Christopher Beaty, Jr. v. Fair Acres Geriatric Center

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 28, 2022 Decided August 5, 2022

No. 21-7067

ANNE JEAN CANNON, DECEASED AND ESTATE OF ANNE JEAN

CANNON, BY AND THROUGH JOHN CANNON AND FRANCIS

CANNON, EXECUTORS OF THE ESTATE OF ANNE JEAN CANNON,

APPELLEES

v.

WATERMARK RETIREMENT COMMUNITIES, INC., ET AL.,

APPELLANTS

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(No. 2:21-cv-01451)

Amy Miller argued the cause and filed the briefs for

appellants.

Jake D. Becker argued the cause for appellees. With him

on the brief were Adam R. Pulver, Allison M. Zieve, and Scott

L. Nelson.

2

No. 21-7096

CHRISTOPHER BEATY, JR. AND NICHOLE GARCIA, AS

CO-ADMINISTRATORS OF THE ESTATE OF CHRISTOPHER DAVID

BEATY, DECEASED AND IN THEIR OWN RIGHT,

APPELLEES

v.

FAIR ACRES GERIATRIC CENTER AND DELAWARE COUNTY,

APPELLANTS

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(No. 2:21-cv-01617)

Ilana H. Eisenstein argued the cause for appellants. With

her on the briefs were Ira L. Podheiser and William J. Mundy.

Adam R. Pulver argued the cause for appellees. With him

on the brief were Steven J. Pokiniewski, Michael R. Manara,

Allison M. Zieve, and Scott L. Nelson.

Before: SRINIVASAN, Chief Judge, HENDERSON and

PILLARD, Circuit Judges.

Opinion for the Court filed by Circuit Judge PILLARD.

PILLARD, Circuit Judge: The Public Readiness and

Emergency Preparedness (PREP) Act provides immunity from

federal and state law claims relating to the administration of

certain medical countermeasures during a declared public

health emergency. The Secretary of Health and Human

3

Services (HHS) triggered the PREP Act in response to the

COVID-19 pandemic, limiting suits against covered persons

who administer covered countermeasures like drugs or medical

devices to treat the disease. Two nursing homes bring

interlocutory appeals to this court from orders in two separate

cases in the United States District Court for the Eastern District

of Pennsylvania. The plaintiff estate in each case claims that a

defendant nursing home failed to provide adequate care and

should therefore be held liable for the resident’s death from

COVID-19. The district courts denied the defendants’ motions

to dismiss based on PREP Act immunity. Defendants invoke a

provision of the PREP Act that they claim gives us jurisdiction

over these appeals. See 42 U.S.C. § 247d-6d(e)(10).

These cases raise the common threshold question whether

42 U.S.C. § 247d-6d(e)(10) empowers us to hear interlocutory

appeals from decisions of out-of-circuit district courts rejecting

assertions of PREP Act immunity. We conclude that the PREP

Act confers interlocutory appellate jurisdiction on this court

only from orders of the U.S. District Court for the District of

Columbia (D.D.C.) denying motions to dismiss or for summary

judgment in willful misconduct cases—a distinct, limited cause

of action that subsection 247d-6d(d) of the PREP Act excepts

from its broad grant of immunity and channels to the federal

district court here. Because PREP Act subsection 247d-

6d(e)(10) does not authorize interlocutory appeals to this court

from orders of district courts elsewhere allowing other types of

claims to proceed despite assertions of PREP Act immunity,

we dismiss the appeals.

BACKGROUND

I. PREP Act Immunity

Congress enacted the PREP Act in 2005 “[t]o encourage

the expeditious development and deployment of medical

4

countermeasures during a public health emergency” by

allowing the HHS Secretary “to limit legal liability for losses

relating to the administration of medical countermeasures such

as diagnostics, treatments, and vaccines.” 1 The Act provides

“covered person[s]” with “immun[ity] from suit and liability

under Federal and State law with respect to all claims for loss

caused by, arising out of, relating to, or resulting from the

administration to or the use by an individual of a covered

countermeasure if a declaration” by the Secretary under the

PREP Act “has been issued with respect to such

countermeasure.” 42 U.S.C. § 247d-6d(a)(1). The immunity

is triggered by a declaration from the Secretary identifying the

threat to public health, the period during which immunity is in

effect, and other particulars. Id. § 247d-6d(b).

The Act defines the types of “covered person” and

“covered countermeasure” eligible for immunity. Id. § 247d-

6d(i)(1), (2). A court should deny the immunity if, for

example, the defendant is not a covered person, the measure

administered is not covered, or the claim otherwise falls

beyond the scope of the Secretary’s declaration. Even as

correctly applied, PREP Act immunity cuts off forms of relief

that might otherwise have been available to people harmed by

diagnostics, treatments, or vaccines. Cognizant of that effect,

Congress also established a “Covered Countermeasure Process

Fund” to compensate for such harms. Id. § 247d-6e(a).

The PREP Act also includes one exception to its grant of

immunity for covered countermeasures administered by

covered persons: In subsection (d), the Act provides for “an

1

KEVIN J. HICKEY, CONG. RSCH. SERV., LSB10443, THE PREP

ACT AND COVID-19, PART 1: STATUTORY AUTHORITY TO LIMIT

LIABILITY FOR MEDICAL COUNTERMEASURES 1 (updated Apr. 13,

2022), https://crsreports.congress.gov/product

/pdf/LSB/LSB10443; see also 42 U.S.C. §§ 247d-6d, 247d-6e.

