[00:00:00] Speaker 04:
We have one case on the calendar this morning, W.E.J.

[00:00:03] Speaker 04:
versus HHS, 2022, 2119, Ms.

[00:00:09] Speaker 04:
Oliver.

[00:00:11] Speaker 04:
First, Ms.

[00:00:11] Speaker 04:
Oliver, the court would like to thank you for agreeing to serve as an amicus in this appeal.

[00:00:18] Speaker 04:
And secondly, I want to ask, are you sure you want to reserve time to rebut?

[00:00:25] Speaker 00:
If I may, I would prefer to reserve three minutes.

[00:00:28] Speaker 04:
Three minutes, all right.

[00:00:32] Speaker 00:
May it please the court?

[00:00:34] Speaker 00:
Angela Oliver as amicus on the issue of equitable tolling.

[00:00:37] Speaker 00:
This case presents an important question regarding a child's ability to pursue his rights under the Vaccine Act.

[00:00:43] Speaker 00:
And in denying equitable tolling, the special master and court of federal claims erred by focusing solely on whether the child has a parent.

[00:00:51] Speaker 00:
But that should not be dispositive of the child's rights.

[00:00:54] Speaker 00:
Instead, the court should look to whether the presence of a parent was sufficient to protect the child's rights.

[00:01:00] Speaker 00:
such that being a minor was no longer an extraordinary circumstance.

[00:01:04] Speaker 03:
And you argue that that wasn't sufficient in these circumstances in part because the parents were pro se and hadn't retained counsel.

[00:01:15] Speaker 03:
And in preparation for the argument, we've looked at cases.

[00:01:20] Speaker 03:
The general rule seems to be in the federal system under Rule 17 that parents without counsel cannot.

[00:01:30] Speaker 03:
There are some exceptions to that.

[00:01:33] Speaker 03:
There's a court of federal claims case that says maybe this vaccine act context is an exception.

[00:01:40] Speaker 03:
But I guess that raises two questions, one of which is can

[00:01:46] Speaker 03:
This minor be represented by his parents without counsel.

[00:01:53] Speaker 03:
Is that issue waivable?

[00:01:55] Speaker 03:
Has it been waived?

[00:01:57] Speaker 03:
And second, if that's the general rule about

[00:02:01] Speaker 03:
parents not being able to represent a minor without counsel, how does that bear on the issue of equitable toll?

[00:02:09] Speaker 03:
Even if we assume that the parents can represent the child, doesn't that general rule suggest maybe that you should give some weight to the fact that the parents are pro se?

[00:02:23] Speaker 03:
That's a complicated question.

[00:02:25] Speaker 00:
Sure, and I'll try to address it in turn.

[00:02:27] Speaker 00:
First, I don't think that's a waivable issue, because at the end of the day, we have to look at whether the child's rights for protective.

[00:02:34] Speaker 03:
The child, of course, cannot waive that.

[00:02:36] Speaker 03:
When I said it's a waivable issue, I was asked two separate questions, or one.

[00:02:40] Speaker 03:
Is this case even properly before us, properly before the Court of Federal Claims, with the parents, without counsel, purporting to represent the child?

[00:02:48] Speaker 03:
Under cases in general under Rule 17, that can't happen.

[00:02:55] Speaker 03:
The parents can't represent the child.

[00:02:58] Speaker 03:
So is that a waivable issue?

[00:03:00] Speaker 03:
Do we have to be concerned that we should dismiss this case, for example, or remand it to have the court of filings consider one of the point council or whatever.

[00:03:11] Speaker 03:
So that's one issue.

[00:03:13] Speaker 03:
The second issue is how does all of this bear on the equity settlement issue.

[00:03:16] Speaker 00:
Absolutely.

[00:03:17] Speaker 00:
OK, so as to the first issue, I think there is an important question about whether a parent can proceed on behalf of a child, per se.

[00:03:25] Speaker 00:
Typically in federal courts, the rule is no.

[00:03:27] Speaker 00:
Courts typically dismiss the case without prejudice and instruct them to hire counsel.

[00:03:32] Speaker 00:
And this is based on the text of 28 USC 1654.

[00:03:39] Speaker 00:
That's where this jurisprudence comes from.

[00:03:41] Speaker 00:
And the text of the statute

[00:03:44] Speaker 00:
if I may, it reads that an individual can proceed with their own case personally or with counsel.

[00:03:51] Speaker 00:
And so courts typically use that own case language to say, OK, you're not proceeding with your own case.

[00:03:56] Speaker 00:
You're proceeding with your child's case.

[00:03:57] Speaker 00:
So that's where that case law comes from.

[00:03:59] Speaker 00:
I think there is a question of statutory interpretation in 1654 about whether that applies to the four federal claims.

[00:04:06] Speaker 00:
The statute says Courts of the United States.

[00:04:09] Speaker 00:
And when you look at other statutes around 1654, it's a little ambiguous whether the Court of Federal Claims is considered a court of the United States in that context, such as the statute would apply.

