United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 5, 1999 Decided October 22, 1999
No. 98-5176
Roy Dale Richardson,
Appellant
v.
United States of America, et al.,
Appellees
Consolidated with
98-5236
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 Edwards.
Edwards, Chief Judge: 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. s 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 amend-
ed complaint easily satisfied liberal pleading requirements,
for it made clear that Mr. Richardson was not seeking
compensation for tortious acts or omissions of military per-
sonnel, 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.
I. Background
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. Richard-
son 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 disabili-
ty 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 recom-
mended 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) (precluding FTCA
liability for the Government for claims based on injuries that
"arise out of or are in the course of activity incident to
[military] service"). 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. s 2680(a), because Mr. Richardson challenged
discretionary policy-based decisions by asserting that the
military negligently administered a double-dose of the vac-
cine.
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 mili-
tary personnel, but for the "vaccine manufacture's [sic] tor-
tious conduct, conduct that, absent the [Swine Flu] Act, would
give rise to a claim assertable directly against the manufac-
turer." Resp. to Def.'s Mot. to Dismiss at 2, reprinted in
App. 38. Mr. Richardson claimed that the vaccine manufac-
turer 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 (citing
Hunt, 636 F.2d at 599 (holding that the Feres doctrine does
not apply to Swine Flu Act claims alleging injury from
negligently or defectively manufactured vaccine)). Mr. Rich-
ardson also disputed the Government's argument regarding
his compliance with the statute of limitations.
On March 13, 1998, the District Court granted the Govern-
ment'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, reprint-
ed in App. 60. It also rejected the Government's statute of
limitations argument, concluding that the complaint's allega-
tions 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), request-
ing leave to add new claims. The proposed amended com-
plaint 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 judg-
ment pursuant to Fed. R. Civ. P. 59(e) before he could file a
motion to amend the complaint. Mr. Richardson filed sepa-
rate 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 Febru-
ary 16, 1999, we appointed amicus curiae to argue in support
of Mr. Richardson.
II. Analysis
No one doubts that Mr. Richardson's original complaint
would properly be dismissed for lack of subject matter juris-
diction, because of the discretionary function exception. See,
e.g., Hunt, 636 F.2d at 597 n.44 (stating that the "decision of
the military to administer a stronger-than-usual dose" can not
be a basis for liability under the Swine Flu Act). The
question is whether Mr. Richardson fairly amended his com-
plaint 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 manufactur-
ing. 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 com-
plaint nevertheless. In either case, we reverse the District
Court.
A. The District Court's Treatment of Mr. Richardson's Re-
ply to the Motion to Dismiss
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
Anyanwutaku 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 amendment to his original complaint.
First, Mr. Richardson proceeded pro se before the District
Court. Courts must construe pro se filings liberally. See,
e.g., Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per
curiam) (holding allegations contained in a prisoner's pro se
complaint to less stringent standards than pleadings written
by counsel in reversing a dismissal for failure to state a
claim). This point was recently emphasized in Anyanwutaku,
in which the District Court had dismissed a pro se complaint
sua sponte. See 151 F.3d at 1054. The plaintiff had initially
filed a "confusing" complaint that the District Court dis-
missed the same day it was filed. See id. After the dismiss-
al, the plaintiff filed a motion for reconsideration and, subse-
quently, an " 'addendum' " to the motion. See id. The
District Court denied the motion for reconsideration. See id.
at 1055. This court reversed, reading all of the plaintiff's
filings together to conclude that the District Court abused its
discretion by denying the motion for reconsideration of its
dismissal of one of the plaintiff's claims. See id. at 1058-59.
While Anyanwutaku involved the construction of a complaint
rather than amendment, here we similarly find that the
District Court should have read all of Mr. Richardson's filings
together before dismissing this case for lack of subject matter
jurisdiction. See id. at 1059 ("[W]e think the district court
should have permitted his claim, drafted pro se and based on
legitimate factual allegations, to proceed."); see also Pearson
v. Gatto, 933 F.2d 521, 527 (7th Cir. 1991) (applying Haines to
hold that the District Court should have construed a pro se
plaintiff's letter to judge to be an amended complaint); Coo-
per v. Sheriff, Lubbock County, Texas, 929 F.2d 1078, 1081
(5th Cir. 1991) (finding, in an appeal of a Fed. R. Civ. P.
12(b)(6) dismissal, that the magistrate judge should have
considered a pro se litigant's reply to the defendant's answer
as a motion to amend the complaint).
The second consideration guiding our decision is that, at
the time Mr. Richardson tendered his reply to the defendant's
motion to dismiss, he could have amended his claim as of
right because the defendant had filed no responsive pleading
and Mr. Richardson had never before sought amendment.
See Fed. R. Civ. P. 15(a) (granting leave to amend once as "a
matter of course" at any time before a responsive pleading is
served); Harris v. Secretary, United States Dep't of Veterans
Affairs, 126 F.3d 339, 344-45 (D.C. Cir. 1997) (recognizing
that amendments prior to a responsive pleading shall be
freely given under Rule 15(a)). Moreover, courts freely grant
pro se litigants leave to amend. See Moore v. Agency for
Int'l Dev., 994 F.2d 874, 877 (D.C. Cir. 1993). Leave to
amend a complaint should be freely given in the absence of
undue delay, bad faith, undue prejudice to the opposing party,
repeated failure to cure deficiencies, or futility. See Foman
v. Davis, 371 U.S. 178, 182 (1962).
