Schafer v. American Cyanamid Co.

April 6, 1994

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1422

MARK SCHAFER AND MELISSA SCHAFER,
A MINOR BY AND THROUGH
MARK SCHAFER, NATURAL PARENT AND GUARDIAN OF MELISSA
SCHAFER,

Plaintiffs, Appellees,

v.

AMERICAN CYANAMID CO., PARENT OF
LEDERLE LABORATORIES, A DIVISION OF AMERICAN CYANAMID CO.,

Defendant, Appellant.

ERRATA SHEET

The concurring opinion of Judge Stahl should be
attached to the opinion in case number 93-1422 which was
issued March 24, 1994 and should be numbered page 20.

STAHL, Circuit Judge (concurring). While I concur in both

the result and the reasoning of the majority opinion, I

write separately to express my concern about the potential

threat to the vaccine compensation program.

By virtue of the circumscribed scope of our authority and

our inherent institutional limitations, we in the judicial

branch must abide by the presumptions prescribed by

traditional principles of statutory construction. At the

same time, I cannot ignore the fact that, although

compelled by law, the panel's decision heightens the

tension between the two competing purposes of the vaccine

compensation program: holding down vaccine prices by

cutting litigation costs while ensuring that the injured

are adequately compensated. The defendant suggests that

the cost-benefit calculus counsels a different resolution

of the conflict in the circumstances of cases such as the

present one. Specifically, the defendant argues that the

increase in litigation costs associated with compensating a

relatively small group of victims' family members through

state tort systems will place at risk a much larger group

of unvaccinated individuals due to price sensitivity in the

vaccine market. I consider this to be an issue of great

importance, apparently overlooked at the time Congress

drafted the statute. I respectfully suggest that this is

an issue which Congress may wish to revisit.

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 93-1422

MARK SCHAFER AND MELISSA SCHAFER,
A MINOR BY AND THROUGH
MARK SCHAFER, NATURAL PARENT AND GUARDIAN OF MELISSA SCHAFER,

Plaintiffs, Appellees,

v.

AMERICAN CYANAMID CO., PARENT OF
LEDERLE LABORATORIES, A DIVISION OF AMERICAN CYANAMID CO.,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Edward F. Harrington, U.S. District Judge]

Before

Breyer, Chief Judge,

Selya and Stahl, Circuit Judges.

J. Peter Coll, Jr. with whom Charles W. Gerdts, III, Nicole M.

van Ackere, Lawrence H. Cooke, II, Donovan Leisure Newton & Irvine,

Thomas A. Mullen, and Fordham & Starrett were on brief for appellant.

Walter S. Kyle for appellees.

March 24, 1994

BREYER, Chief Judge. The National Childhood

Vaccine Injury Act, 42 U.S.C. 300aa-1 to 300aa-34,

provides a special procedure to compensate those who are

injured by certain vaccines. The Act bars those who accept

an award under that procedure from later bringing a tort

suit to obtain additional compensation. Id. 300aa-21(a).

The question before us in this appeal (under 28 U.S.C.

1292(b)) is whether the Act also bars the family of such a

person from bringing a tort suit to obtain compensation for

their own, related, injuries, in particular, for loss of

companionship or consortium. Assuming that state law

permits such suits, we find nothing in the Act that

explicitly or implicitly bars them. And, we affirm the

similar determination of the district court.

I

Background

A

The Statute

The National Childhood Vaccine Injury Act

represents an effort to provide compensation to those harmed

by childhood vaccines outside the framework of traditional

tort law. Congress passed the law after hearing testimony

1) describing the critical need for vaccines to protect

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children from disease, 2) pointing out that vaccines

inevitably harm a very small number of the many millions of

people who are vaccinated, and 3) expressing dissatisfaction

with traditional tort law as a way of compensating those few

victims. Injured persons (potential tort plaintiffs)

complained about the tort law system's uncertain recoveries,

the high cost of litigation, and delays in obtaining

compensation. They argued that government had, for all

practical purposes, made vaccination obligatory, and thus it

had a responsibility to ensure that those injured by

vaccines were compensated. Vaccine manufacturers (potential

tort defendants) complained about litigation expenses and

occasional large recoveries, which caused insurance premiums

and vaccine prices to rise, and which ultimately threatened

the stability of the vaccine supply.