[00:04:21] Speaker 00:
So there is an open question there, and there is, as you recognize, a CFC case.

[00:04:26] Speaker 00:
But I think overall, the important point is if they can proceed on behalf of a child without counsel,

[00:04:35] Speaker 00:
That could significantly hurt the child's rights.

[00:04:38] Speaker 00:
And that's an even more important circumstance for the courts to step in and be cautious about making sure the child's rights are preserved.

[00:04:45] Speaker 00:
And equitable tolling, I think, is one of the ways that the court can ensure that those rights are protected.

[00:04:50] Speaker 00:
In other words, offering more leniency in that context.

[00:04:53] Speaker 00:
So I do think it's an open question.

[00:04:54] Speaker 00:
I don't think it can be waived, because it's an issue of the child's rights.

[00:04:58] Speaker 00:
And children are always wards of the court.

[00:05:01] Speaker 00:
And the courts typically do look out for the interests of children.

[00:05:04] Speaker 00:
A similar example would be in district court, when parents litigate on behalf of a parent, even with counsel, and the inner settlement.

[00:05:12] Speaker 00:
Often, district court judges will review the terms and ensure it's fair for the child.

[00:05:16] Speaker 00:
So there is an extra degree of courts looking out for the interest of the child in this context.

[00:05:22] Speaker 02:
So where, in your view, does that leave us in this case?

[00:05:27] Speaker 02:
If it's an issue, it's a right of the child,

[00:05:31] Speaker 02:
this right has not been explored as best as I can tell from the record by us or in the Court of Federal Claims.

[00:05:37] Speaker 02:
Do we just send it back to the Court of Federal Claims to straighten out whether the child wants the parents to proceed per se and presumably factor that into the equitable tolling analysis if they can get over this hurdle?

[00:05:51] Speaker 00:
Sure.

[00:05:51] Speaker 00:
So as a matter of statutory interpretation, this court could certainly address that in the first instance on the question of whether a parent can proceed on behalf of a child without counsel.

[00:06:00] Speaker 00:
And if the court would like additional briefing on that specific issue, I'd be happy to assist.

[00:06:04] Speaker 00:
But that's a question that this court could answer and then provide guidance to the special master and the Court of Federal Claims on remand as to how they should proceed, including potentially appointment of counsel, if that's the outcome of the court's analysis.

[00:06:18] Speaker 00:
So turning back to, I think, the issue of equitable tolling, obviously, the pro se context is a significant factor here.

[00:06:25] Speaker 00:
But I think there are other factors and facts that the court needs to consider.

[00:06:28] Speaker 00:
Of course, we know from this court's decision in KG that simply having a guardian is not necessarily sufficient to alleviate extraordinary circumstances of incapacity.

[00:06:39] Speaker 00:
In that case, that was mental incapacity.

[00:06:41] Speaker 00:
And here, we're discussing minority incapacity.

[00:06:44] Speaker 00:
Of course, a child cannot bring their own claim.

[00:06:47] Speaker 00:
And the question in that case was whether the guardian's presence was sufficient to alleviate the extraordinary circumstance of the incapacity.

[00:06:55] Speaker 00:
And I think another way to phrase that is just, are the disabled individual or the child's rights sufficiently protected by the guardian or the parent such that we don't have those extraordinary circumstances any further?

[00:07:07] Speaker 00:
I think that extends naturally to the context of children.

[00:07:09] Speaker 00:
The 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 them from understanding that a right is even being lost.

[00:07:23] Speaker 00:
So for example, a child may not be old enough to communicate pain and symptoms they're experiencing, so the parent will be unaware of the symptoms or the full range of symptoms, also unaware of the timing.

[00:07:35] Speaker 04:
But the large majority of these vaccine cases involve minors.

[00:07:40] Speaker 04:
And so minority cannot be exceptional circumstances for equitable toll.

[00:07:47] Speaker 00:
I think two things.

[00:07:48] Speaker 04:
I think the usual circumstance.

[00:07:51] Speaker 00:
Perhaps, I think of late, since the Vaccine Act now includes flu vaccines, there's actually a significant number of petitions that are being filed by adults based on the flu vaccine.

[00:08:02] Speaker 00:
And so that is kind of a different consideration there.

[00:08:06] Speaker 00:
But I understand, of course, the purpose of the Vaccine Act was geared originally towards children.

[00:08:11] Speaker 00:
But I think that there are inherent reasons why you have to look out to whether the child's interests are protected because of their minority status.

[00:08:20] Speaker 00:
So for many injuries, for example, in the Vaccine Act table, some of the symptoms that are listed are just normal symptoms of being a child.

[00:08:28] Speaker 00:
So for example, one injury lists as symptoms anguished crying and irritability.

[00:08:33] Speaker 00:
And that, of course, is just the nature of being a child.

[00:08:36] Speaker 00:
And so I think some of those considerations and the inability to explain the timing and what's going on in the child's experience

[00:08:44] Speaker 00:
shows that in some cases, depending on the cause of action, depending on the facts at issue, there's going to be situations where a parent cannot adequately represent the child's interests because they just don't have the information.

