UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


RICHARDSON, ROY DALE

v.

UNITED STATES


98-5176a

D.C. Cir. 1999


*	*	*


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


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


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


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


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


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


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


So ordered.