See generally National Childhood Vaccine Injury

Compensation Act of 1985: Hearing on S.827 Before the Senate

Comm. on Labor and Human Resources, 99th Cong., 1st Sess.

pt. 2 (1985) [hereinafter "Hearings on S.827"]; Vaccine

Injury Compensation: Hearings on H.R.5810 Before the

Subcomm. on Health and the Environment of the House Comm. on

Energy and Commerce, 98th Cong., 2d Sess. (1984)

[hereinafter "Hearings on H.R.5810"]; National Childhood

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Vaccine-Injury Compensation Act: Hearings on S.2117 Before

the Senate Comm. on Labor and Human Resources, 98th Cong.,

2d Sess. (1984) [hereinafter "Hearings on S.2117"]; H.R.

Rep. No. 908, 99th Cong., 2d Sess. (1986) [hereinafter

"Vaccine Act Report"], reprinted in 1986 U.S.C.C.A.N. 6344;

Staff of the Subcomm. on Health and the Environment of the

House Comm. on Energy and Commerce, 99th Cong., 2d Sess.,

Childhood Immunizations (Comm. Print 1986) [hereinafter

"Childhood Immunizations"]; Office of Technology Assessment,

Compensation for Vaccine-Related Injuries (1980)

[hereinafter "OTA Report"]; Dennis J. Hauptly & Mary Mason,

The National Childhood Vaccine Injury Act, 37 Fed. B. News &

J. 452 (1990).

The Vaccine Act responds to these complaints by

creating a remedial system that tries more quickly to

deliver compensation to victims, while also reducing

insurance and litigation costs for manufacturers. The Act

establishes a special claims procedure involving the Court

of Federal Claims and special masters (a system that we

shall call the "Vaccine Court"). 42 U.S.C. 300aa-12. A

person injured by a vaccine may file a petition with the

Vaccine Court to obtain compensation (from a fund financed

by a tax on vaccines). Id. 300aa-11. He need not prove

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fault. Nor, to prove causation, need he show more than that

he received the vaccine and then suffered certain symptoms

within a defined period of time. Id. 300aa-13, 300aa-14.

The Act specifies amounts of compensation for certain kinds

of harm (e.g., $250,000 for death, up to $250,000 for pain

and suffering). Id. 300aa-15(a)(2), (4). And, it

specifies other types of harm for which compensation may be

awarded (e.g., medical expenses, loss of earnings). Id.

300aa-15(a).

At the same time, the Act modifies, but does not

eliminate, the traditional tort system, which Congress

understood to provide important incentives for the safe

manufacture and distribution of vaccines. The Act requires

that a person injured directly by a vaccine first bring a

Vaccine Court proceeding. Id. 300aa-11(a)(2)(A). Then,

it gives that person the choice either to accept the Court's

award and abandon his tort rights (which the Act transfers

to the federal government, id. 300aa-17), or to reject

the judgment and retain his tort rights. Id. 300aa-

21(a), 300aa-11(a)(2)(A)(i). (He can also keep his tort

rights by withdrawing his Vaccine Court petition if the

Court moves too slowly. Id. 300aa-21(b), 300aa-

11(a)(2)(A)(ii).)

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The Act additionally helps manufacturers by

providing certain federal modifications of state tort law.

For example, it forbids the award of compensation for

injuries that flow from "unavoidable side effects," id.

300aa-22(b)(1); it frees the manufacturer from liability for

not providing direct warnings to an injured person (or his

representative), id. 300aa-22(c); it imposes a presumption

that compliance with Food and Drug Administration

requirements means the manufacturer provided proper

directions and warnings, id. 300aa-22(b)(2); it limits

punitive damage awards, id. 300aa-23(d); and it requires

that the trial of any tort suit take place in three phases

(liability; general damages; punitive damages), id. 300aa-

23(a).

The upshot is a new remedial system that interacts

in a complicated way with traditional tort lawsuits.

B

This Case

For present purposes, the relevant facts are

simple. Lenita Schafer's small child, Melissa Schafer,

received an oral polio vaccine distributed by American

Cyanamid in October 1988. Lenita subsequently contracted

polio (she and her family think) from Melissa's vaccine.

