Joseph Osler Brice and Laurajean Councill Brice, on Behalf of Their Son, Joseph Tilghman Brice v. Secretary of Health and Human Services

Opinion for the court filed by Circuit Judge DYK. Dissenting Opinion filed by Circuit Judge NEWMAN.

DECISION

DYK, Circuit Judge.

In Weddel v. Secretary of Health and Human Services, 100 F.3d 929 (Fed.Cir.1996), this court held that equitable tolling of the limitations period was not available for claims arising under section 16(a)(1) of the National Childhood Vaccine Injury Act of 1986 (“Act”), 42 U.S.C. §§ 300aa-l et seq., which applies to vaccines administered prior to the effective date of the Act (“pre-Act cases”). This case presents the *1368question whether equitable tolling is available for claims arising under section 16(a)(2) of the Act, which applies to vaccines administered after the effective date of the Act (“post-Act cases”). We hold that equitable tolling is not available in such cases.

I

Congress established the National Vaccine Program in 1986 “to achieve optimal prevention of human infectious diseases through immunization and to achieve optimal prevention against adverse reactions to vaccines.” 42 U.S.C. § 300aa-l. As part of this program, Congress established the National Vaccine Injury Compensation Program (“Program”) to provide compensation for vaccine-related injuries and deaths. See 42 U.S.C. § 300aa-10.

The Act creates a federal no-fault system for compensating injuries causally connected to vaccines. The Act establishes a claims procedure involving the United States Court of Federal Claims and special masters, see 42 U.S.C. § 300aa-12, and it provides two separate mechanisms through which a party seeking compensation may establish that an injury was caused by a vaccine. First, a causal connection between vaccine and injury is re-buttably presumed if the administration of the vaccine and the particular injury are related in time as specified in the Vaccine Injury Table of 42 U.S.C. § 300aa-14. See 42 U.S.C. §§ 300aa-ll(c)(l)(C)(i), 300aa-13(a)(1). If the injury is not listed in the Table, or if its symptoms are not evident within the time frame specified by the Table, an injured claimant faces a more demanding evidentiary burden. Such a claimant must prove that the vaccine was the actual cause of the injury. See 42 U.S.C. § 300aa-ll(e)(l)(C)(ii). As this court has noted, “[gjiven the vagaries of human illnesses, particularly in young children, that is not always an easy burden to carry.” Munn v. Sec. of Dep’t of Health and Human Servs., 970 F.2d 863, 865 (Fed.Cir.1992).

The Act does not entirely preclude traditional tort remedies. However, before an individual may bring an action seeking more than $1,000 in damages in state or federal court, he must first file a petition under the Program. See 42 U.S.C. § 300aa-ll(a)(2)(A). The filing of a petition under the Program stays the running of state statutes of limitations. See 42 U.S.C. § 300aa-16(c). The Act then gives a petitioner the choice to accept the judgment obtained under the Program and surrender his tort rights or to reject that judgment and pursue a civil action for damages. See 42 U.S.C. § 300aa-21(a). We need not decide in this case whether a petitioner who fails to file a timely petition under the Program may still pursue traditional tort remedies.

In establishing the Vaccine Program, two concerns motivated Congress. First, it was concerned that tort liability would make production of vaccines economically unattractive, potentially discouraging vaccine manufacturers from remaining in the market. See H.R.Rep. No. 99-908, at 6-7 (1986), reprinted in 1986 U.S.C.C.A.N. 6344, 6347-48. Congress thus included in the Act certain federal modifications of state tort law, including limits on punitive damage awards and a rule that a vaccine manufacturer shall not be held liable in post-Act cases if an injury resulted from unavoidable side effects provided the vaccine was properly prepared and accompanied by proper directions and warnings. See 42 U.S.C. §§ 300aa-22(b)(l), 300aa-23(d). Second, Congress was concerned that the traditional tort system was inadequate to compensate many who were injured by vaccines. Congress noted that the opportunities of those injured by vaccines to seek redress under the traditional tort system were “limited, time-consuming, [and] expensive,” and that for the injured, “mounting expenses must be met.” H.R.Rep. No. 99-908, at 6, reprinted in 1986 U.S.C.C.A.N. at 6347. Congress intended awards under the Act to be made “quickly, easily, and with certainty and *1369generosity.” H.R.Rep. No. 99-908, at 3, reprinted in 1986 U.S.C.C.A.N. at 6344. Congress also emphasized the importance of speed and the quick resolution of petitions: “The entire proceeding — from date of filing through Special Master proceedings and court review — is to take place as expeditiously as possible .... [M]uch of the equity in limiting compensation and limiting other remedies arises from the speed and reliability with which the petitioner can expect judgment; without such quick and certain conclusion of proceedings, the compensation system would work an injustice upon the petitioner.” H.R.Rep. No. 99-908, at 17, reprinted in 1986 U.S.C.C.A.N. at 6358.

