Paul Maney v. Kate Brown

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PAUL JULIAN MANEY; GARY No. 22-35218

CLIFT; GEORGE W. NULPH;

THERON D. HALL; DAVID HART; D.C. No. 6:20-cv-

SHERYL LYNN SUBLET; 00570-SB

FELISHIA RAMIREZ, personal

representative for the Estate of Juan

Tristan, individually, on behalf of a OPINION

class of other similarly situated,

Plaintiffs-Appellees,

v.

KATE BROWN, Governor,

Defendant-Appellant,

and

COLETTE PETERS; HEIDI

STEWARD; MIKE GOWER; MARK

NOOTH; ROB PERSSON; KEN

JESKE; STATE OF OREGON;

PATRICK ALLEN; JOE BUGHER;

GARRY RUSSELL,

Defendants.

2 MANEY V. BROWN

PAUL JULIAN MANEY; GARY No. 22-35219

CLIFT; GEORGE W. NULPH;

THERON D. HALL; DAVID HART; D.C. No. 6:20-cv-

SHERYL LYNN SUBLET; 00570-SB

FELISHIA RAMIREZ, personal

representative for the Estate of Juan

Tristan, individually, on behalf of a

class of other similarly situated,

Plaintiffs-Appellees,

v.

PATRICK ALLEN, in his individual

capacity only,

Defendant-Appellant,

and

KATE BROWN, Governor;

COLETTE PETERS; HEIDI

STEWARD; MIKE GOWER; MARK

NOOTH; ROB PERSSON; KEN

JESKE; STATE OF OREGON; JOE

BUGHER; GARRY RUSSELL,

Defendants.

Appeal from the United States District Court

for the District of Oregon

Stacie F. Beckerman, Magistrate Judge, Presiding

MANEY V. BROWN 3

Argued and Submitted April 20, 2023

Portland, Oregon

Filed February 1, 2024

Before: Johnnie B. Rawlinson, Carlos T. Bea, and Jennifer

Sung, Circuit Judges.

Opinion by Judge Sung

SUMMARY *

PREP Act Immunity

Reversing the district court’s denial of Oregon State

Governor Kate Brown and Director of the Oregon Health

Authority Patrick Allen’s motion to dismiss a claim brought

by Oregon state inmates for damages stemming from

defendants’ assignment of a lower priority COVID-19

vaccination tier to state inmates than to correctional officers,

the panel held that defendants were immune from liability

for the vaccination prioritization claim under the Public

Readiness and Emergency Preparedness (“PREP”) Act.

At the start of the COVID-19 pandemic, Governor

Brown and Director Allen, both responsible for crafting the

state’s response to the virus’s spread, established priority

tiers to guide the state’s vaccine rollout, and assigned state

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

4 MANEY V. BROWN

prison inmates to a lower priority vaccination tier than

correctional officers.

On March 17, 2020, the Secretary of Health and Human

Services issued a declaration announcing that COVID-19

constituted a public health emergency and that immunity as

prescribed in the PREP Act was in effect for the

“manufacture, testing, development, distribution,

administration, and use of” covered countermeasures.

The panel held that the statutory requirements for PREP

Act immunity were met with respect to the vaccine

prioritization damages claim because the “administration” of

a covered countermeasure includes prioritization of that

countermeasure when its supply was limited. The panel

further concluded that the PREP Act’s provisions extend

immunity to persons who make policy-level decisions

regarding the administration or use of covered

countermeasures.

The panel next held that the PREP Act provides

immunity from suit and liability for constitutional claims

brought under 42 U.S.C. § 1983. Although the PREP Act

does not specifically mention § 1983, Congress used terms

that plainly and unambiguously define a broad scope of

immunity that includes claims brought under

§ 1983. Congress, therefore, intended to expressly

immunize covered persons from § 1983 actions for claims

covered by the PREP Act, even if those claims are federal

constitutional claims.

MANEY V. BROWN 5

COUNSEL

Robert A. Koch (argued), Senior Assistant Attorney

General; Denise G. Fjordbeck, Assistant Attorney General;

Benjamin Gutman, Solicitor General; Ellen F. Rosenblum,

Oregon Attorney General; United States Department of

Justice, Salem, Oregon; R. Kyle Busse and Kerry J.