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About one year later, in December 1989, all three members of

the Schafer family (Lenita, Melissa, and Lenita's husband,

Mark) petitioned the Vaccine Court for compensation. In

April 1990, Mark and Melissa withdrew their petitions (with

permission of the Vaccine Court) and began this lawsuit

against American Cyanamid, seeking damages under

Massachusetts tort law for loss of Lenita's companionship

and consortium. See 28 U.S.C. 1332 (diversity

jurisdiction); Fletch v. General Rental Co., 421 N.E.2d 67,

70-72 (Mass. 1981). Lenita, who did not withdraw her

petition, eventually accepted a $750,000 award from the

Vaccine Court for her own injuries, thereby giving up her

right to bring a tort action. At that point, American

Cyanamid asked the district court to dismiss Mark's and

Melissa's suit on the ground that Lenita's acceptance of the

Vaccine Court award barred not only a later tort action for

her own injuries, but also a later tort action by family

members for related injuries. The district court denied the

motion. We review that denial under the authority of 28

U.S.C. 1292(b) (permitting appeal of interlocutory orders

raising certain controlling questions of law).

II

The Basic Argument

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Cyanamid concedes that this case focuses upon

Mark's and Melissa's damages, not Lenita's; that Lenita

received Vaccine Court compensation for her own damages, not

Mark's or Melissa's; and that the Act's language explicitly

bars Lenita, but not Mark or Melissa, from bringing a tort

action to recover their own damages (which, we specify, will

not duplicate Lenita's). Nonetheless, it argues that to

permit Mark or Melissa to bring their own tort action (for

related damages) would so seriously interfere with the Act's

basic purposes that we must read the Act as implicitly

barring those actions, just as it explicitly bars Lenita's.

Although Cyanamid's counsel wants to call its argument one

of "interpreting the Act in light of its basic policy," we

believe that "pre-emption" is a better, alternative, label.

The argument seems to amount to a claim that the state law

that permits Mark or Melissa to bring this kind of suit so

significantly interferes with the federal Act's ability to

achieve its important federal purpose that the

Constitution's Supremacy Clause requires the state law to

yield to the federal law's implicit demand. See Michigan

Canners & Freezers Assoc. v. Agricultural Mktg. & Bargaining

Bd., 467 U.S. 461, 469 (1984); Hines v. Davidowitz, 312 U.S.

52, 67 (1941). But, however one characterizes the argument,

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it has two essential elements -- an important federal

purpose and a significant state interference. And, we shall

try to set forth these two elements of Cyanamid's argument

in light of the Act's legislative history, and as

persuasively as possible.

First, an important federal purpose of the Act is

to free manufacturers from the specter of large, uncertain

tort liability, and thereby keep vaccine prices fairly low

and keep manufactures in the market. Vaccine manufacturers

presented Congress with evidence that their tort insurance

and litigation costs had begun to dwarf their vaccine

production revenues. See Hearings on S.827, supra, at 240

(discussing difficulty of obtaining insurance) (statement of

Robert Johnson); Hearings on H.R.5810, supra, at 229

(expected liability costs hundreds of times annual vaccine

sales revenue) (statement of Robert Johnson); Childhood

Immunizations, supra, at 88 (expected insurance premium

increase of 50 to 300 percent). They argued that, as a

result, some manufacturers had discontinued vaccine

production (leaving only a handful of producers), while

others had raised their vaccine prices significantly. See

Childhood Immunizations, supra, at 63 (showing increases in

DPT vaccine from 10 cents to three dollars per dose, and

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polio vaccine from 35 cents to a dollar and a half per

dose).

Evidence in the hearing record indicated that

compensation-related price increases or manufacturer

withdrawal would cause serious harm. Vaccines benefit those

who are vaccinated, and they have public benefits as well --

when parents vaccinate their own children, they also help

stop the spread of a disease that can injure others. And,

even though vaccines themselves cause a small number of

serious injuries or deaths, their widespread use

dramatically reduces fatalities. For example, the DPT

vaccine itself may cause 150 or so incidents of serious

neurological damage and the polio vaccine may itself cause

about five annual incidents of paralysis. See OTA Report,

supra, at 51. But, before widespread vaccination, whooping

cough, for example, killed about 7,500 (mostly) children in

a single year, diphtheria killed about 15,000, and polio

injured, paralyzed, or killed about 57,000. See Childhood

Immunizations, supra, at 1, 6, 14. Thus, despite the price

to be paid in vaccine-caused injuries, widespread

vaccination -- (about 13.5 million annual diphtheria and

whooping cough (DPT) vaccine doses, about 18 million polio

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doses) -- has virtually wiped out these devastating

diseases.