[00:08:56] Speaker 00:
Now, it's going to be a case-by-case issue.

[00:08:59] Speaker 00:
There's no, I'm not suggesting that in every case the fact that you're a minor is going to be dispositive of the equitable tolling inquiry.

[00:09:06] Speaker 00:
I think it's going to depend on how and whether the parent is sufficiently effective.

[00:09:11] Speaker 00:
I think it also depends on the balance of the prejudicial equities.

[00:09:15] Speaker 00:
So in this case, balancing the equities, there's very little, if any, prejudice to the government.

[00:09:23] Speaker 00:
There is a fund dedicated specifically for compensating vaccine act claims.

[00:09:28] Speaker 00:
Every vaccine that's given has a tax.

[00:09:29] Speaker 00:
It goes into a fund.

[00:09:30] Speaker 00:
It's invested.

[00:09:31] Speaker 00:
So this is not an issue of an unexpected hit against the public fisc.

[00:09:36] Speaker 03:
The other issue... Well, maybe not, but I mean, as with any statute of limitations, it's designed to prevent evidence from going stale.

[00:09:45] Speaker 03:
And so in that sense, the delay can prejudice the government because they make it more difficult for them to make out their case, right?

[00:09:54] Speaker 00:
Potentially, although I would argue the staleness of the evidence would make it more difficult for a plaintiff to potentially make out their case.

[00:10:00] Speaker 03:
Well, it makes it difficult for both of them, right?

[00:10:03] Speaker 00:
Sure, sure.

[00:10:04] Speaker 03:
It's not as though the government doesn't care or is unaffected by the delay.

[00:10:10] Speaker 00:
Sure.

[00:10:10] Speaker 00:
And there could be, in a fact by fact analysis in each case, the staleness of evidence could counsel against equitable tolling in a particular case.

[00:10:18] Speaker 00:
And unmindful of that could impact the analysis, because the prejudice analysis would be different.

[00:10:23] Speaker 00:
We don't have an argument from the government based on that in this case.

[00:10:26] Speaker 00:
At most, it's just the delay of the timing.

[00:10:30] Speaker 00:
But if Congress had been particularly concerned about

[00:10:33] Speaker 00:
the timing of these claims, they 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.

[00:10:42] Speaker 00:
And, of course, we know from Supreme case law that statutes of repose are not subject to equitable tolling.

[00:10:48] Speaker 03:
Well, we've already held there is equitable tolling under the statute, so we don't need to worry about that.

[00:10:53] Speaker 00:
in this statute of limitations, sure.

[00:10:55] Speaker 00:
But had Congress put in a statute of repose, I think that would have cut off claims and solved the prejudice to the government if there was a serious concern of Congress.

[00:11:03] Speaker 00:
But significantly, there is prejudice here to W.J.

[00:11:07] Speaker 00:
And that prejudice is unique in that it extends not just to his federal claim.

[00:11:12] Speaker 00:
Of course, he's missing the opportunity to bring his Vaccine Act claim.

[00:11:15] Speaker 00:
but extends far beyond that, too, to his potential state law remedies.

[00:11:20] Speaker 02:
Can I ask you, in this case, the special master seems to have understood that equitable tolling exists and 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 that we had outlined in the KG case.

[00:11:40] Speaker 02:
Isn't that what happened here?

[00:11:42] Speaker 00:
Respectfully, I don't think that's the best reading of the Special Master in Court of Federal Claims opinions.

[00:11:47] Speaker 00:
I think at Appendix 38, for example, the Special Master says that parents must file within the statute of limitations, and that is, quote, true for all petitions brought on behalf of all minors.

[00:11:58] Speaker 00:
And the Court of Federal Claims similarly said at Appendix 18 that, quote, as in any vaccine case involving a child, close quote, the parents can file.

[00:12:07] Speaker 00:
And so I think they are viewing that more as a broad

[00:12:11] Speaker 00:
or certainly at least a default rule.

[00:12:13] Speaker 00:
And I didn't see a lot of discussion of the other particular facts of this case outside of fraudulent concealment, which I think is a separate issue that doesn't address the same issue.

[00:12:21] Speaker 02:
Didn't the special master talk about the timing of the vaccination, the fact that the parents were representing the child's interests vis-a-vis doctors, et cetera, the parents' mental capacity?

[00:12:38] Speaker 02:
Didn't the special master go through a few of those factors?

[00:12:41] Speaker 00:
The special master did mention those, but I don't think those are the nature of the factors that KG was talking about.

[00:12:48] Speaker 00:
So I don't think the special master particularly focused on how the inability to communicate and inability to understand symptoms could have impacted the parent's ability to protect the child's rights, to understand whether the parents even knew that they should be protecting the child's rights in this context.

[00:13:05] Speaker 00:
So I think the most appropriate course would be to further clarify what is relevant here, particularly in the context of minority tolling, in the equitable tolling context, and remand, of course, for the special master to consider a variety of factors, with the focus being on whether the child's rights were sufficiently protected, and considering all of the ways that the fact that W.J.