5

exclusive Federal cause of action against a covered person for

death or serious physical injury proximately caused by willful

misconduct.” Id. § 247d-6d(d)(1). The immediately following

provision, subsection (e), identifies the procedures for

subsection (d) willful misconduct suits. The first nine

paragraphs of subsection (e) describe the carefully limited

procedural path that remains open to a plaintiff bringing a

willful misconduct claim against a covered person. For

example, such actions are initially assigned to a panel of three

judges, must be filed in the D.D.C., and are subject to special

pleading, discovery, and damages limitations. Id. § 247d-

6d(e)(1)-(9). Subsection (e)’s last paragraph, (e)(10), speaks to

the right of a defendant to take “an interlocutory appeal” to this

court “within 30 days of an order denying a motion to dismiss

or a motion for summary judgment based on an assertion of the

immunity from suit conferred by subsection (a).” Id. § 247d-

6d(e)(10). That final paragraph is at the core of this appeal:

Plaintiffs contend that (e)(10), like the rest of subsection (e),

applies only to willful misconduct cases brought in D.D.C.

pursuant to the subsection (d) immunity exception, whereas

defendants assert that it also authorizes immediate appeal here

from orders by any court anywhere allowing a claim to proceed

over a defendant’s PREP Act objection.

In March 2020, the Secretary triggered PREP Act

immunity to encourage the government, the medical

profession, and other key actors to take countermeasures

against the novel COVID-19 coronavirus. See Declaration

Under the Public Readiness and Emergency Preparedness Act

for Medical Countermeasures Against COVID-19, 85 Fed.

Reg. 15,198, 15,202 (Mar. 17, 2020). In that declaration, the

Secretary recommended “the manufacture, testing,

development, distribution, administration, and use of” covered

countermeasures, such as drugs, devices, and vaccines “used to

treat, diagnose, cure, prevent, or mitigate COVID-19.” Id. at

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15,201-02. He put the immunity provision in effect through

October 2024 and included in the declaration the statutorily

required content. Id. at 15,201-03 (citing 42 U.S.C. § 247d-

6d). The Secretary has since amended the declaration several

times. 2

II. Factual and Procedural Background

The defendants in both cases appeal orders of the District

Court for the Eastern District of Pennsylvania denying their

motions to dismiss. We take the following factual allegations

from the plaintiffs’ complaints as true. See Vila v. Inter-Am.

Inv., Corp., 570 F.3d 274, 278 (D.C. Cir. 2009).

A. Cannon v. Watermark Retirement Communities,

Inc.

In January 2020, Anne Jean Cannon was admitted to Blue

Bell Place, a Pennsylvania senior living community operated

by Watermark Retirement Communities, Inc., and affiliated

entities, doing business as Blue Bell Place (Watermark). About

three weeks into her stay at the facility, Cannon’s family began

noticing dramatic changes in her treatment. For example, the

family saw indications that she was not regularly bathed or

provided changes in clothing, and observed that the facility had

failed to implement a protocol to protect Cannon from falling

after she had suffered two falls. Worse still, the family

suspected, based on what Blue Bell Place’s Executive Director

termed “suspicious” bruising and on a relative’s observation

2

See Public Readiness and Emergency Preparedness Act, Office of

the Assistant Sec’y for Preparedness & Response, U.S. Dep’t of

Health & Hum. Servs., https://aspr.hhs.gov/legal/PREPact/Pages/

default.aspx (collecting amendments).

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that Cannon was “roughed up” during changing, that Blue Bell

staff were physically mistreating her.

In April 2020, Cannon tested positive for COVID-19 but

manifested no symptoms. Despite Cannon’s lack of symptoms,

a nurse assistant at Blue Bell called Cannon’s son to inform

him that Blue Bell planned to treat Cannon with the

experimental drug hydroxychloroquine for five days. At the

time, this use of hydroxychloroquine was conditionally

authorized for a brief period for emergency use to treat

COVID-19, but only in a hospital setting for symptomatic

patients who were ineligible for a clinical trial. Cannon had

previously been diagnosed with atrial fibrillation, and

hydroxychloroquine was known to cause adverse reactions in

patients with heart issues. Cannon’s son, who was her medical

power of attorney, expressly declined Blue Bell’s proposal to

treat her with the drug.

Staff at Blue Bell nevertheless administered Cannon

hydroxychloroquine for five days, beginning April 22. Three

days into her treatment, Cannon began complaining of

gastrointestinal distress, headaches, and other adverse

reactions. On the fifth day, Cannon’s family found her lying

on the floor in pain: She could barely move, was confused, and

was incapable of holding a conversation. Cannon died on May

4th, reportedly of a cardiac event and COVID-19.

Cannon’s estate sued the defendant facility’s owners in the

Montgomery County, Pennsylvania Court of Common Pleas,

alleging she had suffered abuse and neglect at the facility.

Among other things, the estate alleged nonconsensual

administration of hydroxychloroquine. Watermark removed

the action to the District Court for the Eastern District of

Pennsylvania.