The upshot is that, because vaccines benefit so

many (and harm so few), even small vaccine price increases,

if followed by even a small decline in vaccinations, can

cause more public harm through added disease than the sum-

total of all the harm vaccines themselves cause through

side-effects. See, e.g., Hauptly & Mason, supra, at 452

(recounting how, in Japan, two deaths from DPT side effects

led to withdrawal of the vaccine, which was followed by a

whooping cough epidemic that killed forty-one children).

For this kind of reason, the argument goes, Congress was

importantly motivated not only by the desire effectively to

compensate side-effect victims, but also by the desire to

keep vaccine prices fairly low by reducing compensation

costs. See, e.g., Hearings on S.827, supra, at 5 (remarks

of Sen. Hawkins); Hearings on S.2117, supra, at 5 (statement

of Sen. Grassley); Vaccine Act Report, supra, at 4-7,

reprinted in 1986 U.S.C.C.A.N. at 6345-48.

Second, the availability of a state tort remedy

for relatives of a victim interferes with the Act's efforts

to lower manufacturers' costs. The Act seeks to achieve its

cost-reducing purpose, not by denying compensation to

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victims (indeed, it imposes a tax upon vaccines in order to

fund compensation), but by reducing the litigation and

insurance costs related to lengthy, complex tort procedures

and random large tort awards. The Act therefore imposes

substantive and procedural limitations upon tort actions.

And, more importantly, it discourages victims from bringing

those traditional tort cases by providing fairly generous,

more easily obtainable, Vaccine Court awards. A victim who

obtains such an award may hesitate to give up that bird in

the hand in return for a larger, but more speculative, tort

law award. And, a petitioner to whom the Vaccine Court

gives nothing may see no point in trying to overcome tort

law's yet more serious obstacles to recovery.

But, Cyanamid points out, almost every victim has

a family. And, almost every vaccine-related injury to a

child will adversely affect the life of that family. In

Cyanamid's view, if family members can bring a tort suit for

loss of say, a child's companionship, even after the child

accepts a Vaccine Court award, they will do so.

Cyanamid then says (and this is the most difficult

part of Cyanamid's argument) that to permit a victim's

family to bring a tort law case -- even where the victim

obtains a Vaccine Court award -- threatens seriously to

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undermine the Act's "cost-related" advantages. The result

will be a system in which manufacturers must pay both the

Vaccine Court's easily-obtained compensation awards (through

a tax) and also face large tort claims from family members.

The latter means the very kind of large occasional tort

awards and the kind of litigation costs that Congress hoped

to diminish. Cyanamid concludes that the Act implicitly

must hold family members to the election of the physically-

injured victim. If that victim receives an award and can no

longer pursue a court claim, then neither can the victim's

family.

III

Our Response

Cyanamid's argument is not without force, but

ultimately it does not persuade us, either as a matter of

statutory interpretation or in terms of pre-emption law.

First, one cannot easily interpret the statute as Cyanamid

wishes, for the Act has no language at all that one might

read as creating a bar to the type of suit before us. To

the contrary, the Act subsection that creates the tort

action bar says that it does not apply to this kind of

lawsuit. The language that creates the bar, 300aa-11(a),

says: "[n]o person may bring a civil action for damages"

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(except in accordance with the Act's Vaccine-Court-related

rules) until a Vaccine Court petition "has been filed." It

then states specifically that "this subsection" (i.e. the

subsection with the tort action bar):

applies only to a person who has

sustained a vaccine-related injury or
death and who is qualified to file a

petition for compensation under the

Program.

42 U.S.C. 300aa-11(a)(9) (emphasis added). A person "is

qualified to file a petition" only if that person suffered a

relevant injury or death after he or she "received a vaccine

. . . or contracted polio from another person who received

an oral polio vaccine." Id. 300aa-11(c)(1)(A). That is

to say, unless a person "received a vaccine" or, like Lenita

Schafer, caught polio from someone who did (or is the legal

representative of such a person), he cannot file a petition.

