Suzanne Brown, Personal Representative of the Estate of Kevin Lee Brown, Deceased v. United States of America, Jose Cruz and Ann Cruz v. United States

The issue on this consolidated appeal is whether, under the National Flu Immunization Program of 1976 (“Swine Flu Act”), Pub.L. No. 94-380, 90 Stat. 1113 (codified at 42 U.S.C. §§ 247b(j)-(l) (1976)), and the Federal Tort Claims Act (“Tort Claims Act”), Pub.L. No. 79-601, §§ 401-424, 60 Stat. 812 , 842-47 (1946) (codified in scattered sections of 28 U.S.C.), a serviceman is precluded from recovering damages from the United States for injuries resulting from swine flu inoculation with a vaccine that was allegedly manufactured negligently or defectively because the Veterans’ Benefits Act, 38 U.S.C. § 301 et seq. (1976), provides the exclusive remedy. The governing inquiry here is the applicability of the so-called “Feres doctrine,” which makes the benefits provided under the Veterans’ Benefits Act the exclusive remedy for servicemen where their “injuries arise out of or are in the course of activity incident to service.” Feres v. United States, 340 U.S. 135, 146 , 71 S.Ct. 153, 159 , 95 L.Ed. 152 (1950). The same question was addressed by the D.C. Circuit in Hunt v. United States, 636 F.2d 580 (D.C.Cir.1980), which held that the Feres doctrine and its rationale do not preclude…