Hunt v. U.S., s. 79-2049

Citation204 U.S.App.D.C. 308,636 F.2d 580
Decision Date29 October 1980
Docket NumberNos. 79-2049,79-1282,s. 79-2049
PartiesJames F. HUNT and Carol Hunt, Appellants, v. UNITED STATES of America. Catherine Strinni HOLLAR, Appellant, v. UNITED STATES of America.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Appeals from the United States District Court for the District of Columbia (D.C. Civil Nos. 79-1161 & 78-1672).

Lawrence E. Stewart, Cleveland, Ohio, for appellants in No. 79-2049.

Clifford J. Shoemaker, St. Louis, Mo., for appellant in No. 79-1282. Stephen H. Gilmore, St. Louis, Mo., was on brief for appellant in No. 79-1282.

Thaddeus B. Hodgdon, Atty., U. S. Dept. of Justice, Washington, D. C., with whom Alice Daniel, Asst. Atty. Gen., and Jeffrey Axelrad, Atty., U. S. Dept. of Justice, Washington, D. C., were on brief, for appellee in No. 79-2049.

W. Russell Welsh, Atty., U. S. Dept. of Justice, of the bar of the Supreme Court of Missouri, Washington, D. C., pro hac vice, by special leave of court, with whom Barbara Allen Babcock, Asst. Atty. Gen., and Jeffrey Axelrad, Atty., U. S. Dept. of Justice, Washington, D. C., were on brief for appellee in No. 79-1282.

Mark P. Friedlander, Jr., Washington, D. C., for Swine Flu Steering Committee, amicus curiae, urging reversal, in No. 79-1282.

John D. Heffner, Washington, D. C., was on brief for Obermayer, Rebmann, Maxwell & Hippel, amicus curiae, urging reversal, in No. 79-1282.

Before TAMM and WALD, Circuit Judges, and JOYCE HENS GREEN, * United States District Judge for the District of Columbia.

Opinion for the court filed by Circuit Judge TAMM.

TAMM, Circuit Judge:

These cases raise a difficult issue of statutory interpretation: whether members of the military may recover from the United States under the National Swine Flu Immunization Program of 1976 (Swine Flu Act), Pub.L.No.94-380, 90 Stat. 1113 (codified at 42 U.S.C. § 247b(j)-(l ) (1976)), 1 for injuries resulting from swine flu inoculations with a vaccine that was allegedly manufactured in a negligent or defective manner. Our analysis requires us to consider the Swine Flu Act, the Federal Tort Claims Act (Tort Claims Act), Pub.L.No.79-601, tit. IV, § 401, 60 Stat. 812 (1946) (codified in scattered sections of 28 U.S.C.), and a host of statutory provisions that authorize governmental benefits for service personnel who suffer disability or death. 2 Our task is complicated by the imprecise contours of the doctrine enunciated in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), which precludes certain claims by military personnel under the Tort Claims Act, and by the lack of congressional guidance in the hasty enactment of the Swine Flu Act. In the end, we are left to do again what the Supreme Court attempted in Feres : to construe the most recent legislative enactment "to fit, so far as will comport with its words, into the entire statutory system of remedies against the Government to make a workable, consistent and equitable whole," Feres v. United States, 340 U.S. at 139, 71 S.Ct. at 156.

In the course of this opinion, we first outline the provisions of the Tort Claims Act, and then trace the evolution of the Feres doctrine, which arose under that Act. We thereafter discuss the more recent Swine Flu Act, and, in determining whether the Feres doctrine should be applied to claims arising under that Act, we attempt to integrate the various statutory provisions and policies that are implicated in these cases. We emerge from this remedial labyrinth with the conclusion that members of the armed forces are not barred from asserting swine flu claims based on the tortious conduct of a vaccine manufacturer, 3 and we therefore reverse the decisions of the district court that had reached an opposite result.