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The operative complaint contains five Pennsylvania state

law causes of action for negligent, grossly negligent, careless,

and reckless actions, including failure to ensure adequate

hygiene, protect Cannon from abuse, and provide adequate

COVID-19 treatment, as well as the administration of

hydroxychloroquine without consent and against her legal

proxy’s expressed wishes. Watermark moved to dismiss the

complaint, asserting PREP Act immunity. Watermark argued

that the Cannon estate’s claims relate to the administration of

hydroxychloroquine, which they maintain is a covered

countermeasure under the statute. The district court denied the

motion without an opinion. Watermark then filed a notice of

appeal to this court, claiming a right to interlocutory appeal

under the PREP Act, 42 U.S.C. § 247d-6d(e)(10).

The district court issued a memorandum opinion to

supplement its order. Cannon v. Watermark Ret. Cmtys., Inc.,

No. 21-1451, 2021 WL 3033762, n.1 (E.D. Pa. July 19, 2021).

The court explained, among other things, that the emergency

use authorization for hydroxychloroquine was limited to

patients who were hospitalized with COVID-19 and for whom

a clinical trial was not available. Id. at *3. Because Cannon

was neither hospitalized nor evaluated for a clinical trial, the

court concluded that Watermark’s “administration of

hydroxychloroquine sulfate does not fall within the clear,

explicit, and limited scope of the drug’s FDA emergency use

authorization,” so “the administration of the treatment as

Defendants used it cannot be considered a covered

countermeasure because it was not ‘authorized for

investigational or emergency use . . .’ as required by the PREP

Act.” Id. (citation omitted) (emphasis in original). The estate

did not assert that the administration of hydroxychloroquine, if

it were a covered countermeasure, fell within the willful

misconduct exception from PREP Act immunity.

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B. Beaty v. Fair Acres Geriatric Center

Fair Acres Geriatric Center is a long-term nursing care

facility located in Pennsylvania and operated by Delaware

County, Pennsylvania. Christopher David Beaty was a resident

of Fair Acres for about fifteen years before the COVID-19

pandemic took hold in Spring 2020.

Due to comorbidities, Beaty was at heightened risk of

serious illness and death from COVID-19. On May 29, 2020,

Fair Acres proactively tested both Beaty and his roommate for

COVID-19. On June 1, Beaty’s roommate began exhibiting

symptoms of the disease. Despite those symptoms and Beaty’s

vulnerability, however, Fair Acres kept them in the same room

while they awaited their test results. Later the same day, Beaty

developed a fever. On June 2, Beaty tested negative, but

Beaty’s roommate tested positive and was moved from their

room. On June 3, Beaty’s health began a sharp decline. He

was admitted to the hospital that day, where he tested positive

for COVID-19 and was diagnosed with several serious health

conditions, including pneumonia and acute respiratory failure.

Beaty died on June 6 due to complications from COVID-19.

Beaty’s estate and family members sued Fair Acres and

Delaware County in the U.S. District Court for the Eastern

District of Pennsylvania. They alleged that Fair Acres’

“negligent, grossly negligent, reckless, and wanton acts,

omissions, and occurrences” caused Beaty’s death. Compl.

¶ 46; see id. ¶ 58. Plaintiffs also alleged a broader failure by

Fair Acres to prevent the spread of COVID-19 in its facility.

Fair Acres, they observed, had failed to contain the virus: By

June 2020, it had 222 confirmed resident cases and 94

confirmed employee cases of COVID-19. Compl. ¶¶ 55-58.

Plaintiffs claimed that Fair Acres staff had failed to properly

use personal protective equipment, ensure social distancing,

10

create a sanitary environment, establish policies to isolate sick

residents, and routinely test residents and staff. They asserted

that Fair Acres had a duty to comply with various statutes and

regulations that they claimed are enforceable under 42 U.S.C.

§ 1983 against Delaware County, which owns and operates Fair

Acres. The complaint includes two section 1983 claims—one

for wrongful death and a parallel survivors’ claim on behalf of

Beaty’s family.

Fair Acres and Delaware County moved to dismiss. Most

relevant here, they argued that the complaint is barred by PREP

Act immunity because, they say, the claims relate to the use of

a covered countermeasure—the test used to diagnose Beaty and

his roommate—and the non-use of covered countermeasures

such as personal protective equipment. They also argued that

the complaint failed to adequately allege a violation of

section 1983.

The district court denied the motion, holding that the

PREP Act does not apply to the Beaty estate’s claims. Beaty v.

Delaware County, No. 21-1617, 2021 WL 4026373, at *1-2

(E.D. Pa. Aug. 5, 2021). Citing other district courts that had

reached similar conclusions, the court determined that the term

“covered countermeasure” does not include social distancing

or quarantining, nor a defendants’ failure to use

countermeasures that are covered if used. Id. at *2. So, for

example, the court found the claims that Fair Acres failed to

adequately distance Beaty from his sick roommate or

implement adequate protocols beyond the scope of the PREP

Act. Id. It also held that the tests Fair Acres administered to

Beaty and his roommate lacked a causal relationship to Beaty’s

death, id., and rejected defendants’ motion-stage section 1983

defenses, id. at *3.