Shepherd, Markowitz Herbold PC, Portland, Oregon; for

Defendant-Appellant.

Nadia H. Dahab (argued), Sugerman Dahab, Portland,

Oregon; David F. Sugerman, David F. Sugerman Attorney

PC, Portland, Oregon; Juan C. Chavez, Brittney Plesser,

Franz Bruggemeier, Alex Meggitt, and Benjamin Haile,

Oregon Justice Resource Center, Portland, Oregon; for

Plaintiffs-Appellees.

OPINION

SUNG, Circuit Judge:

At the start of the COVID-19 pandemic, the Governor of

Oregon, Kate Brown, and the Director of the Oregon Health

Authority (“OHA”), Patrick Allen, were responsible for

crafting the state’s response to the novel virus’s rapid spread.

When COVID-19 vaccines first became available, Brown

and Allen established priority tiers to guide the state’s

vaccine rollout, and they assigned state prison inmates to a

lower priority vaccination tier than correctional officers.

This appeal concerns the affected inmates’ claim for

damages allegedly caused by this vaccine prioritization.

6 MANEY V. BROWN

Defendants Brown and Allen moved to dismiss the

vaccine prioritization damages claim, contending that it is

barred by the immunity provision of the Public Readiness

and Emergency Preparedness (“PREP”) Act. The district

court denied the motion to dismiss, and Defendants filed this

interlocutory appeal. We conclude that Brown and Allen are

entitled to immunity from suit and liability for the

vaccination prioritization claim under the PREP Act. We

therefore reverse and remand to the district court for further

proceedings consistent with this opinion.

BACKGROUND

I

“Congress passed the PREP Act in 2005 to encourage

during times of crisis the development and deployment of

medical countermeasures (such as diagnostics, treatments,

and vaccines) by limiting legal liability relating to their

administration.” Hampton v. California, 83 F.4th 754, 762

(9th Cir. 2023) (cleaned up). The statute gives “covered

person[s]” immunity “from suit and liability” for claims

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

administration to or the use by an individual of a covered

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

“applies to any claim for loss that has a causal relationship

with the administration to or use by an individual of a

covered countermeasure.” Id. § 247d-6d(a)(2)(B).

The Act’s immunity lies dormant until the Secretary of

Health and Human Services “makes a determination that a

disease . . . constitutes a public health emergency” and

“make[s] a declaration, through publication in the Federal

Register,” that the Act’s immunity “is in effect.” Id. § 247d-

6d(b)(1). The Act requires the Secretary’s declaration to

define the scope of immunity, including by identifying the

MANEY V. BROWN 7

covered countermeasures and the period during which the

liability protections are in effect. Id. § 247d-6d(b)(1)–(2).

On March 17, 2020, the Secretary issued a declaration

announcing that COVID-19 “constitutes a public health

emergency” and that “immunity as prescribed in the PREP

Act” was “in effect” for the “manufacture, testing,

development, distribution, administration, and use of”

covered countermeasures. Declaration Under the Public

Readiness and Emergency Preparedness Act for Medical

Countermeasures Against COVID-19, 85 Fed. Reg. 15198,

15201 (Mar. 17, 2020). The Secretary broadly defined

“covered countermeasures” to include “any antiviral, any

other drug, any biologic, any diagnostic, any other device, or

any vaccine, used to treat, diagnose, cure, prevent, or

mitigate COVID-19.” Id. at 15202.

II

Plaintiffs are current and former inmates—or “adults in

custody” (“AICs”)—of the Oregon Department of

Corrections, or their personal representatives, who

contracted COVID-19 while in custody in Oregon prisons.

Tragically, COVID-19 caused or contributed to the deaths of

some inmates. In April 2020, Plaintiffs filed a class action

complaint under 42 U.S.C. § 1983 against various Oregon

officials, alleging multiple federal and state claims related to

defendants’ initial responses to COVID-19. Plaintiffs

initially moved for injunctive relief to reduce the state prison

population, which the district court denied.

Meanwhile, development of the first COVID-19

vaccines progressed rapidly, culminating in FDA approval

of a vaccine in December 2020. On December 9, 2020, the

Secretary amended the COVID-19 declaration for the fourth

time. See Fourth Amendment to the Declaration Under the

8 MANEY V. BROWN

Public Readiness and Emergency Preparedness Act for

Medical Countermeasures Against COVID-19 and

Republication of the Declaration, 85 Fed. Reg. 79190 (Dec.

