special master.

The special master allowed the fees, relying on this court's decision in Saunders v. Secretary of HHS, 26 Cl.Ct. 1221 (1992).

Respondent filed a motion for review. Judge Weinstein, writing for the Court of Federal Claims on October 29, 1993, reversed the special master and ordered the fee request dismissed.

The opinion is a thorough, 25-page analysis of the interplay among three statutory provisions: section 15(e)(1) (authorizing an award of attorneys' fees as part of compensation, including when no compensation is awarded on the merits if the petition was filed in good faith with a reasonable basis); section 15(f)(1) (prohibiting payment of "compensation" until an election has been made under section 21(a) to receive it); and section 21(a) (requiring petitioners to elect either to receive compensation or to file a civil action, with the election due within ninety days of final judgment). The court held that the term "compensation" in section 15(f)(1) encompasses all forms of compensation authorized under section 15 of the Act, including attorneys' fees.

Section 15 is titled "Compensation," and its subsection (e) is titled "Attorneys' fees." Subsection (b) of section 15 expressly includes attorneys' fees within the same $30,000 compensation ceiling applicable to lost earnings and pain and suffering in pre-Act cases, treating them as one species of "compensation." Subsections (i) and (j) authorize the government's payment of "compensation" under the Program from Trust Fund and appropriated funds — the same source from which attorneys' fees are paid — confirming that the term has broad scope. Section 15(e)(1) itself states that attorneys' fees shall be awarded "as part of ... compensation." Given this pervasive statutory use, "compensation" in section 15(f)(1) necessarily includes attorneys' fees.

Because attorneys' fees are compensation, section 15(f)(1)'s prohibition on payment of compensation until an election under section 21(a) applies to fees. Petitioner's election was to file a civil action — she neither elected to receive compensation (section 21(a)(1)) nor elected to accept the judgment (section 21(a)(2)).

The court rejected Saunders's conclusion that section 21(a)'s election requirement applies only to judgments awarding compensation on the merits, leaving petitioners free to collect fees after electing a civil action. Under Saunders's reading, the election requirement of section 21(a)(2) — applicable when no compensation is awarded — would become a meaningless formality, because a petitioner who rejected a judgment denying compensation would face no consequence (she could still collect fees).

That rendering violated the canon against superfluous provisions. The court also declined to follow Mitchell v.

Secretary of HHS, 29 Fed.Cl. 150 (1993) (Mitchell II), and Wells v. Secretary of HHS, 28 Fed.Cl. 647 (1993), which had reached the same result as Saunders.

The court additionally noted that the Vaccine Rules permitting a separate, post-election attorneys' fees petition conflicted with the plain language of section 15(e)(1) — which mandates that fees be awarded "as part of" the merits compensation decision — and raised unresolved questions about the court's statutory jurisdiction to review stand-alone fee decisions independent of the merits petition. It further rejected arguments based on policy considerations, including the potential conflict of interest between petitioner and counsel if fees are conditioned on accepting the Program's judgment, as arguments properly addressed to Congress and not to the courts.

The special master's fee award was set aside as not in accordance with law, and the case was remanded to the special master for dismissal of the attorneys' fees request.