See, e.g., Head v. Secretary of Health and Human Servs., 26

Cl. Ct. 546, 547 n.1 (1992) (parent of injured child cannot

petition except in representative capacity), aff'd, 996 F.2d

318 (Fed. Cir. 1993). And, if he cannot file a petition

with the Vaccine Court, the Act says that its tort suit ban

does not apply to him.

Moreover, this same language suggests that the Act

sees the tort suit procedural bar and Vaccine Court

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compensation as opposite sides of the same coin. Yet the

Act does not permit compensation for injuries to a family

member (of the direct victim who takes the vaccine or

catches polio from a vaccine taker). Indeed, it prohibits:

compensation for other than the health,
education, or welfare of the person who
suffered the vaccine-related injury with
respect to which the compensation is
paid.

Id. 300aa-15(d)(2). And, the Vaccine Court itself has

interpreted this section as forbidding payment for

psychological counseling for a victim's family unless it

directly benefits the victim herself. See, e.g., Huber v.

Secretary of Health and Human Servs., 22 Cl. Ct. 255, 257

(1991); Richardson v. Secretary of Health and Human Servs.,

No. 90-324V, 1991 U.S. Cl. Ct. LEXIS 151, at *18 (U.S.

Claims Ct., Apr. 16, 1991), aff'd, 23 Cl. Ct. 674 (1991);

Neese v. Secretary of Health and Human Servs., No. 89-85V,

1990 U.S. Cl. Ct. LEXIS 333, at *23 (U.S. Claims Ct., Apr.

16, 1991); see also Vire v. Secretary of Health and Human

Servs., No. 90-84V, 1990 U.S. Cl. Ct. LEXIS 513, at *1 n.2

(U.S. Claims Ct., Dec. 28, 1990) (Act does not provide for

compensation of parents of injured child), aff'd, 954 F.2d

733 (Fed. Cir.), cert. denied, 112 S. Ct. 3030 (1992); Pease

v. Secretary of Health and Human Servs., No. 89-98V, 1990

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U.S. Cl. Ct. LEXIS 64, at *5 (U.S. Claims Ct., Feb. 1, 1990)

(same); cf. 42 U.S.C. 300aa-14 (list of compensable

injuries containing no reference to the kind of harm here at

issue).

Second, the Act's legislative history does not

point directly toward the "policy" conclusion that Cyanamid

wishes us to draw. The legislative history says nothing at

all about family members' tort suits. Its discussion of

general purposes, as we have pointed out above, see pp. 2-4,

supra, indicates two major purposes, namely, providing

compensation for victims and maintaining low vaccine costs.

How does Cyanamid's argument take account of the "victim

compensation" objective? Because the Vaccine Court does not

provide a remedy for family members, to accept Cyanamid's

argument would require us to conclude that Congress, without

anyone saying a word about it, intended to deprive family

members of all compensatory remedies. At the same time, the

second leg of Cyanamid's argument -- the claim that

permitting this kind of suit would significantly interfere

with Congress's cost control objective -- has no specific

empirical support in the legislative record; and, the claim

does not prove itself. Given the difficulties of prevailing

in a traditional tort suit, it is, at least, unclear that

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plaintiff families -- particularly families of victims who

have already received Vaccine Act compensation -- will

prevail so often, and obtain verdicts so large, that the

jury awards, or the threat of those awards, would

significantly raise vaccine prices or retard their

distribution.

The legislative record's silence may reflect the

vaccine manufacturers' view that family suits do not pose a

particular practical problem, or the failure of any

interested person to think about the matter, or a calculated

decision by everyone to ignore the issue in the

congressional hearings for fear of upsetting a carefully

crafted compromise. But, regardless of the reason for the

silence, our very uncertainty about how Congress would have

answered the question means that Cyanamid has failed to show

that this kind of action significantly undermines the Act's

given objectives.