[00:13:28] Speaker 00:
was a young child, and a lot of this was developing, could have impacted the parent's inability to bring the claim.

[00:13:33] Speaker 03:
Okay, but before we run out of time, I would like to ask about 2501, which the parents raise in their supplemental filing on the face of it.

[00:13:43] Speaker 03:
It seems to be an unqualified provision for a three-year period to file after the child reaches majority.

[00:13:53] Speaker 03:
So why wouldn't 2501 apply in these circumstances in this case?

[00:14:00] Speaker 00:
I do think it's a creative argument.

[00:14:03] Speaker 00:
I think the difficulty with it is potentially that two things.

[00:14:08] Speaker 00:
One, I don't see a clear indication that it's intended to apply to the Vaccine Act.

[00:14:13] Speaker 03:
It just says anything within where there's a petition before the Court of Federal Plains, which covers the Vaccine Act, doesn't it?

[00:14:22] Speaker 00:
Yes, although I think that was more in the context of the Tucker Act, and I think that's a little bit of a different context.

[00:14:29] Speaker 00:
That's a jurisdictional statute of limitations.

[00:14:32] Speaker 03:
It's a different context, but the Supreme Court keeps telling us to look at the plain language.

[00:14:38] Speaker 03:
The plain language, it seems to me, is a bit hard to get around.

[00:14:42] Speaker 00:
Sure, sure.

[00:14:43] Speaker 00:
That's the best answer I have at this time on that issue.

[00:14:47] Speaker 00:
I just think it's perhaps difficult to see how it applies to the Vaccine Act, other than, as you say, just the plain language.

[00:14:54] Speaker 00:
But if the court would like for the briefing, I'd be happy to file a letter brief addressing specifically that question.

[00:14:59] Speaker 00:
The last thing I'd just like to mention is I think there is one case cited in the government's brief that I think is particularly helpful in the context of understanding why equitable tolling based on minority makes sense.

[00:15:10] Speaker 00:
This is Booth versus United States, a Ninth Circuit opinion from 2019, and there the court addressed arguments based on minority status in a couple different contexts, but one was equitable tolling.

[00:15:21] Speaker 00:
And the court recognized there that

[00:15:23] Speaker 00:
Minority status by itself is not sufficient to warrant equitable tolling.

[00:15:28] Speaker 00:
But the court also said that particular circumstances connected to one's age could support equitable tolling.

[00:15:35] Speaker 00:
And one example is where the cause of action is not reasonably knowable by the parents.

[00:15:39] Speaker 00:
And if I may go into my rebuttal for about 20 seconds.

[00:15:43] Speaker 04:
You were going into.

[00:15:48] Speaker 00:
Oh, I apologize.

[00:15:49] Speaker 00:
I was going to briefly address diligence, but I can put that aside if the court would prefer me to sit down.

[00:15:55] Speaker 04:
We will give you a formal bottle time back.

[00:15:58] Speaker 04:
Thank you.

[00:16:00] Speaker 04:
Mr. Ross.

[00:16:22] Speaker 01:
Thank you, Your Honor.

[00:16:23] Speaker 01:
Kacen Ross for the Federal Respondent.

[00:16:25] Speaker 01:
I think I'll start with the two issues that Judge Dyke identified in the beginning presentation.

[00:16:30] Speaker 01:
First, 28 USC.

[00:16:32] Speaker 03:
Could maybe you start with 2501?

[00:16:34] Speaker 01:
That was exactly where I was going.

[00:16:36] Speaker 01:
So that statute applies to the Tucker Act and claims brought under that statute.

[00:16:41] Speaker 03:
Well, sure, but doesn't the plain language cover this vaccine act also?

[00:16:45] Speaker 01:
I don't believe so, Your Honor.

[00:16:47] Speaker 01:
And in fact, I'll point the court to page 44 of the appendix in which the petitioners specifically invoked the jurisdictional provision of the Vaccine Act, that's section 12, which affords the Special Masters and the Court of Federal Claims jurisdiction over claims brought under the Vaccine Compensation Program, as here.

[00:17:03] Speaker 01:
And I'll additionally point the court to Ontario Power Generation, the United States, which is, it's not in the brief, so I'll give you the citation, 369 F.

[00:17:10] Speaker 01:
3rd, 1298, in which case the court specifically delineated the kinds of cases brought under Section 2501, which is namely contract claims against the government.

[00:17:23] Speaker 03:
That's not what 2501 says.

[00:17:26] Speaker 03:
I'm not understanding why the plain language doesn't cover this, because this refers to petitions in the Court of Federal Claims.

[00:17:34] Speaker 03:
The Vaccine Act says this is a petition in the Court of Federal Claims.

[00:17:38] Speaker 03:
It provides for a three-year period after majority.

[00:17:41] Speaker 03:
What's the language there?

[00:17:44] Speaker 03:
You're really talking about the context, the purpose of it.

