Richardson v. USA.
| Decision Date | 22 October 1999 |
| Docket Number | No. 98-5176,98-5176 |
| Citation | 193 F.3d 545 |
| Parties | (D.C. Cir. 1999) Roy Dale Richardson, Appellant v. United States of America, et al.,Appellees Consolidated with 98-5236 |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeals from the United States District Court for the District of Columbia(No. 97cv01962)
Kimberlee Cleaveland, Student Counsel, argued the cause as amicus curiae for appellant. On the briefs were Steven H. Goldblatt, appointed by the court, and Todd Coltman, Nikhil Singhvi and Olivier Sylvain, Student Counsel.
Roy Dale Richardson, appearing pro se, was on the briefs for appellant.
Somesha Ferdinand, Attorney, U.S. Department of Justice, argued the cause for appellees. With her on the brief were David W. Ogden, Acting Assistant Attorney General, Jeffrey Axelrad and Mary McElroy Leach, Attorneys, and Wilma A. Lewis, U.S. Attorney.
Before: Edwards, Chief Judge, Wald and Williams, Circuit Judges.
Opinion for the Court filed by Chief Judge Harry T. Edwards.
Roy Richardson brought this action under the Federal Tort Claims Act ("FTCA") and Swine Flu Act for injuries allegedly suffered as a result of his 1976 swine flu vaccination while serving in the United States Air Force. The District Court dismissed Mr. Richardson's pro se complaint for lack of subject matter jurisdiction, holding that his allegation fell within the discretionary function exception to the FTCA. See 28 U.S.C. § 2680(a) (1994). Subsequently, the court denied Mr. Richardson's motion for reconsideration and for leave to amend the complaint.
On the record before us, we find that Mr. Richardson effectively amended his complaint when he filed a timely response to the Government's motion to dismiss. The amended complaint easily satisfied liberal pleading requirements, for it made clear that Mr. Richardson was not seeking compensation for tortious acts or omissions of military personnel, but, rather, for the vaccine manufacturer's alleged tortious conduct in producing a defective vaccine. Indeed, Mr. Richardson specifically cited Hunt v. United States, 636 F.2d 580 (D.C. Cir. 1980), in asserting that his claim was based on the defective or negligent manufacturing of the vaccine. Because Mr. Richardson effectively amended his complaint to state a legitimate claim over which the District Court had subject matter jurisdiction, we must reverse the trial court's judgment dismissing his complaint. In light of this holding, we have no need to reach Mr. Richardson's argument that the District Court abused its discretion by failing to grant him leave to amend his complaint after it was dismissed.
On November 19, 1976, while Roy Dale Richardson was on active duty with the U.S. Air Force at Tinker Air Force Base, in Oklahoma City, Oklahoma, military personnel ordered him to be vaccinated with the swine flu vaccine. Richardson alleges that he suffered a "near toxic allergic reaction" to the vaccine, causing him to be hospitalized for four days, and that hospital tests conducted at that time revealed a "mitral valve leak" and hypertension. See Complaint pp 11, 17, reprinted in App. to Br. of Amicus Curiae ("App.") 6-7. Mr. Richardson was honorably discharged on May 16, 1977.
Mr. Richardson claims that he did not become aware of the full extent of his vaccine-caused injuries until April 1995, at which time he was awarded Veteran's Administration disability compensation. He alleges that his injuries are varied, including kidney stones, numerous cardiovascular diseases, and possible leukoplakia. On August 27, 1997, after filing sundry administrative complaints, Mr. Richardson filed this complaint pro se in District Court seeking damages and equitable relief under the FTCA and the Swine Flu Act. In his initial complaint, he alleged that the United States was "negligent in this action, because the swine flu vaccine which was administered to the Plaintiff was double the recommended dose for civilians or other non-military personnel."Id. p 18, reprinted in App. 8.
On November 12, 1997, the United States moved to dismiss the action for lack of subject matter jurisdiction, making three arguments. First, the United States argued that the Feres doctrine bars the claims under the FTCA. See Feres v. United States, 340 U.S. 135, 146 (1950) (). Alternatively, the Government argued that the FTCA's statute of limitations bars Mr. Richardson's claims. Finally, the United States contended that the claims fall within the discretionary function exception to the FTCA, see 28 U.S.C. § 2680(a), because Mr. Richardson challenged discretionary policy-based decisions by asserting that the military negligently administered a double-dose of the vaccine.
