DiPippa v. U.S.

• Decision Date: 24 August 1982
• Docket Number: No. 82-3000,82-3000
• Citation: 687 F.2d 14
• Parties: Jacqueline and Salvadore A. DiPIPPA, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Third Circuit

Page 14

687 F.2d 14

Jacqueline and Salvadore A. DiPIPPA, Appellants, v. UNITED STATES of America, Appellee.

No. 82-3000.

United States Court of Appeals Third Circuit.

Argued July 8, 1982.

Decided Aug. 24, 1982.

Anthony J. Ciotola, Hazleton, Pa., Clifford J. Shoemaker, (argued), Washington, D. C., for appellants.

David C. Shipman, Asst. U. S. Atty., Harrisburg, Pa., Leonard Schaitman, John F. Cordes (argued), U. S. Dept. of Justice, Civ. Div., Washington, D. C., for appellee.

Before SEITZ, Chief Judge, SLOVITER, Circuit Judge, and McCUNE, District Judge. ^*

OPINION OF THE COURT

SEITZ, Chief Judge.

The DiPippas appeal from the district court's order dismissing their action against the United States for injuries Jacqueline DiPippa sustained from a swine flu vaccination. This court has jurisdiction under 28 U.S.C. § 1291 (1976).

I.

In November 1976, while a federal employee, Jacqueline DiPippa voluntarily received a swine flu vaccination. The shot was given on federal premises during normal working hours. A month later, Jacqueline DiPippa developed symptoms diagnosed as Guillain-Barre Syndrome. In 1978, she and her husband filed a notice of administrative claim under the Swine Flu Act for injuries sustained from the vaccination. The Government denied the claim on the ground that the DiPippas' exclusive remedy was one for compensation pursuant to the Federal Employees Compensation Act (FECA), 5 U.S.C. § 8101 et seq. This action followed.

The DiPippas filed their complaint in the United States District Court for the District of Columbia under the Swine Flu Act of 1976, 42 U.S.C. § 247b(j)-(l ) (amended 1978). The case was consolidated with other swine flu cases for pretrial proceedings in In re Swine Flu Immunization Products Liability Litigation, 446 F.Supp. 244 (J.P.M.D.L.1978), and then was transferred to the United States District Court for the Middle District of Pennsylvania. Because the district court found there was a substantial question that FECA might be the DiPippas' exclusive remedy, ¹ it dismissed the action for want of jurisdiction.

II.

DiPippa argues that she may pursue her swine flu claim against the Government for two reasons: (1) there is no substantial question of FECA coverage and therefore she need not pursue a FECA remedy; and (2) even if there were FECA coverage, it would not bar her claim against the Government for the acts and omissions of the program participants. ² DiPippa further argues that the district court's interpretation of the Swine Flu Act denies her equal protection under the law and, in light of our doctrine that statutes should be interpreted in a constitutionally valid manner, should be rejected.

A.

The Swine Flu Act provides that a claim for any injury sustained from the swine flu program shall be brought directly against the United States under the procedures established by the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq. The Swine Flu Act makes this remedy exclusive, 42 U.S.C. § 247b(k)(3), except where a remedy under any other law provides claimant's exclusive remedy, 42 U.S.C. § 247b(k)(5)(C). Where FECA applies, its remedy is exclusive and bars all other claims for compensation against the Government. Thus, we must first determine whether FECA is DiPippa's exclusive remedy.

Only the Secretary of Labor or his designee may determine the scope of FECA coverage. 5 U.S.C. § 8128(b). In deference to such authority, this court has held that where a "substantial question" of FECA coverage exists, federal district courts will not entertain claims under the FTCA. Joyce v. United States, 474 F.2d 215, 219 (3rd Cir. 1973); Somma v. United States, 283 F.2d 149, 151 (3rd Cir. 1960).

A substantial question of FECA coverage exists unless it is "certain that (the Secretary of Labor) would find no coverage." Concordia v. United States Postal Service, 581 F.2d 439, 442-43 (5th Cir. 1978). Thus, we first consider whether DiPippa's claim presents a substantial question of FECA coverage under that standard.

DiPippa voluntarily received the swine flu inoculation while she was a federal employee, on federal premises, during normal working hours. Three FECA Program Memoranda indicate the Labor Department's intent to provide FECA coverage for adverse reactions to inoculations administered by federal employers on federal premises. FECA Program Memorandum No. 42 (March 3, 1966) states that "(d) eleterious effects such as ... reaction to agency-sponsored innoculation (sic) ... will be compensable" under FECA. FECA Program Memorandum No. 186 (December 23, 1974) supplements the 1966 memorandum and states that FECA covers "any deleterious result of medical services furnished by the employing agency for non-work related illnesses or injuries." In 1976, the Labor Department published a third memorandum stating that adverse reactions to swine flu inoculations "given to Federal employees by Federal facilities are compensable under (FECA)." FECA Bulletin No. 26-76 (October 27, 1976). We believe that these bulletins raise a substantial question of FECA coverage.

