Recently, on November 20, 2012, the U.S. Supreme Court, in Sebelius v. Cloer, No. 12-236, granted certiorari in a Federal Circuit decision (675 F.3d 1358 (Fed. Cir. 2012)), where a plaintiff losing a petition under the National Vaccine Injury Compensation Program argued she was still entitled to fee recovery. At the Federal Circuit level, plaintiff prevailed on the argument that the vaccine act’s statute of limitation was not jurisdictional and was subject to equitable tolling, although she was held to have not met the equitable tolling criteria based on the facts of her claim. However, she claimed fee entitlement under the theory that her appeal led to a precedential ruling that potentially benefited others. The Federal Circuit agreed and remanded for a fee determination.
The U.S. Supreme Court granted the government’s certiorari petition on the issue and will entertain arguments later this term after briefing is completed. Here is a link to more case information on SCOTUSblawg.