II

Joseph Tilghman Brice (“Tilghman”) and his parents, Dr. Laurajean Councill Brice and Dr. Joseph Osier Brice, seek compensation under the Act for injuries that Tilghman allegedly suffered from a Measles, Mumps, and Rubella (“MMR”) vaccination he received on April 30, 1992. Nine days later, on May 9, 1992, Tilghman suffered a seizure, which petitioners contend constituted the first manifestation of a vaccine-related injury. Section 16(a)(2) of the Act specifies that for a post-Act vaccine such as Tilghman’s MMR vaccine, “if a vaccine-related injury occurred as a result of the administration of such vaccine, no petition may be filed for compensation under the Program for such injury after the expiration of 36 months after the date of the occurrence of the first symptom or manifestation of onset or of the significant aggravation of such injury.” 42 U.S.C. §§ 300aa-16(a)(2). Thus, absent any tolling, the limitations period for the Brices’ petition expired on May 9, 1995, over seven months before they filed their petition on December 19,1995.1

Following his vaccination, Tilghman experienced delays in meeting his developmental milestones. On March 30, 1995, Dr. Eileen Vining, a neurologist, diagnosed Tilghman with a residual seizure disorder. Dr. Vining told Tilghman’s mother that Tilghman had suffered an MMR reaction and suggested that the Brices file a claim under the Vaccine Program. At this point, the Brices had approximately five weeks left before the end of the limitations period. The Brices sought information on the Vaccine Program. They also began compiling Tilghman’s medical records, which they say they believed were required to file their petition. However, Tilghman’s mother did not send out requests for Tilghman’s medical records until June 19, 1995. The Brices also unsuccessfully sought counsel to assist them in fifing their petition, at least in some instances after the statutory deadline had passed. The Brices filed their Vaccine Act petition pro se on December 19,1995.

On March 27, 1996, a special master dismissed the Brices’ petition for lack of jurisdiction due to its untimely fifing. The special master did not address the possibility of equitable tolling. The Brices petitioned for review, and on September 6, 1996, the Court of Federal Claims held that equitable tolling applies to post-Act cases and remanded to the special master to determine whether equitable tolling was appropriate under the circumstances. See Brice v. Sec. Dep’t of Health and Human Servs., 36 Fed. Cl. 474, 481-82 (1996). On November 1, 1996, the special master held *1370an evidentiary hearing on the circumstances of Tilghman’s vaccination, seizure, and the actions of the Brices in the years following the seizure. On November 26, 1996, the special master concluded that the Brices had “failed to exercise reasonable diligence in discovering essential information bearing on their son’s claim” and therefore that equitable tolling was not appropriate. On February 13, 1998, the Court of Federal Claims again remanded to the special master, this time to make findings regarding whether the Brices exercised due diligence after they learned on March 30, 1995 that Tilghman suffered from residual seizure disorder. On remand, the special master concluded that between March 1995 and December 19, 1995, the Brices exercised “no diligence in this case, much less due diligence.” On August 11, 1999, the Court of Federal Claims affirmed the special master’s decision, holding that the special master’s determination that the Brices had not acted with due diligence was not arbitrary or capricious. See Brice v. Sec. Dep’t of Health and Human Servs., 44 Fed. Cl. 673, 678 (1999). The Brices then appealed to this court.

Ill

We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1295(a)(3). Whether equitable tolling is permitted under the Vaccine Act is a question of law which we review de novo. See Weddel, 100 F.3d at 931. We note that a “statute of limitations is a condition on the waiver of sovereign immunity by the United States,” and courts should be “careful not to interpret [a waiver] in a manner that would extend the waiver beyond that which Congress intended.” Stone Container Corp. v. United States, 229 F.3d 1345, 1352 (Fed. Cir.2000) (quoting Block v. North Dakota, 461 U.S. 273, 287, 103 S.Ct. 1811, 75 L.Ed.2d 840 (1983) (internal quotation omitted)).