The third factor that informs our decision is that the
District Court clearly understood that Mr. Richardson both
recognized the need for and attempted to make a change to
his original complaint. In response to the motion to dismiss,
Mr. Richardson denied basing his claim on "any military
order" and instead clearly reframed his claim as one sounding
in products liability, arguing that his injuries were caused by
the defective or negligent manufacturing of the vaccine. See
Resp. to Def.'s Mot. to Dismiss at 3-4, reprinted in App. 39-
40. The District Court recognized this, noting that Mr.
Richardson's response to the motion to dismiss "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." Mem. Op. at 4, reprinted in
App. 61. Furthermore, the District Court itself acknowl-
edged that the jurisdictional defect may simply be a matter of
a "pleading error." Id. at 5, reprinted in App. 62.
Our last consideration is the lack of any evidence of preju-
dice to the Government if Mr. Richardson were allowed to
amend the complaint. See Moore, 994 F.2d at 877-78 (noting
that a pro se litigant should be permitted to amend his
complaint to meet pleading requirements prior to dismissal so
long as the defendant is not prejudiced). The Government
has made no argument here that it would have been preju-
diced if the District Court had granted an amendment to Mr.
Richardson's complaint.
These factors, taken together, convince this court that Mr.
Richardson should be permitted to proceed with his claim.
We do not suggest that a District Court must cull through
every filing of a pro se litigant to preserve a defective
complaint. In this case, however, where, in addition to
proceeding pro se, the plaintiff retained the right to amend
his complaint prior to the dismissal, the plaintiff clearly
intended to add a new claim in his lawsuit, the District Court
apparently understood that the plaintiff both needed to and
wanted to do so, and the defendant would not have been
prejudiced by such amendment, we hold that the District
Court should have considered Mr. Richardson's reply to the
defendant's motion to dismiss to be an amendment to his
complaint.
B. The Adequacy of Mr. Richardson's Amended Complaint
As noted above, the District Court's opinion can be read as
accepting Mr. Richardson's reply to the defendant's motion to
dismiss as a de facto amendment to his original complaint, but
then dismissing the case because it found that Mr. Richard-
son made no factual allegation to support his claim except
that the serum was defective for being double the recom-
mended dose. See Mem. Op. at 4, reprinted in App. 61.
Even on this reading, however, we find that the District
Court erred.
Mr. Richardson's amended complaint clearly stated a claim
sufficient to meet the Federal Rule of Civil Procedure's
liberal pleading requirements. Indeed, at oral argument, the
Government's counsel was hard-pressed to contend otherwise.
To survive a motion to dismiss for lack of subject matter
jurisdiction, a plaintiff is not required to plead facts sufficient
to prove his allegations; rather, a court should only dismiss a
complaint for lack of subject matter jurisdiction if "it appears
beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief."
Caribbean Broad. Sys., Ltd. v. Cable & Wireless PLC, 148
F.3d 1080, 1086 (D.C. Cir. 1998) (citations and internal quota-
tion marks omitted). Here, there is no indication that Mr.
Richardson can prove no set of facts entitling him to relief.
In fact, the forms appended to the Federal Rules of Civil
Procedure clearly indicate that Mr. Richardson's complaint
meets liberal pleading requirements. See Fed. R. Civ. P. app.
Form 2(c) (demonstrating requirements for statement of jur-
isdiction founded upon a particular statute); id. Form 9
(demonstrating requirements for a complaint for negligence).
Moreover, as amicus points out, the complaint in Anyan-
wutaku was hardly less conclusory than the claim here. See
Reply Br. of Amicus Curiae at 13. In Anyanwutaku, the
claims found by the court to withstand dismissal alleged that
the plaintiff was "arbitrarily and capriciously denied access to
the said [prison] programs through invidious discrimination"
and that the defendants "invidiously discriminated against the
plaintiff based on race or ethnic origin." Anyanwutaku, 151
F.3d at 1058 (alteration in original) (internal quotation marks
omitted). These claims allege no more facts than does Mr.
Richardson's claim that he was injured by his exposure to a
defectively produced vaccine. See Resp. to Def.'s Mot. to
Dismiss at 3-4, reprinted in App. 39-40.
We note, furthermore, that the discretionary function ex-
ception to the FTCA does not bar Swine Flu Act claims based
on the acts or omissions of the vaccine's provider. See 42
U.S.C. s 247b(k)(2)(A)(ii) (1976) (revised and deleted 1978)
(making the exceptions in 28 U.S.C. s 2680(a) inapplicable to
actions based upon a program participant's act or omission).
In addition, this circuit has held by implication that claims
against the Government that rely on products liability asser-
tions against vaccine providers are permitted by the Swine
Flu Act. See Hunt, 636 F.2d at 596 n.44, 599 (stating that
the Feres doctrine does not bar claims that would render a
vaccine manufacturer liable under local law on a theory of
strict products liability). Therefore, the District Court's basis
for dismissing Mr. Richardson's original complaint based on
the United States military's negligence does not apply to his
amended claim based upon the vaccine manufacturer's defec-
tive production of the vaccine.
We need not consider the propriety of the District Court's
denial of Mr. Richardson's post-dismissal motion for leave to
amend his complaint. Such a motion is typically only granted
where the litigant has first moved to amend or alter the
judgment under Fed. R. Civ. P. 59(e) or 60(b). Mr. Richard-
son did not explicitly invoke either of these rules. Because
we reverse the District Court's decision on other grounds, it
is not necessary to address Rule 59(e) or Rule 60(b).
III. Conclusion
For the reasons stated above, we reverse the District
Court's decision dismissing Mr. Richardson's complaint for
lack of subject matter jurisdiction and remand for proceed-
ings consistent with this opinion.
So ordered.