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* * *

Each set of defendants filed a notice of appeal to this court,

invoking the PREP Act, 42 U.S.C. § 247d-6d(e)(10), as the sole

basis for our interlocutory review.

DISCUSSION

The defendants in both cases ask us to reverse decisions of

out-of-circuit district courts that denied motions to dismiss

asserting PREP Act immunity. The plaintiffs defend the

district court rulings, but first argue that we lack jurisdiction to

hear these interlocutory appeals. We hold that we lack

appellate jurisdiction, so we do not reach the parties’ merits

arguments.

There are two baseline rules the defendants need to

overcome if we are to hear their appeals. First, “denials of

motions to dismiss” typically do not constitute “final

decisions” and thus “are generally not reviewable.” Oscarson

v. Off. of Senate Sergeant at Arms, 550 F.3d 1, 2 (D.C. Cir.

2008) (quoting 28 U.S.C. § 1291). Second, appeals taken from

district courts generally go “to the court of appeals for the

circuit embracing the district.” 28 U.S.C. § 1294(1). Appeals

from orders of the District Court for the Eastern District of

Pennsylvania ordinarily are heard by the Third Circuit, not the

D.C. Circuit.

The defendants confront both jurisdictional obstacles with

a single response: They argue that paragraph (e)(10) of the

PREP Act, 42 U.S.C. § 247d-6d(e)(10), overrides those general

rules and gives us jurisdiction over these appeals. They are

mistaken. We hold that paragraph (e)(10) supports

interlocutory appeal only in a particular subset of PREP Act

cases not at issue here: willful misconduct claims excepted

from PREP Act immunity. See id. § 247d-6d(d). It does not

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authorize interlocutory appeals from orders otherwise allowing

claims over objections from defendants that they are

immunized by the Act. We accordingly lack jurisdiction and

dismiss both appeals.

I.

The PREP Act’s text and structure make clear that

defendants cannot rely on the disputed provision to bring their

interlocutory appeal to this court. Cf. Territory of Guam v.

United States, 141 S. Ct. 1608, 1613 (2021) (interpreting

statutory provision “within the specific context of” the entire

subsection (internal citation omitted and formatting modified)).

The Act, codified at 42 U.S.C. § 247d-6d, is organized into

five relevant subsections. Subsection (a) establishes the

immunity from suit and sets out the scope of the protection;

subsection (b) explains the role and requirements of the HHS

Secretary’s declaration triggering the Act; subsection (c)

defines “willful misconduct”; subsection (d) creates an

exception to PREP Act immunity for suits based on acts of

willful misconduct; and subsection (e)—entitled “Procedures

for suit”—establishes the procedures for excepted subsection

(d) willful misconduct suits. See id. § 247d-6d(a)-(e)

(subsections (f) through (i) are not directly relevant here).

Again, the interlocutory appeal provision at the heart of

this dispute appears at the end of subsection (e). Paragraphs 1

through 9 of subsection (e) each specifies that it applies to any

“action under subsection (d).” Id. § 247d-6d(e)(1)-(9).

Paragraph 10 (entitled “Interlocutory appeal”) provides that:

The United States Court of Appeals for the District of

Columbia Circuit shall have jurisdiction of an

interlocutory appeal by a covered person taken within

30 days of an order denying a motion to dismiss or a

13

motion for summary judgment based on an assertion

of the immunity from suit conferred by subsection (a)

or based on an assertion of the exclusion under

subsection (c)(5).

Id. § 247d-6d(e)(10). (Subsection (c)(5) excepts from willful-

misconduct liability certain regulated activity of a

manufacturer or distributor that is not at issue here).

Notably absent from paragraph (e)(10)—in contrast to

paragraphs (e)(1) through (e)(9)—are words limiting (e)(10)’s

applicability to any “action under subsection (d).” It is on that

absence that defendants rest their appeal. No one disputes that

we have jurisdiction over appeals from final judgments of the

D.D.C. dismissing putative subsection (d) willful misconduct

claims as not properly within that exception so barred by PREP

Act immunity. See 28 U.S.C. § 1291. And all agree that

paragraph (e)(10) gives us interlocutory appellate jurisdiction

when the D.D.C. decides that otherwise covered persons

administering otherwise covered countermeasures lack PREP

Act immunity due to the willful misconduct exception. But

defendants read paragraph (e)(10) as vesting this court with

interlocutory appellate jurisdiction over far more. They

contend we must entertain interlocutory appeals from orders—

of any federal trial court anywhere in the United States (and

perhaps of any state court)—holding that other, non-

willfulness claims are not covered by PREP Act immunity.

Defendants’ reading would grant this court an unprecedented

and impracticable supervisory role that the statute does not

support.

We conclude that, “when properly read in sequence as

integral parts of a whole,” paragraph (e)(10) plainly is part of

the “family of [subsection (d) willful misconduct procedural]

provisions.” Guam, 141 S. Ct. at 1613 (internal citation

14

omitted and formatting modified). As already noted,

subsection (e) lays out a set of carefully controlled pretrial and

trial procedures for subsection (d) willful misconduct cases,

which it channels to the D.D.C. The first nine provisions set

out those procedures in detail. The fact that subsection (e)

generally “centers on” subsection (d) willful misconduct cases

“is the first clue that” the interlocutory appeal provision is also

“concerned only with” such cases. Id. at 1612.