As we have recently noted, the Supreme Court’s decisions do not speak with perfect clarity on the subject of equitable tolling against the government. See Stone Container Corp., 229 F.3d at 1352. In Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990), which involved an equitable tolling claim against the government under Title VII, the Supreme Court adopted “a more general rule to govern the applicability of equitable tolling in suits against the Government.” Irwin, 498 U.S. at 95, 111 S.Ct. 453. The Court held that once Congress had enacted a waiver of sovereign immunity, the “same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States.” Id. at 95-96, 111 S.Ct. 453. The Court explained that this new rule was “a realistic assessment of legislative intent as well as a practically useful principle of interpretation.” Id. at 95, 111 S.Ct. 453.

The Supreme Court’s subsequent decision in United States v. Brockamp, 519 U.S. 347, 117 S.Ct. 849, 136 L.Ed.2d 818 (1997), demonstrates that it is possible for the government to rebut Irwin’s presumption of equitable tolling and also creates uncertainty exactly as to when equitable tolling is permissible. In Brockamp, taxpayers asserted that the two-year limitations period of § 6511 of the Internal Revenue Code was subject to equitable tolling. The Court’s opinion raised the possibility that equitable tolling might not apply to claims against the government unless those claims were similar to claims against private parties. Nevertheless, the Court was “willing to assume, favorably to the taxpayers but only for argument’s sake, that a tax refund suit and a private party suit for restitution are sufficiently similar to warrant asking Irwin’s negatively phrased question: Is there good reason to believe that Congress did not want the equitable tolling doctrine to apply?” Brockamp, 519 U.S. at 350, 117 S.Ct. 849.

The Court in Brockamp then rejected equitable tolling under § 6511 based on the Court’s determination that the relevant *1371limitations statute manifested congressional intent to preclude tolling. Several factors influenced its analysis. First, rather than using the simple language of ordinary limitations periods, the tax statute set forth its limitations in “a highly detailed technical manner, that, linguistically speaking, cannot easily be read as containing implicit exceptions.” Id. Second, the statute also restated its limitations period “several times in several different ways.” Id. at 351, 117 S.Ct. 849. Third, the statute set forth certain explicit exceptions to its time limits, and these exceptions did not include equitable tolling. See id. Fourth, the Court pointed to the underlying subject matter of tax collection as inconsistent with the case-specific exceptions of equitable tolling. It noted that the IRS processes over 200 million returns and issues 90 million refunds each year, and that equitable tolling could therefore create significant administrative difficulties. See id. at 352, 117 S.Ct. 849. See also United States v. Beggerly, 524 U.S. 38, 48-49, 118 S.Ct. 1862, 141 L.Ed.2d 32 (1998).

This court has been required to reconcile Irwin and Brockamp on at least two occasions. In Bailey v. West, 160 F.3d 1360, 1362-1368 (Fed.Cir.1998) (en banc), this court allowed equitable tolling of time limits for appealing Board of Veterans’ Appeals decision to the Court of Veterans Appeals. That case represented a relatively easy analysis under Irwin and Brockamp, because none of the factors present in Brockamp was present in that case. See Bailey, 160 F.3d at 1365. In contrast, in RHI Holdings, Inc. v. United States, 142 F.3d 1459, 1461-63 (Fed.Cir.1998), this court rejected equitable tolling in a tax refund case under the limitations period specified in 26 U.S.C. § 6532(a). However, the analysis of the limitations period in RHI Holdings was not particularly difficult either, as the statute of limitations in RHI Holdings was similar to that in Brockamp. The limitations period in RHI Holdings was set forth in a detailed, technical manner; the statute reiterated its limitations period three times; the statute included a specific exception for extending the limitations period; and the underlying subject matter concerned tax collection. See RHI Holdings, 142 F.3d at 1462. Until now, this court has not been required to harmonize Irwin and Brockamp when some but not all of the factors identified in Brockamp were present.

IV

Before turning to the analysis of equitable tolling in this case, we note that the equitable tolling issue for post-Act cases is not resolved by Weddel v. Secretary of Health and Human Services, 100 F.3d 929 (Fed.Cir.1996). In that case, this court held that equitable tolling of the limitations period was not available for claims in pre-Act cases. However, for such cases, the Act provided a statute of repose, and equitable tolling is not applicable to statutes of repose. See, e.g., Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 363, 111 S.Ct. 2773, 115 L.Ed.2d 321 (1991). As this court noted in Weddel, a “statute of repose cuts off a cause of action at a certain time irrespective of the time of accrual of the cause of action.” Weddel, 100 F.3d at 931. In particular, for pre-Act cases, the Act provided that “no petition may be filed for compensation under the Program for such injury or death after the expiration of 24 months after the effective date of this title.”National Childhood Vaccine Injury Act of 1986, Pub.L. No. 99-660, § 2116(a)(1), 100 Stat. 3755, 3769 (1986). The rule that equitable tolling is not available for stat-. utes of repose is consistent with the principles of Irwin and Brockamp: by establishing an outer date for bringing an action, a statute of repose manifests a congressional intent not to allow tolling. See Weddel, 100 F.3d at 931.

