Schafer v. American Cyanamid Co. ( 1994 )

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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