The text of subsections (d)(2) and (e) support the

conclusion that the interlocutory appeal provision is limited to

willful misconduct cases. Titles offer clues as to statutory

meaning. See Guam, 141 S. Ct. at 1612. Subsection (d)(2) is

titled “Persons who can sue,” and subsection (e), “Procedures

for suit,” immediately follows to spell out the procedures such

persons may use. 42 U.S.C. § 247d-6d(d)(2), (e). The “suit”

referenced is “[a]ny action under subsection (d),” a kind of case

that may be brought only in the D.D.C. 42 U.S.C. § 247d-

6d(e)(1).

The ensuing subsection (e) provisions bolster the title’s

indication that (e)(10)’s jurisdictional grant is limited to willful

misconduct cases. Under paragraph (e)(1), a plaintiff may file

such a suit exclusively within the district court already under

our jurisdiction. Paragraph (e)(5) provides that subsection (d)

willful misconduct actions are initially assigned to a three-

judge panel for purposes of considering motions to dismiss and

for summary judgment. And if the panel denies such a motion,

discovery is stayed under paragraph (e)(6) pending an

interlocutory appeal. The interlocutory appeal provision,

subsection (e)(10), allows for appeals from denials of that same

set of dispositive motions.

Strikingly, paragraph (e)(6) explicitly tethers the

interlocutory appeal provision to subsection (d) cases: It

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provides for an automatic discovery stay “[i]n an action under

subsection (d) . . . in the event a covered person files an

interlocutory appeal from the denial of [a motion to dismiss],

before the court of appeals has ruled on such appeal.” 42

U.S.C. § 247d-6d(e)(6). Outside of subsection (e)(10) itself,

that is the only reference to interlocutory appeals in the PREP

Act, and it expressly applies only to subsection (d) cases.

Reading paragraph (e)(10) as confined to interlocutory appeals

in subsection (d) willful misconduct cases thus treats

subsection (e) as a coherent whole. It grants the right of

interlocutory appeal referenced in paragraph (e)(6) with respect

to the dispositive motions mentioned in paragraph (e)(5)—but

it does so only in the subsection (d) willful misconduct suits

described in the preceding provisions.

It makes sense that paragraph (e)(10) does not expressly

state its application to any “action under subsection (d).” It is

the only paragraph primarily directed at defendants in willful

misconduct cases. Paragraphs (1) through (9), which are

explicitly limited to actions under subsection (d), inform

plaintiffs of special requirements to plead and prove such a

case. They tell the plaintiff where to file, which law will apply,

how to plead the elements of her claim, who will hear her case,

how to access discovery, the limits on any award she wins, and

how to avoid sanctions. 42 U.S.C. § 247d-6d(e)(1)-(9). It is

natural for Congress to explain to the party driving the

litigation that if she is pursuing something she wishes to

characterize as an “action under subsection (d),” id., special

rules apply.

Paragraph (e)(10), in contrast, speaks to the defendant’s

opportunity for immediate appeal. And, from the perspective

of a defendant looking to file such an appeal, the very reason it

would make use of paragraph (e)(10) is because it thinks the

case, rightly viewed, is not an “action under subsection (d)” so

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should be barred by PREP Act immunity. The point of the

defendant’s appeal would be to argue that the rigorous

requirements to plead or prove willful misconduct have not

been met. It stands to reason that Congress excluded from

paragraph (e)(10) the characterization present in the prior nine

paragraphs, because including it would beg the very question

defendants would be pressing on a paragraph (e)(10) appeal:

whether the trial court correctly characterized the case as an

“action under subsection (d)” in allowing it to proceed as such.

Territory of Guam v. United States, in which the Supreme

Court faced a similar statutory interpretation question to this

one, confirms our reading. There, the Court interpreted 42

U.S.C. § 9613(f)(3)(B) of the Comprehensive Environmental

Response, Compensation, and Liability Act of 1980

(CERCLA), “which allows ‘[a] person who has resolved its

liability to the United States or a State’ in a settlement to seek

‘contribution’ . . . from another responsible individual. Guam,

141 S. Ct. at 1611 (quoting 42 U.S.C. § 9613(f)(3)(B)). “The

question [wa]s whether a party must resolve a CERCLA-

specific liability in order to trigger this right, or whether a

broader array of settlements involving environmental liability

will do.” Id.

Guam and the United States had entered into a consent

decree regarding a dump site on Guam. Id. The decree fully

settled the United States’ Clean Water Act claims against

Guam, but not any other potential claims—most importantly,

no CERCLA claim. Id. The issue before the Court was

whether Guam had a viable contribution claim against the

United States under section 9613(f)(3)(B) of CERCLA for the

United States’ prior use of the dump site. Id. at 1611-12. Due

to the unusual posture of the case, it was the United States—

not Guam—arguing that Guam had a possible contribution

claim against it. Id. at 1612. The United States’ argument,

17

parallel to defendants’ here, rested on a lack of language in that

provision limiting to CERCLA settlements the type of

resolution that would trigger contribution rights. Id. at 1615.