V

We now reach the question whether equitable tolling is available in post-Act *1372cases.2 The Act states: “a vaccine set forth in the Vaccine Injury Table which is administered after the effective date of this subpart, if a vaccine-related injury occurred as a result of the administration of such vaccine, no petition may be filed for compensation under the Program for such injury after the expiration of 36 months after the date of the occurrence of the first symptom or manifestation of onset or of the significant aggravation of such injury.” 42 U.S.C. § 300aa-16(a)(2).

As an initial matter, the government asserts that under Brockamp, the rebutta-ble presumption of the availability of equitable tolling only applies if the federal cause of action is sufficiently similar to a private cause of action. The government argues that the Act creates a unique alternative to a traditional civil action and is thus unlike a private cause of action. It notes that the Act has a nonstandard evi-dentiary burden, that cases are tried through informal proceedings, that awards are limited with respect to pain and suffering and death benefits, that punitive damages are forbidden, and that judgments under the Act do not have the usual pre-clusive effects.

The reference in Brockamp to the suit against the government being “sufficiently similar” to a suit against a private party must be understood against the backdrop of It'win, in which the Supreme Court presumed that the doctrine of equitable tolling “applicable to private suits,” that is, suits against private parties, applied to suits “against the Government.” Irwin, 498 U.S. at 95-96, 111 S.Ct. 453. If the suit against the government bears no similarity to a private suit, there is no basis for the presumption that Congress intended private equitable tolling rules to apply. Thus, for example, there is no reason to assume that a. federal deadline for filing suit to challenge a generally applicable government regulatory requirement should be governed by equitable tolling principles developed in private litigation. But the rule of “similarity” generally should not apply in the context of monetary claims against the government to bar equitable tolling. The distinctions set forth by the government between a Vaccine Act claim and a traditional tort action are not sufficient, in the words of Brock-amp, to avoid “asking Irwin’s negatively phrased question: Is there good reason to believe that Congress did not want the equitable tolling doctrine to apply?” Brockamp, 519 U.S. at 350, 117 S.Ct. 849. In substance, a claim under the Vaccine Act is similar to a traditional tort claim in the sense that it seeks monetary recovery from an injury that traditionally was redressed by tort law. The Vaccine Program’s procedural and remedial distinctions from the traditional tort system do not change this fundamental fact.

However, there is good reason to find that Congress did not want the equitable tolling doctrine to apply in post-Act cases. In Brockamp, the Supreme Court relied upon five criteria in determining that the Congress did not want to apply equitable tolling to a provision of the Internal Revenue Code: the statute’s detail, its technical language, its multiple iterations of the limitations period in procedural and substantive form, its explicit inclusion of exceptions, and its underlying subject matter. See Brockamp, 519 U.S. at 350-52, 117 S.Ct. 849. It is true, as the Brices argue and the government concedes, that three of these factors are not present here: the Act is not particularly technical, it does not include multiple iterations of the limitations period, and the administrative complexity of the Vaccine Program does not compare to that of the *1373income tax. Nevertheless, we think that the remaining two factors are decisive.

First, the Act includes a specific exception from the limitations period for a petition improperly filed in state or federal court. Such a petition must be dismissed from the state or federal court, but “the date such dismissed action was filed shall, for purposes of the limitations of actions [i.e., the 36-month period] prescribed by [section 16 of the Act], be considered the date the petition was filed if the petition was filed within one year of the date of the dismissal of the civil action.” 42 U.S.C. § 300aa-ll(a)(2)(B). When an Act includes specific exceptions to a limitations period, we are not inclined to create other exceptions not specified by Congress.