9, 2020) (“Declaration”). In relevant part, the Secretary

amended Section IX to clarify that “[p]rioritization or

purposeful allocation” of a scarce covered countermeasure

can fall within the PREP Act’s liability protection. Id. at

79197. 1

The Oregon Health Authority then published guidance

recommending phased allocation of the vaccines. In Phase

1A, healthcare personnel, residents in long-term care

facilities, and corrections officers were eligible for vaccines.

In Phase 1B, teachers, childcare workers, and persons age 65

or older were eligible. Neither phase categorically covered

AICs, but AICs who met the eligibility criteria were

prioritized for vaccination on the same terms as the general

population. For example, all AICs who were 65 or older

were eligible for vaccination in Phase 1B. The Governor’s

initial rollout of the vaccines was consistent with OHA’s

guidance.

1

See also Declaration, 85 Fed. Reg. at 79194–95 & n.9 (clarifying that

the Declaration must be construed in accordance with HHS general

counsel advisory opinions and expressly incorporating them); Dep’t of

Health & Human Servs. Office of General Counsel, Advisory Opinion

20-04 on the Public Readiness and Emergency Preparedness Act and the

Secretary’s Declaration under the Act, Oct. 22, 2020, as Modified on

Oct. 23, 2020, at 6,

https://www.hhs.gov/guidance/sites/default/files/hhs-guidance-

documents/AO4.2_Updated_FINAL_SIGNED_10.23.20-2.pdf

[https://perma.cc/26RF-9A6Y] (“Management and operation of

countermeasure programs . . . involve decisions regarding prioritization

of populations to receive countermeasures while there are limited doses.

And prioritization necessarily entails temporarily withholding limited

doses from some recipients . . . .”).

MANEY V. BROWN 9

In response, Plaintiffs amended their complaint to add

class claims for injunctive relief and damages, alleging that

the vaccine prioritization of corrections officers, but not all

AICs, violated the Eighth Amendment’s prohibition against

cruel and unusual punishment. On February 2, 2021, the

district court certified a provisional class of all AICs who

had not yet been offered a vaccine and granted Plaintiffs

preliminary injunctive relief, ordering the immediate

prioritization of approximately 11,000 AICs for vaccination.

Defendants complied with the court’s order.

In September 2021, when vaccines were no longer

scarce, the district court dismissed as moot Plaintiffs’ claim

for injunctive relief because all Oregonians (ages twelve and

over) were eligible to receive a COVID-19 vaccine and

vaccine supply in Oregon exceeded demand. Plaintiffs’

damages claims, however, remained.

In November 2021, Brown and Allen each moved to

dismiss Plaintiffs’ vaccine prioritization damages claim,

contending that it is barred by the PREP Act. The district

court denied both motions, and Defendants filed this

interlocutory appeal. Although Plaintiffs’ action involves

additional claims and defendants, the only issue presented in

this appeal is whether the PREP Act bars Plaintiffs’ vaccine

prioritization damages claim against Brown and Allen.

DISCUSSION

I

We have jurisdiction over Defendants’ immediate appeal

of the district court’s denial of PREP Act immunity.

Hampton, 83 F.4th at 761–62 (holding that a denial of PREP

Act immunity is immediately appealable under the collateral

order doctrine).

10 MANEY V. BROWN

We review de novo the denial of a motion to dismiss

under Federal Rule of Civil Procedure 12(b)(6). Mudpie, Inc.

v. Travelers Cas. Ins. Co. of Am., 15 F.4th 885, 889 (9th Cir.

2021). We also review de novo the legal issue of whether

Brown and Allen are entitled to immunity under the PREP

Act. See Cox v. Dep’t of Soc. & Health Servs., 913 F.3d 831,

837 (9th Cir. 2019) (explaining that whether a public official

is entitled to immunity is a question of law reviewed de

novo).

II

We first consider whether the statutory requirements for

PREP Act immunity are met with respect to Plaintiffs’

vaccine prioritization damages claim. We then address

Plaintiffs’ argument that, regardless of whether those

requirements are met, the PREP Act does not bar federal

constitutional claims brought under 42 U.S.C. § 1983.