Guam was, under the provision’s text viewed in isolation, “[a]

person who has resolved its liability to the United States” and

thus entitled to seek contribution. But the Court held to the

contrary. Reading the disputed text within its statutory context,

it concluded that “CERCLA contribution requires resolution of

a CERCLA-specific liability.” Id. at 1611. Because the earlier

settlement resolved only Clean Water Act claims, not

CERCLA claims, the Court held that the contribution provision

did not apply. Id. at 1615.

Other provisions in CERCLA are expressly limited to

CERCLA claims, whereas the disputed settlement-and-

contribution provision lacked any such language. Id. at 1614-

15. The United States pointed to that absence to argue that the

contribution provision was best read to reference a broader

array of settlements, encompassing the parties’ Clean Water

Act consent decree. Id. at 1615. The Court nonetheless held

that only CERCLA settlements triggered contribution rights.

Id. Rejecting an invitation to draw a negative implication from

the limiting words’ absence from the contribution provision, as

defendants would have us do here, the Court instead considered

the “totality of” the subsection, in which other provisions,

including the first one, were expressly limited to CERCLA

contributions. Id. at 1612. The Court stressed that the disputed

contribution provision appeared within the larger subsection,

“which outlines the broader workings of CERCLA

contribution.” Id. at 1613. Any “effort to tear” the provision

at issue “away from its companions based on a negative

implication falter[ed] in light of the other strong textual links

among them.” Id. at 1615.

18

The statute at issue here has the same basic structure as the

one in Guam. Both set forth sequentially applicable provisions

as part of an interconnected decisional framework. And this

case, like Guam, calls for interpretation of a section drafted as

an itemized list in which the disputed provision lacks a qualifier

expressly included in one or more earlier provisions, even as

the disputed provision benefits from other textual and structural

cues showing its role within the confines of the section in

which it appears. Guam therefore shows how the PREP Act’s

interlocutory appeal provision should be understood as part of

a “family of . . . provisions” that are “properly read in sequence

as integral parts of a whole” centered on the pursuit of and

defense against willful misconduct cases. Id. at 1613

(formatting modified and internal citation omitted).

In sum, here as in Guam the disputed provision is of a

piece with its textual neighbors. In both cases, an initial

provision serves as an anchor for the ensuing provisions,

identifying the class of cases relevant to them all even where

the disputed provision does not reiterate the limitation. See id.

at 1612. Further, as the Court in Guam observed, “[a]

contribution suit does not exist in a vacuum,” but is instead

aimed at apportioning specific forms of liability—most

obviously, CERCLA liability. Id. at 1612. So, too, an

interlocutory appeal right under the PREP Act does not exist in

a vacuum, but provides for review of orders in a specific kind

of suit—a suit sought to be pursued, as described in the

preceding paragraphs, under the willful misconduct exception

for persons and conduct otherwise immunized. Finally, both

cases concern language that gains coherence by reference to

other pieces of the statutory regime. In Guam, the Court

considered that the provision at issue used a familiar phrase

from other CERCLA provisions and included an “express

cross-reference to another CERCLA provision.” Id. Here,

paragraph (e)(6)’s reference to interlocutory appeals only in the

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context of subsection (d) suits suggests we should understand

that limitation to apply to paragraph (e)(10). As they did in

Guam, these various textual and structural features defeat an

expansive reading of the provision at issue—here, paragraph

(e)(10). See id. at 1615.

II.

The defendants ask us to cast aside these strong textual and

contextual indicia and focus solely on the interlocutory appeal

provision itself. They note that paragraph (e)(10)—unlike the

prior nine paragraphs—lacks language expressly limiting it to

subsection (d) cases. And “[w]here Congress includes

particular language in one section of a statute but omits it in

another section of the same Act, it is generally presumed that

Congress acts intentionally and purposely in the disparate

inclusion or exclusion.” Russello v. United States, 464 U.S. 16,

23 (1983) (internal citation omitted). So, the argument goes,

the non-parallelism of paragraph (e)(10) and the preceding nine

paragraphs implies that (e)(10) is not confined to appeals from

orders denying immunity under the willful misconduct

exception, but grants us jurisdiction over this “interlocutory

appeal by a covered person taken within 30 days of an order

denying a motion to dismiss . . . based on an assertion of the

immunity from suit conferred by subsection (a).” In other

words, the defendants would have us hold that the provision

applies to all denials of motions to dismiss for PREP Act

immunity, not just those in willful misconduct cases under

subsection (d).

That argument fails for two reasons already discussed.

First, the phrase “an action under subsection (d)” is included

only in the paragraphs speaking to the plaintiff who seeks to

frame her case as one fitting within that exception. It is

sensibly not reiterated in the final paragraph, directed to

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defendants for whom the interlocutory appeal is a chance to

argue for immunity precisely on the ground that the case should

not be accepted as “an action under subsection (d).” A second

reason to reject the defendants’ reading is the stiff headwind it

faces from the Supreme Court’s reasoning in Guam, which, as

already discussed, eschewed the kind of negative implication

on which defendants’ appeal depends.

