Swine Flu Immunization Products Liability Litigation, In re, 88-5100

• Decision Date: 08 August 1989
• Docket Number: No. 88-5100,88-5100
• Citation: 279 U.S.App. D.C. 366,880 F.2d 1439
• Parties: , 14 Fed.R.Serv.3d 444 In re SWINE FLU IMMUNIZATION PRODUCTS LIABILITY LITIGATION. Linda KENNEDA, Appellant, v. UNITED STATES of America.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1439

880 F.2d 1439

279 U.S.App.D.C. 366, 14 Fed.R.Serv.3d 444

In re SWINE FLU IMMUNIZATION PRODUCTS LIABILITY LITIGATION Linda KENNEDA, Appellant, v. UNITED STATES of America.

No. 88-5100.

United States Court of Appeals District of Columbia Circuit.

Argued March 31, 1989.

Decided Aug. 8, 1989.

Appeal from the United States District Court for the District of columbia.

David W. Johnson, for appellant.

Jeffrey Axelrad, Dept. of Justice, with whom John R. Bolton and Laura D. Millman, Dept. of Justice, Washington, D.C., were on the brief, for appellee.

Before MIKVA, SILBERMAN, and D.H. GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge D.H. GINSBURG.

D.H. GINSBURG, Circuit Judge:

The district court dismissed plaintiff Linda Sue Kenneda's Federal Tort Claims Act complaint on the ground that she had not filed her administrative claim within two years from the time her cause of action accrued, as required by the Act, 28 U.S.C. Sec. 2401(b). The district court rejected plaintiff's argument that the "discovery rule" operated to preserve her claim, because "plaintiff was fully aware of serious injury following a Swine Flu inoculation but failed to file a complaint because the precise nature of the injury was not diagnosed by her physicians...."

I. BACKGROUND

The gist of plaintiff's complaint is that the Government is liable to her, under various warranty and tort theories, because in November 1976, as part of the National Swine Flu Influenza Program, it gave her an inoculation from which she contracted Guillain Barre Syndrome (GBS), a debilitating disease. In her response to the Government's interrogatories, plaintiff recounted that she began to ache and to vomit within a few hours after receiving the inoculation; that some months later (in March 1977), after experiencing headaches and numbness in her hands, she first sought medical treatment; that thereafter other, more debilitating symptoms, such as atrophy of muscle tissue, came on, leading her to consult several different doctors; and that in December 1980 her then current doctor diagnosed her illness as GBS. In her affidavit responding to the Government's motion to dismiss, plaintiff further stated: that "at all times wherein I experienced the aforementioned problems I consulted with my physicians, and asked my physicians what had caused my problems, [but] ... despite my inquiries, my various physicians informed me that they did not know what the cause of my problems was"; and that "it was not until on or after January 25, 1985 that any physician responded to my inquiries by suggesting or indicating to me that my problems were the result of the swine flu inoculation."

On Friday, January 23, 1987, plaintiff sent her administrative claim to the appropriate Government office via overnight courier service. On Monday, January 26, that office was closed due to a snowstorm; the Government therefore did not receive plaintiff's claim until Tuesday, January 27, two years and one work day after she learned that her injury might be traceable to the swine flu shot she had received. On February 12, 1987, the Government denied plaintiff's claim on the grounds that it failed to demonstrate the requisite elements of causation and negligence and that it was filed more than two years after it accrued.

II. ANALYSIS

The Government concedes that the statute of limitations did not begin to run on plaintiff's claim until she had learned of both her injury and its cause, and it does not challenge her representation that she had no knowledge of that cause until January 25, 1985. Therefore, we cannot uphold the district court on the basis stated in its order, which addresses only plaintiff's knowledge of her injury; if plaintiff lacked actual and constructive knowledge of the cause of her injury, then her being merely "aware of [having a] serious injury," as recited by the district court, would not defeat her argument that the statute of limitations was tolled by her reasonable failure to discover the cause of the injury.

The Government asks us to uphold the district court on the ground that, even if plaintiff did not know the cause of her injury before January 25, 1985, she should have known it, i.e., a reasonably diligent person would have known it. In the alternative, the Government contends that we should affirm because it did not receive plaintiff's administrative claim until January 27, 1987, more than two years after she admittedly knew of her cause of action.

A. Preliminary Issues

We address these arguments below, after resolving two preliminary issues going, respectively, to the basis for the district court's order and to the appropriate standard for assessing it.

