ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
Before: SEITZ, Chief Judge, SLOVITER, Circuit Judge, and MCCUNE, District Judge*fn*
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).
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,*fn1 it dismissed the action for want of jurisdiction.
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 therefor 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.*fn2 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.
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 ...