The defendants’ remaining statutory arguments are easily

rejected. The Beaty defendants argue that Congress could not

have meant to limit paragraph (e)(10) to willful misconduct

claims because such claims are an exception to PREP Act

immunity, so defendants cannot make “an assertion of the

immunity conferred by subsection (a)” in that posture. They

claim that such a holding would therefore nullify one of the

statute’s bases for interlocutory appeal. 42 U.S.C. § 247d-

6d(e)(10). We are unpersuaded. As we explained above, when

a defendant brings an interlocutory appeal pursuant to

paragraph (e)(10), its position is precisely that the trial court

was wrong to deny PREP Act immunity. More concretely, an

appeal from a trial court’s order holding that the plaintiff

pleaded or presented evidence sufficient to warrant further

proceedings on the willful misconduct issue is an “assertion of

the immunity from suit conferred by subsection (a).” A willful

misconduct claim under subsection (d) requires that the

defendant be a covered person who used a covered

countermeasure, conditions that would trigger subsection (a)

immunity for a defendant who successfully appeals an order

allowing willful misconduct proceedings. Our understanding

of paragraph (e)(10) readily squares with the provision’s

reference to assertions of PREP Act immunity.

The Beaty defendants also argue that our reading renders

superfluous paragraph (e)(10)’s designation of this court to

hear interlocutory appeals in willful misconduct cases because

21

it goes without saying that we are the appropriate court of

appeal from the D.D.C., to which the PREP Act assigns all

willful misconduct claims. But there is good reason for

Congress’s clarification. Paragraph (e)(10) appeals are unusual

in coming from three-judge trial courts. 42 U.S.C. § 247d-

6d(e)(5). And ordinarily, appeals from three-judge district

courts go directly to the Supreme Court per 28 U.S.C. § 1253.

Absent Congress’s inclusion of paragraph (e)(10) displacing

section 1253, there might be ambiguity as to where to bring the

appeal.

Finally, the defendants contend that our holding leads to

the perverse result of allowing interlocutory appeals in willful

misconduct cases, but not in garden-variety tort suits. As an

initial matter, the defendants’ premise—that interlocutory

appeals would not be authorized from orders allowing the latter

type of claims to proceed—is not established. The purported

anomaly defendants assert would not arise if grounds apart

from paragraph (e)(10), such as 28 U.S.C. § 1292(b) or the

collateral order doctrine, see Cohen v. Beneficial Industrial

Loan Corp., 337 U.S. 541 (1949), support interlocutory appeal

to the appropriate circuit court from orders denying PREP Act

immunity in those other types of cases.

In any event, it is entirely coherent to read the PREP Act

as specifying interlocutory appeal rights only from orders

allowing willful misconduct claims to proceed, thereby

overriding the immunity that would otherwise apply. In

providing for a willful misconduct exception, Congress

included detailed forum, discovery, pleading, and proof-of-

scienter provisions cabining that exception to prevent it from

swallowing the rule. 42 U.S.C. § 247d-6d(e)(1)-(9). None of

those heightened requirements applies to claims that evade

PREP Act immunity, not due to the subsection (d) exception,

but because the Act does not apply at all. Congress’s decision

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to specially allow interlocutory appeals in willful misconduct

cases is of a piece with the other constraints it imposed only on

that limited exception.

By contrast, defendants advocate an outcome that would

be unprecedented and serve no discernable purpose. None of

the defendants has offered any explanation why, insofar as non-

willful misconduct claims are concerned, Congress would have

intended appeals of decisions denying immunity-based

motions to dismiss or for summary judgment to come to our

court when appeals from decisions granting those same

motions are routinely heard in the regional circuits. Congress’s

assignment of a particular set of cases to a single circuit court

is typically done to encourage the development of a uniform

body of law on that subject matter. For example, the Federal

Circuit has jurisdiction over appeals from both interlocutory

and final decisions relating to patents. 28 U.S.C.

§§ 1292(c)(1), 1295(a)(1). Similarly, EPA’s nationally

applicable air quality regulations are reviewed exclusively in

this court to ensure uniform national standards. See 42 U.S.C.

§ 7607(b)(1). Such schemes promote the consistent

interpretation and application of law on the relevant issues. But

defendants’ approach here does the opposite. Bifurcating the

adjudication of PREP Act immunity issues based on whether a

district court grants or denies a motion invites discord among

the courts of appeals on identical questions and subjects trial

courts to potentially conflicting binding precedents.

Defendants’ contention that the Act channels interlocutory

appeals even in non-willful misconduct cases to this court to

protect a party from “the burden of defending a lawsuit relating

to its administration of covered countermeasures,” Beaty Reply

Br. at 6, accurately describes the general purpose of immediate

appeals. But it does not explain why Congress would direct

them here. Defendants contend Congress chose this court “as

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the uniform arbiter of what cases should survive an immunity

defense.” Id. But, again, their reading does not accomplish

that objective: Regional or state courts of appeals, not this

court, decide the immunity issue on plaintiffs’ appeals from

trial courts’ grants of dispositive motions.

Reading paragraph (e)(10) as authorizing interlocutory

appeals to this court solely in willful misconduct cases serves

the PREP Act’s purpose. The rule defendants urge does not.

III.