I. THE FACTUAL BACKGROUND

We need pause but briefly to recite the salient facts in these cases. James F. Hunt, the appellant in No. 79-2049, and Catherine Strinni Hollar, the appellant in No. 79-1282, each received a swine flu vaccination while on active military duty in the autumn of 1976. Each developed serious maladies, allegedly as a result of the vaccination. Although Hunt remained in the service, Hollar received a medical disability discharge, receiving a fifty percent disability rating. After seeking administrative relief without success, each appellant filed suit against the United States pursuant to the Swine Flu and Tort Claims Acts, alleging governmental liability on the basis of the vaccine manufacturer's negligence or strict products liability. Each suit was transferred to the United States District Court for the District of Columbia. See generally In re Swine Flu Immunization Products Liability Litigation, 446 F.Supp. 244 (Judic. Panel on Multidist.Lit.1978). Acting on motions by the Government, the district court separately dismissed each action. 4 These appeals followed. 5

II. THE TORT CLAIMS ACT

Inherited from our European forebears, the doctrine of sovereign immunity originated in the belief that it would contradict the sovereignty of the king to allow him to be sued as of right in his own courts. See RESTATEMENT (SECOND) OF TORTS, ch. 45A, at 394 (1979) (introductory note). The king could, of course, consent to be sued, and such consent was commonly granted in England even before the American Revolution. See id. Some 170 years after ridding itself of kingly rule, our own democratic sovereign finally consented to a general abrogation of the rule that had precluded tort suits against the United States. In 1946, through the passage of the Tort Claims Act, the United States waived its sovereign immunity and agreed to be subject to suit

for money damages . . . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

28 U.S.C. § 1346(b) (1976). See also id. § 2674. 6

Under the Tort Claims Act, an injured party must first submit a claim for relief to the appropriate federal agency. See id. § 2675(a). If a satisfactory settlement is not achieved at the administrative level, the claimant may bring suit in United States District Court, where the action is tried to the court sitting without a jury. See id. §§ 1346(b), 2402, 2675(a). The Government's liability generally is determined in accordance with local law, the Government being treated as though it were a private person. See id. § 1346(b); see also id. § 2674. The Government is not liable, however, for claims based on strict or absolute liability, see id. § 1346(b) (requiring a "negligent or wrongful act or omission" by an employee of the Government), construed in Dalehite v. United States, 346 U.S. 15, 44-45, 73 S.Ct. 956, 972, 97 L.Ed. 1427 (1953), 7 nor is it liable for punitive damages, see 28 U.S.C. § 2674 (1976). Moreover, the Act lists a number of express exceptions to its otherwise broad nullification of the doctrine of sovereign immunity. See id. § 2680. 8 The Act provides time limits for the filing of administrative claims and subsequent lawsuits, see id. § 2401(b), and places a limitation on the amount of fees that may be received by a claimant's attorney, see id. § 2678.

III. THE FERES DOCTRINE
A. The Tort Claims Act's Requirement of Analogous Private Liability

Rather than leave to the courts the task of developing a body of federal tort law under the Tort Claims Act, Congress determined that the United States would be liable for the acts of its employees "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b) (1976). See also id. § 2674. Under this language, the Government stands in the shoes of a private person in like circumstances. The Government, however, is the Government, and it often wears shoes that only a sovereign wears. Thus, a difficult issue under the Act has fallen to the courts for resolution: under what circumstances is the United States liable for acts or omissions in the performance of functions for which there are no obvious private analogues?

B. The Rise of the Feres Doctrine

Especially in cases involving military claimants, the Supreme Court has followed a wavering course in its interpretation of the Tort Claims Act's requirement of analogous private liability. 9 In Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 (1949), the Court held that two servicemen could recover under the Act for injuries resulting from the negligent operation of a motor vehicle by an employee of the United States, when the accident did not occur incident to the claimants' military service. "It would be absurd to believe," said the Court, "that Congress did not have the servicemen in mind in 1946, when this statute was passed." Id. at 51, 69 S.Ct. at 919. The Court emphasized that Congress had expressly eschewed governmental liability for overseas and war activities of the Government, but had created no general exception for the claims of servicemen. See id. 10 The Court further declared that federal statutes providing disability and death benefits to members of the service "indicate no purpose to forbid tort actions under the Tort Claims Act," id. at 53, 69 S.Ct. at 920, for "(u)nlike the usual workman's compensation statute, . . . there is nothing in the Tort Claims Act or the veterans' laws which provides for exclusiveness of remedy," id. The Court thus refused to call either remedy exclusive when Congress had not done so, although it did not foreclose an adjustment, based on any available disability or death benefits, to avoid a double recovery for the same injuries. See id. at 53-54,...

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