A

To determine whether Plaintiffs’ vaccine prioritization

damages claim meets the PREP Act’s requirements for

immunity, we begin with the statutory text. The Act’s

immunity provision states:

Subject to the other provisions of this section,

a covered person shall be immune 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

MANEY V. BROWN 11

declaration under subsection (b) has been

issued with respect to such countermeasure.

42 U.S.C. § 247d-6d(a)(1). Additionally, in § 247d-

6d(a)(2)(B), the Act defines the “scope” of immunity as

including

any claim for loss that has a causal

relationship with the administration to or use

by an individual of a covered

countermeasure, including a causal

relationship with the design, development,

clinical testing or investigation, manufacture,

labeling, distribution, formulation,

packaging, marketing, promotion, sale,

purchase, donation, dispensing, prescribing,

administration, licensing, or use of such

countermeasure.

Id. § 247d-6d(a)(2)(B).

Plaintiffs concede that both Defendants are covered

persons, that COVID-19 vaccines are covered

countermeasures, and that Plaintiffs seek damages for losses

allegedly caused by Defendants’ decisions to give

corrections officers and others vaccine priority before AICs.

Thus, the only question is whether Plaintiffs’ vaccine

prioritization claim falls within the scope of covered claims

as defined in §§ 247d-6d(a)(1) and (a)(2)(B) and the

Secretary’s declaration.

For the following reasons, we conclude that the vaccine

prioritization claim falls within the scope of covered claims

because “administration” of a covered countermeasure

12 MANEY V. BROWN

includes prioritization of that countermeasure when its

supply is limited.

The PREP Act does not explicitly define what it means

to administer a countermeasure to an individual under

§ 247d-6d(a)(1). The phrasing “administration to . . . an

individual of a covered countermeasure” could refer only to

the act of physically giving a countermeasure to a particular

person—for example, injecting someone with a vaccine

shot. However, in § 247d-6d(a)(2)(B), the Act provides that

the scope of immunity under paragraph (1) includes various

activities with a causal relationship to the administration of

a countermeasure beyond injecting someone with a vaccine.

Most significantly, subsection (a)(2)(B) lists several terms,

including “administration,” without reference to “an

individual.” This is consistent with the expansive causal

relationship the subsection provides; for example, the

“design, development,” “manufacture,” and “distribution”

of a vaccine are multiple links removed in the chain of events

from the ultimate injecting of an individual with a vaccine.

By referring to “administration . . . of [a covered]

countermeasure,” in the context of a list that expands the

conduct within the Act’s scope of immunity, and without

requiring a direct link to an individual, subsection (a)(2)(B)

broadens the scope of immunity to administrative activities

other than the physical act of directly injecting a particular

person with a vaccine.

Consistent with the text of subsections (a)(1) and

(a)(2)(B), the Secretary’s Declaration defines

“administration” to include both “physical provision of the

countermeasures to recipients” and, in relevant part,

“activities and decisions directly relating to . . . management

and operation of countermeasure programs.” 85 Fed. Reg. at

79197. The Declaration further explains: “Where there are

MANEY V. BROWN 13

limited Covered Countermeasures, not administering a

Covered Countermeasure to one individual in order to

administer it to another individual can constitute ‘relating

to . . . the administration to . . . an individual’ under 42

U.S.C. § 247d-6d. . . . Prioritization or purposeful allocation

of a Covered Countermeasure, particularly if done in

accordance with a public health authority’s directive, can fall

within the PREP Act and this Declaration’s liability

protections.” Id. (first and second alteration in original).

Plaintiffs do not challenge the validity of the

Declaration’s definition of “administration” or its

interpretation of that term as including prioritization of

scarce countermeasures. Moreover, that interpretation is

consistent with the statutory text, as well as our decision in

Hampton. In that case, we held that “the PREP Act provides

immunity only from claims that relate to ‘the administration

to or the use by an individual of’ a covered

countermeasure—not such a measure’s non-administration

or non-use.” Hampton, 83 F.4th at 763 (emphasis in

original). However, we distinguished prioritization of a

scarce countermeasure from non-administration or non-use,

and we explained that, “for a countermeasure with limited

availability, administering the countermeasure to one person

could mean withholding it from another.” Id.