1. The "Jurisdictional" Nature of Sec. 2401. It is unclear whether the district court viewed the two-year time limitation of Sec. 2401 as a jurisdictional bar. The Government, in its motion for dismissal, clearly did, for it sought dismissal pursuant to Fed.R.Civ.P. 12(b)(1) ("lack of jurisdiction over the subject matter"). In granting the motion, the court cited Rule 12(b), but stated in its order that the dismissal was "with prejudice"--a disposition usually reserved for a ruling on the merits. See Fed.R.Civ.P. 41(b) ("Unless the court in its order for dismissal otherwise specifies, a dismissal ..., other than a dismissal for lack of jurisdiction, ... operates as an adjudication upon the merits."); Costello v. United States, 365 U.S. 265, 285-86, 81 S.Ct. 534, 544-45, 5 L.Ed.2d 551 (1961); C. Wright & A. Miller, Federal Practice and Procedure Sec. 2373 at 237 (1971 & 1988 Supp.) ("dismissals that do not reach the merits as for want of jurisdiction ... must be without prejudice").

The legal premise underlying the court's order may be that, when a plaintiff challenging an agency denial of her FTCA claim is held not to have satisfied the filing requirement of Sec. 2401, that holding is "jurisdictional" only in the sense that it prevents the court from reaching the merits of the complaint, and not in the sense that it would be no bar to that plaintiff bringing a later case based upon the same agency action. Cf. Sexton v. United States, 832 F.2d 629, 630, 637 (D.C.Cir.1987) (dismissal for untimeliness under Sec. 2401 treated sub silentio as a ruling on the merits). In this case, however, we are called upon to examine the factual premise for the district court's apparent ruling that it lacked jurisdiction, viz., that plaintiff's claim was untimely filed. Because, as discussed below, we find that premise defective, we need not speculate further about the district court's legal theory. Since both parties have treated the Sec. 2401 limitation as "jurisdictional," we too will use that term, but we need not pass upon either the aptness of the label or whether the district court's judgment, if undisturbed, would have precluded a subsequent claim based upon the same facts.

2. Standard for Dismissal. There is a question as to the appropriate standard for the grant of a Rule 12(b)(1) motion. Unlike Rule 12(b)(6) ("failure to state a claim upon which relief can be granted"), which looks to the merits of a claim, Rule 12(b)(1) does not expressly authorize the court to rely upon matters outside the pleadings and concomitantly to treat a motion thereunder as a request for summary judgment under Rule 56, even though a similar need to look to matters outside the pleadings may arise. (In this case, for example, the district court apparently relied upon both plaintiff's medical records, which the Government submitted in support of its motion, and her responses to the Government's interrogatories, in an effort to determine whether it had "jurisdiction.")

This difference between Rules 12(b)(1) and 12(b)(6) raises an issue, novel in this Circuit, with respect to the standard for dismissal under Rule 12(b)(1). The standard is quite strict under Rule 12(b)(6), where the court limits itself to the pleadings; a defendant must show "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1955). Under Rule 56, on the other hand, the burden on the movant (which would here, by imputation, be the Government) is not as heavy: a defendant need show only that no reasonable factfinder could, based upon the materials submitted by both sides, find for the plaintiff. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). The lesser burden in the latter case makes sense because the party opposing summary judgment, unlike the opponent of dismissal per Rule 12(b)(1) (here, by imputation, Ms. Kenneda) has an opportunity to submit extra-pleading materials in support of her allegations; there is no need for the proponent of summary judgment to anticipate and to negate every possibility ("no set of facts") because the only relevant facts have been identified.

We agree with the Second Circuit, see Exchange National Bank v. Touche Ross & Co., 544 F.2d 1126, 1131 (2d Cir.1976) (Friendly, J.), that where a judgment is entered pursuant to Rule 12(b)(1) and, like a summary judgment, is based in part upon matters outside the pleadings, the proper approach is to look to the standard of Rule 56, rather than to the stricter standard of Rule 12(b)(6), for guidance. Cf. Williamson v. Tucker, 645 F.2d 404, 412-13 (5th Cir.1981) (suggesting that court of appeals would apply "clearly erroneous" standard to district court's resolution of factual issues raised in a 12(b)(1) motion). Thus, we shall assess plaintiff's complaint and her submissions in response to the Government's motion by asking whether she showed that a reasonable factfinder could rule in her favor on her discovery rule argument.

B. The Discovery Rule

In Sexton, 832 F.2d at 637, we held that a plaintiff has a duty to inquire into the unknown cause of a known injury. Accordingly, we reject pla...