[00:17:47] Speaker 03:
the Tucker Act, but the language doesn't say anything about the Tucker Act.

[00:17:52] Speaker 01:
I believe Section 2501 is a statute of limitations provision for the jurisdictional provision of the Tucker Act and the Tucker Act.

[00:18:00] Speaker 03:
It's not just that.

[00:18:01] Speaker 03:
It has this provision in there which seems to be so broad as to cover the situation.

[00:18:07] Speaker 03:
Why doesn't it?

[00:18:11] Speaker 01:
I think, at minimum, the Vaccine Act provides a more specific statute of limitations, in which case the specific argument is general.

[00:18:18] Speaker 03:
Well, sure, the argument here is not that it supersedes the Tucker Act statute of limitations.

[00:18:23] Speaker 03:
There's another paragraph in there.

[00:18:25] Speaker 03:
It says, simply, a petition on the claim of a person under a legal disability.

[00:18:31] Speaker 03:
That's the minor child here.

[00:18:36] Speaker 03:
at the time the claim accrues may be filed within three years after the disability ceases.

[00:18:44] Speaker 03:
There it is.

[00:18:45] Speaker 01:
Correct, but section 12 of the Vaccine Act provides specifically for jurisdiction.

[00:18:51] Speaker 01:
It's a separate jurisdictional provision.

[00:18:53] Speaker 01:
The claims at issue here are not subject to section 2501.

[00:18:58] Speaker 01:
So I understand the plain language argument, but that provision is simply inapplicable here.

[00:19:03] Speaker 01:
Petitioners did not invoke the special master's jurisdiction.

[00:19:06] Speaker 02:
Are you saying, I'm not familiar with Ontario Power, that's a decision of our court?

[00:19:10] Speaker 01:
It is, you're right.

[00:19:10] Speaker 02:
And are you saying we already addressed this question there?

[00:19:13] Speaker 01:
I believe this court construed the kinds of claims that are brought under the Tucker Act, which includes Section 2501, such that the claims brought here under the vaccine compensation program are not subject to that jurisdictional provision.

[00:19:25] Speaker 03:
So it doesn't address this provision of 2501, right?

[00:19:30] Speaker 01:
which does not, Your Honor.

[00:19:32] Speaker 03:
The Ontario power decision?

[00:19:34] Speaker 01:
No, it does.

[00:19:35] Speaker 01:
It does what?

[00:19:36] Speaker 01:
It addresses that provision, saying the kinds of claims brought under, and they're subject to that truth.

[00:19:40] Speaker 03:
It addresses the provision I read about tolling?

[00:19:44] Speaker 01:
I believe so.

[00:19:45] Speaker 01:
And it explains the kinds of claims.

[00:19:48] Speaker 01:
It articulates the kinds of claims that are normally brought under the Tucker Act, which are not the kinds of claims brought here.

[00:19:54] Speaker 02:
I take it it does not expressly consider whether it also applies to Vaccine Act cases.

[00:20:00] Speaker 02:
Is that right?

[00:20:00] Speaker 01:
That's true, but that's because there's a separate statutory provision that provides the Court of Federal Claims with jurisdiction to hear the Vaccine Act claims brought under that program.

[00:20:11] Speaker 01:
So the Tucker Act is entirely inapposite here.

[00:20:13] Speaker 01:
It has no bearing on this case because, and petitioners in fact did not invoke the jurisdiction of the Court of Federal Claims by citing that case.

[00:20:22] Speaker 01:
They've now belatedly cited that case.

[00:20:24] Speaker 03:
Do you agree that if this paragraph I'm referring to are separate statutes,

[00:20:28] Speaker 03:
that there would be no argument for not applying it here?

[00:20:33] Speaker 01:
I'm sorry, I don't understand your question.

[00:20:35] Speaker 03:
If the provision of 2501 that I referenced were in a separate statute, there would be no argument for not applying it in the Vaccine Act context, would there?

[00:20:48] Speaker 01:
I'm sorry, I still don't understand.

[00:20:49] Speaker 01:
It is a separate statute.

[00:20:51] Speaker 03:
No, but if we're divorced from the Pucker Act,

[00:20:54] Speaker 03:
statute of limitations, if that paragraph were alone as a separate statute.

[00:21:01] Speaker 01:
Applying to any claim brought in the court of federal claims?

[00:21:04] Speaker 01:
Yeah.

[00:21:06] Speaker 01:
I'm not sure that I'm prepared to concede that point now without considering it further, but all I will say again is that in enacting the vaccine compensation program, Congress created a comprehensive scheme to be able to consider particular claims brought under that program.

[00:21:22] Speaker 01:
Among those is section 12, which specifically provides jurisdiction of the special masters and the court of federal claims to hear those claims brought under this program.

[00:21:31] Speaker 01:
The Tucker Act has no bearing on this case, and the citation of that here is merely a distraction.

[00:21:40] Speaker 03:
So should we move on to acrobot tunneling?

[00:21:42] Speaker 01:
Sure.