DiPippa correctly points out that the first two memoranda indicate only that agency-sponsored medical services provided under 5 U.S.C. § 7901 (1976) qualify for FECA coverage, and that she received her swine flu shot under a nationally sponsored program pursuant to 42 U.S.C. § 247b(j)-(l ). She argues that the third memorandum conflicts with recent federal court decisions and prior policies of the Secretary. See Wallace v. United States, 669 F.2d 947, 954 (4th Cir. 1982). While this may be true, it does not mean that there is not a substantial question of FECA coverage. The Secretary of Labor's decisions regarding coverage are absolutely immune from judicial review, 5 U.S.C. § 8128(b), whether or not a particular determination is grounded in logic or precedent. Cf. Gill v. United States, 641 F.2d 195 (5th Cir. 1981) (employee may not seek review of Secretary's determination of coverage on the ground of bad motive). Should the Secretary rule that FECA covers DiPippa's injury, his determination would be conclusive. We think the presence of FECA Bulletin 26-76 raises a substantial possibility that he would so rule.

We agree with the district court that DiPippa's claim presents a substantial question of FECA coverage. We are not persuaded to the contrary by the analysis in Wallace.

B.

The second issue we address is whether FECA coverage would bar DiPippa's swine flu claim against the United States for the acts and omissions of the program participants. To resolve this issue, we must look to the language of both statutes.

In the Swine Flu Act, Congress sought to implement a national vaccination program in response to the perceived threat of a national flu epidemic. In doing so, it strove both to immunize manufacturers from any liability for injuries allegedly sustained from the vaccination program and to provide just compensation for any such injury. 122 Cong.Rec. 26,813 (remarks of Cong. Rogers). To achieve these two goals, the United States substituted itself as defendant in all potential swine flu claims, § 247b(k)(1)(B), made itself amenable to suit under the FTCA, id., and made this the exclusive remedy for all swine flu claims, § 247b(k)(3), except where an alternate and exclusive method of compensating the injury existed under prior law, § 247b(k)(5)(C). Thus, we must look to FECA to determine whether or not DiPippa can maintain an action against the Government for the acts and omissions of the program participants.

Where FECA applies, it unambiguously precludes "all other liability of the United States" either "under a workmen's compensation statute or under a Federal tort liability statute." 5 U.S.C. § 8116(c). On the other hand, FECA allows claims for compensable injuries only against "a person other than the United States." 5 U.S.C. § 8131(a). DiPippa's suit is not against a third party, but directly against the United States, as the plain language of the Swine Flu Act expressly requires. See 42 U.S.C. § 247b(k)(1)(B). FECA coverage therefore seems to bar DiPippa's swine flu claim against the Government.

DiPippa argues, however, that because section 8131 allows suits against third parties, section 8116(c) does not bar her claim against the Government for the acts and omissions of the program participants. Her theory is that section 8116(c) does not apply, because, although the Government is the named defendant, the action is against third parties. DiPippa's argument not only ignores the plain language of the statute, but it misinterprets the purpose behind section 8131. Sections 8131 and 8132 make it clear that the claimant should not be compensated twice for the same injury at the Government's expense. Congress intended those sections to provide a means of reimbursement to the Government where the claimant recovers twice for the same injury. The sections allow the claimant to pursue a third party, at the claimant's expense, so long as the successful claimant reimburses the Government for any FECA benefits the claimant receives. Congress designed these sections to limit the Government's costs under FECA, not to subject it to multiple claims for the same injury, as DiPippa's statutory interpretation would do.

Plainly, by these two sections (8131 and 8132) Congress deals with the liability of persons "other than the United States " to employees entitled to compensation under the act, not for the purpose of increasing that compensation, but for the purpose of reimbursing the Government for payments made and of indemnifying it against other amounts payable in the future. The sections emphasize the disposition to treat the compensation provided for as adequate for the injuries received, and they negative any intention on the part of the Government to make further payments.

Dahn v. Davis, 258 U.S. 421, 430, 42 S.Ct. 320, 321, 66 L.Ed. 696 (1922) (emphasis in original).

Despite the clear statutory language,...