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What Can I Expect When You Take My Case? Phase 8-Appeals.

There are several phases in a vaccine case, and we will go over each phase in a single post. [NOTE: Every case is different. What is presented below is what generally happens. But each case has its own unique posture and requirements.]

If the Special Master rules against you in Entitlement, that is, if the Special Master finds the vaccine did not cause your injury you may have an opportunity to appeal that decision. Because the Vaccine Court has Special Masters and not judges, the first level of appeal is a Review by a Judge of the Court of Federal Claims. The Vaccine Court falls within the US Court of Federal Claims. As such, each Special Master’s decision is reviewable by a Judge of the Court of Federal Claims.

When the Special Master rules against us, we do an immediate analysis of the case to see whether there are any appealable issues. Not every loss is appealable. What that means is, just because we lost doesn’t mean we have grounds for an appeal. After our analysis, we will give you our opinion based on our experience and the current state of the law. Timing is critical because we only have 30 days in which to file a Motion for Review. Unlike in other areas of appeals, we do not get to file a short motion and then file the brief later. We must prepare the complete brief and file it within 30 days of the Special Master’s decision.

After we file our brief, we will be assigned a Judge. We won’t know who that will be until after our brief is filed. Once we’ve filed the Motion for Review the DOJ/HHS has 30 days in which to file its response. There is no right of reply at this level. Once the opposing side has filed their brief, the Claims Court Judge has 120 days, per the Rules of the Court, to issue their opinion. During that time period they may order oral arguments on the briefs filed. These arguments are between the lawyers. You are not required to be there.

In issuing their opinion, the Claims Court Judge may generally do one of three things. First, they may sustain the decision of the Special Master, meaning they deny the Motion for Review and uphold the Special Master’s decision. Second, they may grant the Motion for Review, set aside the findings of the Special Master and rule in our favor and remand (send) the case back down to the Special Master for a determination of damages. Finally, they grant the Motion in part and remand (send) the case back to the Special Master to conduct further proceedings (additional trial, evidence gathering, findings of fact, etc.).

If the Judge sustains the decision of the Special Master, you’ve lost again. At that point you may appeal the Special Master’s decision to the US Court of Appeals for the Federal Circuit. We will have 60 days in which to file our motion for appeal to the Circuit. This is the situation where we file the motion first and then get a briefing schedule. The Circuit may do essentially the same things as the Judge at the Court of Federal Claims. A loss at the Circuit effectively ends your case. The next level of appeal is the US Supreme Court. However, it is not a right of appeal. That means you have to petition the Court to be allowed to appeal to the Supreme Court. The overwhelming majority of petitions are denied.

If the Judge at the Claims Court remands the case for further proceedings or for damages the Special Master has 90 days in which to comply with the order either determining damages or issuing another decision on entitlement. If the Special Master rules against you again, you have the right to file another Motion for Review and the process starts over.

Once the case concludes, either through Damages and no appeal from the opposing side, or a loss with no further appeal, the next step is the Attorney’s Fees and Costs Phase. This includes any litigation expenses incurred by you during the pendency of the case.


For more information contact The Law Office of Renée J. Gentry, Esq.

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