[00:21:43] Speaker 01:
So with respect to the concerns raised with respect to Rule 17, I will point the court to the cases cited in the government's brief, GLG and Price, in which panels of this court affirmed the dismissal of claims brought pro se by parents on their children's behalf.

[00:22:00] Speaker 01:
They didn't consider the issue, right?

[00:22:02] Speaker 01:
I think the court must have implicitly considered the issue.

[00:22:05] Speaker 03:
We have plenty of cases that say if it doesn't explicitly consider it, it's not binding authority.

[00:22:12] Speaker 01:
The rule 17 issue is also not squarely presented here, Your Honor.

[00:22:15] Speaker 01:
So in those cases, GLG and Price, the panels of this court affirmed dismissal of claims that were not timely brought by parents who were proceeding pro se.

[00:22:24] Speaker 01:
That's not sightable as authority on this point.

[00:22:26] Speaker 03:
Excuse me?

[00:22:27] Speaker 03:
They're not sightable as authority on this point.

[00:22:29] Speaker 03:
They didn't consider the issue.

[00:22:31] Speaker 03:
They didn't discuss it.

[00:22:33] Speaker 01:
Respectfully, Your Honor, that issue is also not presented in the briefing in this case.

[00:22:38] Speaker 03:
Well, it is to the extent that they are arguing that the fact that the parents were cross-a ought to resolve the neck of the tone.

[00:22:46] Speaker 01:
To the extent there is any question of W.J.'

[00:22:49] Speaker 01:
's parents' advocacy on behalf of their child,

[00:22:52] Speaker 01:
The record is replete with examples in which throughout his life have been incredible advocates and parents for him.

[00:23:01] Speaker 01:
They've proceeded to provide individualized educational programs.

[00:23:05] Speaker 01:
That's page 200 and 201 and 220 of the appendix.

[00:23:08] Speaker 01:
They've advocated for various medical diagnoses and struggled with

[00:23:14] Speaker 01:
caring for him throughout his life.

[00:23:15] Speaker 01:
There's no indication that at any point they were anything but excellent parents, repeatedly taking him to the doctor, repeatedly getting different diagnoses for various problems, ostensibly and as they contend, associated with the measles, mumps, rubella vaccine.

[00:23:31] Speaker 01:
But at all points, they have been incredible parents for him.

[00:23:35] Speaker 01:
They've belatedly filed a claim over 10 years after some of those symptoms, which they allege were connected to a vaccine,

[00:23:43] Speaker 01:
manifested that they bring suit in the court of federal claims.

[00:23:47] Speaker 01:
But there's no basis under the Vaccine Act to consider that belated filing as some sort of extraordinary circumstance to warrant equitable tolling.

[00:23:57] Speaker 01:
There is no minority basis, or excuse me, a child being under the age of 18 on its own is not an extraordinary circumstance that would merit equitable tolling.

[00:24:07] Speaker 01:
There is no impediment to the parent's filing.

[00:24:09] Speaker 03:
Now, but what about the idea that

[00:24:12] Speaker 03:
In this context, they will pro-say this is a complicated statutory scheme and at least ought to be a factor in considering whether there's an extraordinary circumstance that would support equitable tolling.

[00:24:27] Speaker 03:
I mean, it's not a simple thing to figure out what the statute provides.

[00:24:34] Speaker 03:
We've had multiple cases explaining how to proceed under it.

[00:24:38] Speaker 03:
It seems to me quite difficult for someone who's not a lawyer, a parent who's not a lawyer, to navigate this.

[00:24:44] Speaker 01:
Certainly.

[00:24:44] Speaker 01:
I agree, Your Honor.

[00:24:45] Speaker 01:
But that's exactly why Congress provided an incredibly favorable scheme for attorney's fees.

[00:24:52] Speaker 01:
Any claim brought in good faith and on a reasonable basis, even if you don't prevail, is able to get attorney's fees.

[00:24:58] Speaker 01:
And there's no indication here that W.J.'

[00:25:00] Speaker 01:
's parents even sought the assistance of counsel.

[00:25:02] Speaker 01:
Not that they'd even retained counsel.

[00:25:04] Speaker 03:
Yeah, but the question is, should the child suffer from that?

[00:25:08] Speaker 01:
I don't know that's the wrong question to ask, Your Honor.

[00:25:10] Speaker 01:
Rather, it's whether the parents were derelict in some duties of their guardianship.

[00:25:16] Speaker 01:
The Vaccine Act specifically provides that parents may bring suit on their child's behalf and defines the legal representative as one that is subject to the duties as required under state law.

[00:25:27] Speaker 01:
If the parents were derelict in some sense, or W.J.

[00:25:31] Speaker 01:
didn't have advocates for him,

[00:25:34] Speaker 01:
then maybe the court could consider, as it did in KG, that equitable tolling might be warranted.

[00:25:39] Speaker 01:
But that is certainly not the case here.

[00:25:42] Speaker 01:
This is a case, as the court explained in Klur, it's just a garden variety case of excusable neglect.