Third, to accept Cyanamid's argument -- that the

Schafer family cannot collect both a Vaccine Court award and

loss of consortium tort damages -- would create judicial

inconsistency. The Vaccine Court has held that a parent can

both obtain a loss of consortium "award" from a state court

(or the settlement of a state law claim) and also obtain

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compensation for her vaccinated (and injured) child from the

Vaccine Court. Abbott v. Secretary of Health and Human

Servs., No. 90-1673V 1992 Cl. Ct. LEXIS 473, rev'd on other

grounds, 27 Fed. Cl. 792 (1993); cf. Massing v. Secretary of

Health and Human Servs., 926 F.2d 1133, 1135-36 (Fed. Cir.

1991); Head v. Secretary of Health and Human Servs., 26 Cl.

Ct. 546, 549 (1992), aff'd, 996 F.2d 318 (Fed. Cir. 1993).

The Vaccine Court cases all involve families that brought

the tort suit first, before the child accepted Vaccine Court

compensation. But, it is difficult to find any policy that

would justify permitting a family to bring a suit before the

Vaccine Court awards compensation to a direct victim, but

not after.

Fourth, even were the first three reasons far less

persuasive, a host of legal interpretive doctrines would

prevent us from finding in Cyanamid's favor in respect to

any form of pre-emption. Pre-emption law, for example,

cautions us against finding that a congressional act pre-

empts a state law through silence. Maryland v. Louisiana,

451 U.S. 725, 746 (1981). The negative presumption is even

stronger when the state law at issue creates a remedy

unavailable under federal law. Silkwood v. Kerr-McGee

Corp., 464 U.S. 238, 251 (1984); United Construction Workers

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v. Laburnum Construction Corp., 347 U.S. 656, 663-64 (1954);

Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947).

And, it is virtually conclusive when Congress, in the very

statute at issue, explicitly pre-empts other state law

remedies but not the remedy at issue. See Cipollone v.

Liggett Group, Inc., 112 S. Ct. 2608, 2618 (1992); 42 U.S.C.

300aa-22, 300aa-23 (precluding certain kinds of damages

awards in state law suits; creating three-stage procedure

for trying state law tort actions; specifying the

availability of certain defenses; explicitly "preempt[ing]"

any state law that would prohibit a person from bringing a

tort action not barred by the Act); see also Greenwood Trust

Co. v. Commonwealth of Mass., 971 F.2d 818, 823 (1st Cir.

1992) ("In recent days, the High Court has made it

pellucidly clear that, whenever Congress includes an express

preemption clause in a statute, judges ought to limit

themselves to the preemptive reach of that provision without

essaying any further analysis under the various theories of

implied preemption."), cert. denied, 113 S. Ct. 974 (1993).

We need not rely upon these presumptions, however.

Nor need we rely upon the fact that numerous, rather

analogous, state workers' compensation statutes explicitly

say that they pre-empt consortium actions when it is their

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intent to do so. See, e.g., Ala. Code 25-5-53; Conn. Gen.

Stat. 52-555d; Mass. Gen. L. ch. 152. It is sufficient

that the Act's purposes do not point strongly towards pre-

emption, and the Act's language suggests that pre-emption is

not intended. Consequently, Cyanamid's arguments are better

made to Congress than to this court. We agree with the

district court that the Act, as currently written, does not

bar the suit before us (described on pp. 7-8, supra). And,

its order refusing to dismiss the case, therefore, is

Affirmed.

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STAHL, Circuit Judge (concurring). While I

concur in both the result and the reasoning of the majority

opinion, I write separately to express my concern about the

potential threat to the vaccine compensation program.

By virtue of the circumscribed scope of our

authority and our inherent institutional limitations, we in

the judicial branch must abide by the presumptions

prescribed by traditional principles of statutory

construction. At the same time, I cannot ignore the fact

that, although compelled by law, the panel's decision

heightens the tension between the two competing purposes of

the vaccine compensation program: holding down vaccine

prices by cutting litigation costs while ensuring that the

injured are adequately compensated. The defendant suggests

that the cost-benefit calculus counsels a different

resolution of the conflict in the circumstances of cases

such as the present one. Specifically, the defendant

argues that the increase in litigation costs associated

with compensating a relatively small group of victims'

family members through state tort systems will place at

risk a much larger group of unvaccinated individuals due to

price sensitivity in the vaccine market. I consider this

to be an issue of great importance, apparently overlooked

at the time Congress drafted the statute. I respectfully

suggest that this is an issue which Congress may wish to

revisit.

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