There are some cases in which the argument tells us a lot more about likely outcomes than the briefing.  Tuesday’s argument in Sebelius v. Cloer was one of those.  As a general rule of thumb, if you are arguing on behalf of the Solicitor General, it is a pretty bad sign if Justice Scalia dismisses your sovereign immunity argument out of hand.  So when that happened early in the Sebelius argument on Tuesday, the signs indicating a ruling against the government could hardly have been more clear.

The case involves a most unusual statutory scheme that provides no-fault compensation for individuals who suffer adverse reactions after taking a vaccine.  A claimant who suffers a covered injury seeks relief by filing a petition with the Secretary of Health and Human Services (currently the petitioner, Kathleen Sebelius).  The petition is adjudicated by a special master and reviewed by the Court of Federal Claims; all appeals go to the Federal Circuit.  Awards come from a fund generated by a small tax on vaccines covered by the program.  Among the other oddities of the program, the statute provides that the fund will pay attorney’s fees for all petitions (meritorious or not) filed in good faith and with a substantial basis.

The specific problem here arises because the respondent, Dr. Cloer, filed her claim for compensation out of time.  Although reasonable minds could differ on that question (she prevailed before a panel of the Federal Circuit), ultimately her petition was held untimely.  Still, recognizing the substantial basis for her view that the petition was timely, the Federal Circuit authorized an award of fees.

In the Supreme Court, the briefing presented two diametrically opposed views of the statute.  The government relied most heavily on the argument that waivers of sovereign immunity must be construed narrowly.  Because it is so rare for Congress to require the payment of attorney’s fees for losing parties, the government argued that the Court should be most reluctant to read the provision so broadly as to apply even to cases that were not filed within the statute of limitations.  Dr. Cloer, in contrast, emphasized that in ordinary parlance a “petition” is “filed” when it is presented to and accepted by the relevant government office, something that unquestionably happened here.

The government’s argument collapsed entirely under withering and unceasing questioning that began the moment Benjamin Horwich rose for the government. Horwich’s basic argument is that because the statute of limitations says that no “petition” may be filed out of time, and because attorney’s fees are available only for “petitions,” an untimely filing is not a “petition” for purposes of the attorney’s fees provision.

The problem, which Horwich could not evade, is that there are numerous provisions of the statute that under any sensible reading have to extend to filings in the traditional sense – pleadings presented to and accepted by the filing office – whether or not timely. Thus, Horwich’s argument dissolved into a series of confrontations about such provisions.  Justice Ginsburg, for example, asked about a provision that requires respondent Sebelius (as head of HHS) to publish a list of “petitions” in the Federal Register.  After first making the embarrassing admission that HHS “has not been complying with that provision for the last few years,” Horwich agreed that when HHS last complied, it included timely and untimely filings in the published list.  (Indeed, Robert Fishman pointed out in his argument for Dr. Cloer that the untimely filing in this case was published in such a list – essentially an admission by the government that it was a “petition.”) Similarly, in a conversation with Justices Kagan and Kennedy, Horwich acknowledged that the Special Master’s report to the Court of Federal Claims on “petitions” does not distinguish between timely and untimely filings.

Next in line was Justice Scalia.  Horwich attempted to distinguish the conversations with Justices Ginsburg, Kagan, and Kennedy as dealing with matters resolved at the beginning of the case, when timeliness will not yet have been addressed. Horwich argued that because the attorney’s fee determination comes at the end of the case, when timeliness will have been examined, the exclusion of untimely filings would make sense then.  But Justice Scalia then asked whether a judgment dismissing an untimely filing was an appropriate response.  When Horwich said that it was, Justice Scalia pointed out that the statute authorized judgments only in response to “petitions.”  To him, this proved that Horwich’s argument “simply doesn’t fly.”

When Scalia asked Horwich if he had a second argument, Horwich retreated to the canon calling for narrow interpretations of waivers of sovereign immunity.  Here, Justice Scalia abruptly cut him off, rejecting Horwich’s argument out of hand:

Well, wait.  Congress has waived sovereign immunity.  It’s absolutely clear that there’s a waiver of sovereign immunity here. . . .  And once we find that, I don’t think we nit-pick the following language to unrealistically narrow it as much as possible.  . . .  [O]nce it’s clear that [Congress] has agreed to be sued, I think we just interpret the language reasonabl[y].

From a broad perspective, the argument was reminiscent of the famous Monty Python “cheese-shop” sketch, in which John Cleese assures the patron that he has many varieties of cheese, just not the one for which the patron is looking.  However Horwich tried, he was unable to come up with an example to persuade the Court that his reading makes sense of the statute.  This is not to suggest any failing on his part – a fair reading of the briefs suggests that the case stands or falls on the narrowing sovereign-immunity canon.  When Justice Scalia rejected that argument, the case seemed all but over.

Posted in Sebelius v. Cloer, Featured, Merits Cases

Recommended Citation: Ronald Mann, Argument recap: Justices dubious of limits on attorney’s fees in vaccine cases, SCOTUSblog (Mar. 21, 2013, 10:25 AM), http://www.scotusblog.com/2013/03/argument-recap-justices-dubious-of-limits-on-attorneys-fees-in-vaccine-cases/