We are persuaded that the plain text of the PREP Act limits

the interlocutory appeal provision to subsection (d) willful

misconduct cases. But even if there were ambiguity as to

whether the interlocutory appeal provision applies here, the

consequences of holding as much would be so absurd as to

counsel against jurisdiction. Our holding gains further support

from the principle that, “[w]hen possible, statutes should be

interpreted to avoid . . . unreasonable results, or unjust and

absurd consequences.” Kaseman v. D.C., 444 F.3d 637, 642

(D.C. Cir. 2006) (formatting modified and internal citation

omitted).

First is the workability of the hierarchical system of

precedent. Built into our federal judicial system is the notion

that binding precedent “for the district courts within a circuit”

is set “only by the court of appeals for that circuit.” In re

Korean Air Lines Disaster of Sept. 1, 1983, 829 F.2d 1171,

1176 (D.C. Cir. 1987). Under defendants’ reading of the

interlocutory appeal provision, however, district courts could

be bound by competing opinions of two different courts of

appeals—their home circuit and this circuit—on a single issue.

Consider the dilemma created if we were to hold on facts like

those in Beaty that the non-use of a covered countermeasure is

not covered by PREP Act immunity, thereby affirming the

24

decision of the district court and allowing the case to proceed,

while another district court within the Third Circuit concluded

otherwise and dismissed a plaintiff’s similar suit. The plaintiff

in that second case would appeal that final judgment to the

Third Circuit—not to us—and the Third Circuit could readily

disagree with us and affirm the dismissal. The district courts

would then face the intractable choice in any future case: deny

the motion to dismiss and get reversed by us or grant the motion

and get reversed by the Third Circuit. Defendants point to

nothing suggesting Congress contemplated such an

unprecedented and incoherent system.

The Federal Circuit’s fix for its own variant of this

problem is no solution here, given the anomaly under

defendants’ reading that appeals from interlocutory orders and

final orders go to different circuits. “[T]o avoid the risk that

district courts and litigants will be forced to select from two

competing lines of authority based on which circuit may have

jurisdiction over an appeal,” the Federal Circuit “appl[ies]

regional circuit law to nonpatent issues” and its own law to

patents issues. Midwest Indus., Inc. v. Karavan Trailers, Inc.,

175 F.3d 1356, 1359 (Fed. Cir. 1999), abrogated on other

grounds by TrafFix Devices, Inc. v. Mktg. Displays, Inc., 532

U.S. 23, 28 (2001). That solution is only possible, however,

because the Federal Circuit has jurisdiction over all patent

appeals, meaning a district court will not face competing patent

law from its regional circuit. See 28 U.S.C. § 1295(a)(1). Here,

no such solution is available because the circuit with

jurisdiction over PREP Act appeals would, on the defendants’

reading, depend solely on the procedural posture and outcome

of dispositive motions. The defendants’ only response is that,

if a circuit split arises, the Supreme Court can resolve it. We

find it implausible that Congress intended district courts to be

stuck in an impossible situation unless and until the Supreme

25

Court exercised its discretionary jurisdiction to resolve any

PREP Act conflict they may face.

Relatedly, we are skeptical that Congress intended to

create a revolutionary new appellate review system without

clearly so stating. The defendants dispute the extent to which,

under their reading, the interlocutory appeal provision would

be unique. They emphasize that we often hear appeals on direct

review from agency orders. They also point to appeals from

Article I Tax Courts, which need not be heard in the court of

appeals with jurisdiction over the region in which the court sits,

26 U.S.C. § 7482(b)(1), and a provision directing appeals from

a subset of habeas cases from any district court to us, 8 U.S.C.

§ 1226a(b)(3). But those examples are distinguishable on the

basis that only a single court of appeals is involved. Indeed,

the Tax Court review provision makes explicit that if a court of

appeals “permits an [interlocutory] appeal to be taken from an

order,” then “any subsequent review of the decision of the Tax

Court in the proceeding shall be made by such Court of

Appeals.” 26 U.S.C. § 7482(a)(2)(C). No defendant cites any

statute, and we are not aware of any, in which the question of

which of two potential courts of appeals would have

jurisdiction to review the same kind of order resolving the same

issue would turn solely on whether the motion was granted or

denied.

Finally, we note that the defendants’ expansive reading

would seemingly permit our interlocutory review of orders

denying motions asserting PREP Act immunity in state courts.

Recall that PREP Act immunity applies to both federal and

state law claims. 42 U.S.C. § 247d-6d(a)(1). State court

denials of motions to dismiss and for summary judgment

regarding state-law claims seemingly could, under defendants’

reading, be appealed to our court. There is, again, no indication

Congress intended that extraordinary result. Indeed, all the

26

defendants muster is that “[t]his potential anomaly is of no

import to th[ese] case[s],” which are on appeal from federal

district courts. Beaty Reply Br. at 12. Congress may choose

creative solutions to extraordinary challenges. But the

outlandishness of the defendants’ reading, striking into

uncharted territory without any apparent purpose, further warns

us off their preferred course.

* * *

The statutory text and structure make plain that paragraph

(e)(10) authorizes appeals only from orders allowing claims to

proceed under the subsection (d) willful misconduct exception

to PREP Act immunity. The pointless and confusing

undertaking one would need to ascribe to Congress on a

contrary reading reinforces our holding.

CONCLUSION

For the foregoing reasons, we dismiss both appeals for

lack of jurisdiction.

So ordered.