[00:25:49] Speaker 02:
That's where Rule 17C comes in, because other circuits that have considered it seem to say,

[00:25:56] Speaker 02:
that the right to give up the right to counsel is a right that the child, in this instance, holds.

[00:26:04] Speaker 02:
And other circuits, at least, don't let the parents give up the right that the child has to be represented by counsel.

[00:26:11] Speaker 02:
It's not a question of how much they love and support and have the best interests of the child at heart.

[00:26:16] Speaker 02:
It's that right to proceed pro se that only the child, other courts have said,

[00:26:23] Speaker 02:
you know, give up.

[00:26:24] Speaker 02:
And since the child here is unable to give it up, the case can only proceed if the parents have counsel.

[00:26:31] Speaker 02:
Why should we not follow that type of reasoning?

[00:26:35] Speaker 02:
And if so, where would that leave us?

[00:26:37] Speaker 01:
So at the outset, I will apologize by saying that I'm not sufficiently familiar with those cases.

[00:26:41] Speaker 02:
And the issue was not briefed.

[00:26:42] Speaker 02:
I understand that.

[00:26:43] Speaker 01:
I will say in the alternative that the Vaccine Act, as this Court and the Court of Federal Claims has repeatedly said, provides a very flexible scheme for representing claimants and provides a number of, specifically by statute, provides a number of ways in which guardians or legal representatives can bring claims on an injured person's behalf.

[00:27:02] Speaker 01:
So Congress, I think, contemplated that there would be circumstances in which

[00:27:07] Speaker 01:
the claimant him or herself would not be able to choose representation, but would instead be represented by a guardian, as here.

[00:27:15] Speaker 01:
And I think naturally, if those guardians choose not to obtain legal representation, despite the Vaccine Act's very favorable scheme for providing for attorneys fees, for example, and I think you can naturally construe Section 15 as Congress's incentive, effectively, for parties to obtain counsel, as they often do.

[00:27:37] Speaker 01:
That there's not it's not necessarily the same framework.

[00:27:40] Speaker 01:
So I think that Well, I'm not familiar exactly with the court that other courts of appeals decisions that you cited judge start that the vaccine act is at least Distinguishable as a legal batter because of the very favorable Attorney's fees regime that's available here.

[00:27:55] Speaker 02:
And then I guess my next question would be is

[00:27:58] Speaker 02:
doesn't all that have to be factored in to a extraordinary circumstances analysis?

[00:28:04] Speaker 02:
And in that regard, I would point you to what we said in KG where we remanded for the court to consider all the relevant factors in the first instance.

[00:28:17] Speaker 02:
Not sure that we could say here that all the relevant factors have been considered when, among other things, this question of did

[00:28:26] Speaker 02:
the child here have a right to counsel that the parents maybe knowingly, maybe unknowingly gave up was not apparently considered.

[00:28:34] Speaker 01:
So at the outset, I will note that the court reserved the question over whether equitable tolling would be warranted in KG and remanded for further consideration of that question.

[00:28:43] Speaker 02:
Based on all the factors.

[00:28:44] Speaker 01:
Right, of course, but did not opine on whether it would have been appropriate in that case.

[00:28:49] Speaker 01:
That was a factual question.

[00:28:51] Speaker 02:
How could we say today in this case that we're reviewing

[00:28:54] Speaker 02:
that all the relevant factors were considered.

[00:28:57] Speaker 01:
Right.

[00:28:58] Speaker 01:
I think I'll point the court to what I think is the third factor that the KG panel identified, which is the extent to which the claimant's mental incapacity interferes with her relationship and communication with her guardian.

[00:29:11] Speaker 01:
factor might be relevant here in the sense that if there was any evidence in the record, which I don't believe there is, of whether Kate or W.J.'

[00:29:20] Speaker 01:
's incapacity has at all interfered with his parents' ability to advocate on his behalf.

[00:29:26] Speaker 01:
Again, I will note that his parents were able to identify educational plans for him, adequately administer his medications.

[00:29:33] Speaker 03:
How does that show that they're able to represent him in a legal context, which you admitted a

[00:29:40] Speaker 03:
minutes ago is complicated and difficult.

[00:29:44] Speaker 03:
I mean 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.

[00:29:51] Speaker 01:
At risk of repeating myself, and I think you don't agree with me, but panels of this court's decisions in GLG and Price say exactly the opposite.

[00:29:59] Speaker 01:
I realize that the issue of whether per se representation is a question for equitable tolling is warranted was not squarely presented there.

[00:30:07] Speaker 01:
But if anything, those decisions at least demonstrate that this court has rejected the notion that equitable tolling should apply simply because a petitioner is pro se.

[00:30:17] Speaker 01:
That is an argument that's been, I think, adequately raised here.

[00:30:23] Speaker 01:
And not one that petitioners have ever called into question.

[00:30:27] Speaker 01:
Indeed, amicus's brief itself invited the parents to identify any additional considerations that might bear on whether equitable tolling is warranted here.