On December 9, 1997, Mr. Richardson filed a response to the Government's motion to dismiss. He asserted that he did not seek compensation for tortious acts or omissions of military personnel, but for the "vaccine manufacture's [sic] tortious conduct, conduct that, absent the [Swine Flu] Act, would give rise to a claim assertable directly against the manufacturer." Resp. to Def.'s Mot. to Dismiss at 2, reprinted in App. 38. Mr. Richardson claimed that the vaccine manufacturer would be liable under local law absent the Swine Flu Act, because it "produced a defective vaccine." See id. at 3, reprinted in App. 39. Mr. Richardson denied basing his claim on "any military order" and instead argued that his claim was based on the defective or negligent manufacturing of the vaccine. See id. at 3-4, reprinted in App. 39-40 (). Mr. Richardson also disputed the Government's argument regarding his compliance with the statute of limitations.
On March 13, 1998, the District Court granted the Government's motion to dismiss on the ground that the discretionary function exception barred the claim alleged in the original complaint, but the court dismissed the complaint without prejudice because the "basis for liability [alleged in the original pro se complaint] may have been nothing more than a pleading error." Mem. Op. at 5, reprinted in App. 62. The District Court noted that, in response to the Government's motion to dismiss, Mr. Richardson "broadly declares that he was vaccinated with defective serum, but he does not allege how the serum was defective other than it was double the recommended dose." Id. at 4, reprinted in App. 61. The District Court held that Mr. Richardson could not establish liability based upon the military's decision to administer beyond the recommended dose. See id. at 5, reprinted in App. 62.
The District Court rejected the Government's argument regarding the Feres doctrine, noting that dismissal on this basis would directly conflict with Hunt. See id. at 3, reprinted in App. 60. It also rejected the Government's statute of limitations argument, concluding that the complaint's allegations must be read in Mr. Richardson's favor as to when he first discovered the cause of his alleged injuries. See id.
On May 4, 1998, Mr. Richardson moved for an extension of time to move for leave to file an amended complaint. The District Court denied the motion on May 6, 1998. On May 7, 1998, Mr. Richardson filed a motion for leave to file an amended complaint pursuant to Fed. R. Civ. P. 15(a), requesting leave to add new claims. The proposed amended complaint filed with this motion indicates that Mr. Richardson intended to replace his claim based on double-dosing with a claim based on products liability. See Amended Complaint pp 20, 21, reprinted in App. 80-81. The District Court denied the motion on May 13, 1998, stating that Mr. Richardson must first be granted a motion to alter or amend the judgment pursuant to Fed. R. Civ. P. 59(e) before he could file a motion to amend the complaint. Mr. Richardson filed separate notices of appeal from the order dismissing his case and the order denying his motion for leave to amend. On June 19, 1998, this court consolidated both appeals, and, on February 16, 1999, we appointed amicus curiae to argue in support of Mr. Richardson.
No one doubts that Mr. Richardson's original complaint would properly be dismissed for lack of subject matter jurisdiction, because of the discretionary function exception. See, e.g., Hunt, 636 F.2d at 597 n.44 (). The question is whether Mr. Richardson fairly amended his complaint to add a claim based on products liability and, if so, whether his claim was thereafter properly dismissed.
The District Court's opinion is open to two reasonable interpretations. First, the opinion can be read as dismissing Mr. Richardson's complaint based on his original filing only, disregarding the apparent change of course intended by Mr. Richardson in adding a claim based on defective manufacturing. Second, and less likely, the court's opinion can be read as accepting Mr. Richardson's claim that he was bringing an action based on products liability and dismissing the complaint nevertheless. In either case, we reverse the District Court.
On the record at hand, we hold that the District Court abused its discretion in failing to consider Mr. Richardson's complaint in light of his reply to the motion to dismiss. See Any anwutaku v. Moore, 151 F.3d 1053, 1059 (D.C. Cir. 1998).There are four factors that inform our holding that the District Court erred in refusing to consider Mr. Richardson's reply to constitute an...
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