Second, the limitations period is part of a detailed statutory scheme which includes other strict deadlines. Special masters are required to issue decisions within 240 days of the filing of a petition. See 42 U.S.C. § 300aa-12(d)(3)(A)(ii). Special masters may suspend proceedings for no more than a total of 150 days. See 42 U.S.C. § 300aa-12(d)(3)(C). In this connection, we note that the legislative history of the Act emphasizes the importance of quick resolution of claims. For example, Congress noted that “much of the equity in limiting compensation and limiting other remedies arises from the speed and reliability with which the petitioner can expect judgment.” H.R.Rep. No. 99-908, at 17, reprinted in 1986 U.S.C.C.A.N. at 6358. To allow equitable tolling would conflict with these principles. While the doctrine of equitable tolling is designed to prevent harsh and unjust results, the difficulty with the doctrine is that it invites prolonged and wasteful collateral litigation concerning the running of the statute of limitations. This case is a quintessential example. After its initial dismissal by the special master, it was appealed to the Court of Federal Claims, was remanded to the special master, was appealed again to the Court of Federal Claims, was remanded again to the special master, was affirmed by the Court of Federal Claims, and was finally appealed here. It has now been over five years since the Brices’ untimely filing of their petition. The government has informed us that other petitioners have sought to rely on equitable tolling in over thirty separate cases before the Court of Federal Claims. Lengthy collateral litigation is directly inconsistent with Congress’s objective in the Vaccine Act to settle claims quickly and easily.

In addition, we note that the statute of limitations here begins to run upon the first symptom or manifestation of the onset of injury, even if the petitioner reasonably would not have known at that time that the vaccine had caused an injury. It would be quite odd for Congress to allow a limitations period to run in cases in which a petitioner has no reason to know that a vaccine recipient has suffered an injury, but to provide for equitable tolling when a petitioner is aware that a vaccine has caused an injury but has delayed in filing suit.

In support of their argument for equitable tolling, the Brices emphasize that Congress intended for claims under the Act to be settled “quickly, easily, and with certainty and generosity.” H.R.Rep. No. 99-908, at 3, reprinted in 1986 U.S.C.C.A.N. at 6344 (emphasis added). They also note that in allowing equitable tolling under the Veterans’ Benefit Act, this court relied upon that act’s “uniquely benevolent statutory framework,” Bailey v. West, 160 F.3d 1360, 1369 (Fed.Cir.1998), and they argue that the Vaccine Act also has a benevolent framework. This court, however, has already rejected the notion that the Act’s purposes mandate the allowance of equitable tolling. In Weddel, we held that enforcement of a statutory cut-off date “provides claimants with certainty and in no way reduces the generosity of the program or speed with which the claims are adjudicated.” Weddel, 100 F.3d at 932. Indeed, as we have noted above, allowing equitable *1374tolling may actually interfere with quick resolution of Vaccine Act claims.3

We are told by parties that Congress may be asked to consider an extension of the statute of limitations for post-Act cases because parents of injured children are often not aware of the remedies available under the Act. It is not our role to opine on whether such legislation is desirable or undesirable. That is a proper decision for Congress to make. We determine only that equitable tolling in inconsistent with the existing statutory scheme.

CONCLUSION

For the foregoing reasons, the judgment of the Court of Federal Claims is affirmed.

COSTS

No costs.

. The Brices initially argued before the special master that Tilghman suffered a significant aggravation of his condition in September 1994, when the Brices discovered that Tilghman's condition was worse than it initially seemed. The Court of Federal Claims held that "where, as here, a petitioner alleges that a vaccine caused an injury and that later there was a significant aggravation of that same injury, the petitioner must file a petition within 36 months of the first symptom or manifestation of the onset of the injury.” Brice v. Sec. Dep’t of Health and Human Servs., 36 Fed. Cl. 474, 476 (1996). The Brices now apparently agree that the statute of limitations began to run on May 9, 1992, and in any case we agree with the analysis of the Court of Federal Claims, i.e., that the statute began to run with the manifestation of Tilghman's first symptoms on May 9, 1992.

. We reject the Brices’ argument that because the government did not file a cross-appeal, this court cannot address whether equitable tolling is available in post-Act cases. We of course may affirm a trial court’s order on any ground showing that the trial court’s judgment was correct. See Brown v. Allen, 344 U.S. 443, 459, 73 S.Ct. 397, 97 L.Ed. 469 (1953).

. We note that of the cases relied upon by the dissent, only Iavorski v. Immigration and Naturalization Service, 232 F.3d 124 (2nd Cir.2000), was issued after Brockamp. Moreover, the deportation statute and regulatory framework at issue in Iavorski had none of the criteria identified by the Supreme Court in Brockamp as manifesting congressional intent to disallow equitable tolling. The Iavorski court found no indication in the “text, structure, legislative history, and purpose” of the statute at issue that Congress intended to restrict equitable tolling. Iavorski, 232 F.3d at 130.