[00:30:35] Speaker 01:
And they identified none.

[00:30:36] Speaker 01:
They did not file a supplemental brief despite the court's invitation to do so.

[00:30:40] Speaker 01:
And they're here.

[00:30:43] Speaker 01:
only after the court scheduled oral argument and indicated that only the government and amicus would argue did they seek leave to file a memorandum in lieu of oral argument and in that filing they only now identified the Tucker Act argument which as I said earlier is a red herring here and is merely a distraction but at least they haven't identified any additional considerations that would warrant equitable tolling here to demonstrate that

[00:31:09] Speaker 01:
They were confused by the Vaccine Act, or that they didn't understand that they should have filed earlier, but there's no indication that they saw any, they never attempted to do so.

[00:31:21] Speaker 01:
And this court in Clure specifically rejected the notion that the Vaccine Act includes a so-called discovery rule.

[00:31:28] Speaker 01:
Rather, the text of the Vaccine Act requires that the claim accrues at the first symptom or manifestation of an injury.

[00:31:35] Speaker 01:
It's not when the parents knew about it, but when the symptom actually happened.

[00:31:39] Speaker 03:
Can I be clear about one thing?

[00:31:41] Speaker 03:
Sure.

[00:31:41] Speaker 03:
Is the government's position that under the Vaccine Act, the parents can represent the child even without counsel?

[00:31:49] Speaker 01:
Yes.

[00:31:52] Speaker 01:
Absent additional questions, we urge the court to affirm.

[00:31:55] Speaker 04:
All right.

[00:31:56] Speaker 04:
Thank you.

[00:31:57] Speaker 04:
No questions.

[00:31:59] Speaker 04:
Thank you, Mr. Ross.

[00:32:01] Speaker 04:
Ms.

[00:32:01] Speaker 04:
Oliver, you may take up to two minutes.

[00:32:08] Speaker 00:
Thank you, Your Honor.

[00:32:11] Speaker 00:
The focus here needs to be on ensuring that the child's rights are protected.

[00:32:15] Speaker 00:
And part of that may be ensuring that they have access to counsel to represent their claims.

[00:32:21] Speaker 00:
The lack of counsel also goes to the equitable tolling analysis.

[00:32:24] Speaker 00:
It's not just the lack of counsel, but also the other factors that we've talked about today.

[00:32:29] Speaker 00:
For example, the fact that minority status makes it difficult

[00:32:32] Speaker 00:
for a parent to understand, in many cases, that a cause of action has even accrued.

[00:32:37] Speaker 00:
The lack of understanding of symptoms, pain, the timing of symptoms, all of that goes to whether the parent would understand that there is an injury and a causation that they should be protecting and considering legal rights to assert on behalf of the child.

[00:32:51] Speaker 00:
And without the parents having that full set of understanding, there is no way that they can adequately represent the child's rights.

[00:32:57] Speaker 00:
This is not going to be a dispositive rule in every case.

[00:33:01] Speaker 00:
In many cases, a parent will be fully adequate to protect those rights based on the knowledge that they have.

[00:33:08] Speaker 00:
But in a lot of cases, such as this one, there are difficulties based on the minority status and based on the lack of communication that justify equitable tolling.

[00:33:18] Speaker 03:
And on top of that...

[00:33:21] Speaker 00:
Sure, just the fact that he is under 18.

[00:33:24] Speaker 00:
And particularly, I think this goes to the inability to communicate and understand the impact of symptoms that are occurring in younger children.

[00:33:32] Speaker 00:
Sometimes those symptoms are just naturally differences in development as children get older.

[00:33:38] Speaker 00:
So it makes it difficult for a parent to be operating with a full set of facts.

[00:33:42] Speaker 04:
I appreciate your comment that some of these cases involve adults at the large.

[00:33:51] Speaker 04:
majority of these cases involve parents who observe symptoms of illness in their children, and they take care of them medically.

[00:34:03] Speaker 04:
So they're not unable to observe and take cognizance of the illnesses of their children.

[00:34:11] Speaker 00:
I do.

[00:34:12] Speaker 00:
My time is about to expire.

[00:34:13] Speaker 00:
May I answer your question?

[00:34:14] Speaker 00:
Thank you.

[00:34:15] Speaker 00:
So I think just because a parent is able to

[00:34:19] Speaker 00:
take care of their child's medical needs and take them to the doctor and try to figure out what's going on.

[00:34:24] Speaker 00:
That's always going to be the priority.

[00:34:25] Speaker 00:
And in fact, in cases where they're having significant symptoms, the parents are going to be focused on that.

[00:34:31] Speaker 00:
I don't think that necessarily puts the parent on notice that there are Vaccine Act injuries that they may need to be asserting, particularly when some of those symptoms that might kick off a statute of limitations

[00:34:43] Speaker 00:
are just normal symptoms of being a child or could be attributed by a doctor to be something else.

[00:34:48] Speaker 00:
I think it's going to be a case by case inquiry about what is fair as far as whether the child had an opportunity to have their rights protected.