Plaintiffs concede that the Declaration extends PREP

Act immunity to claims arising from a “failure to

administer” a COVID-19 vaccine to a particular individual

when that omission occurred in the context of an

individualized prioritization decision. They argue, however,

that PREP Act immunity does not extend to “policy-level”

failure-to-administer claims. We disagree.

14 MANEY V. BROWN

Several of the PREP Act’s provisions expressly show

Congress’s intent to extend immunity to persons who make

policy-level decisions regarding administration or use of

covered countermeasures and do not directly administer

countermeasures to particular individuals. The Act defines

the term “covered person,” “when used with respect to the

administration or use of a covered countermeasure,” to

include a “program planner of such countermeasure.” 42

U.S.C. § 247d-6d(i)(2)(B)(iii). The Act further defines

“program planner” to include, in relevant part, a state

government, a person employed by a state government, a

“person who supervised or administered a program with

respect to the administration” of a countermeasure, and “a

person who has established requirements [or] provided

policy guidance . . . to administer or use a covered

countermeasure.” 2 Id. § 247d-6d(i)(6). The Declaration also

defines “covered person” to include a governmental program

planner. See 85 Fed. Reg. at 79195.

Plaintiffs cite the Secretary’s Declaration, but they do

not specifically identify any provisions that expressly or

impliedly exclude policy-level prioritization decisions from

the scope of immunity. Plaintiffs appear to rely on the fact

that the Declaration used an “example” involving an

individualized prioritization decision to illustrate when “not

administering” a covered countermeasure could be protected

2

Individuals who directly administer countermeasures to other

individuals fall within the definition of a “qualified person.” 42 U.S.C.

§ 247d-6d(i)(8) (“The term ‘qualified person’, when used with respect to

the administration or use of a covered countermeasure, means—(A) a

licensed health professional or other individual who is authorized to

prescribe, administer, or dispense such countermeasures under the law

of the State in which the countermeasure was prescribed, administered,

or dispensed . . . .”).

MANEY V. BROWN 15

by the Act. See 85 Fed. Reg. at 79197. But the use of an

illustrative example does not limit the scope of immunity to

the circumstances of that example.

B

We next consider whether the PREP Act provides

immunity from suit and liability for constitutional claims

brought under 42 U.S.C. § 1983.

Section 1983 “is a mechanism for vindicating federal

statutory or constitutional rights.” Stilwell v. City of

Williams, 831 F.3d 1234, 1240 (9th Cir. 2016) (citing Baker

v. McCollan, 443 U.S. 137, 144 n.3 (1979)). Specifically,

§ 1983 provides that “[e]very person who, under color of

[State law] subjects, or causes to be subjected, any citizen of

the United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be

liable to the party injured.” 42 U.S.C. § 1983.

Congress, however, may “specifically foreclose[] a

remedy under § 1983,” and it “may do so expressly . . . or

impliedly.” Blessing v. Freestone, 520 U.S. 329, 341 (1997)

(quoting Smith v. Robinson, 468 U.S. 992, 1005 n.9 (1984)).

“We do not lightly conclude that Congress intended to

preclude reliance on § 1983 as a remedy for the deprivation

of a federally secured right.” Price v. City of Stockton, 390

F.3d 1105, 1114 (9th Cir. 2004) (quoting Wilder v. Va. Hosp.

Ass’n, 496 U.S. 498, 520 (1990)). And the defendant bears

the burden to demonstrate that Congress intended to do so.

Id.; see also Golden State Transit Corp. v. City of Los

Angeles, 493 U.S. 103, 107 (1989).

The PREP Act expressly states, in relevant part, that “a

covered person shall be immune from suit and liability under

16 MANEY V. BROWN

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.” 42 U.S.C. § 247d-6d(a)(1). A suit for

damages brought under § 1983 alleging a constitutional

violation is a suit under federal law. See Stilwell, 831 F.3d at

1240; Baker, 443 U.S. at 144 n.3.

The PREP Act covers “all claims for loss” related to the

administration or use of covered countermeasures. “The use

of ‘all’ indicates a sweeping statutory reach.” AK Futures

LLC v. Boyd St. Distro, LLC, 35 F.4th 682, 690–91 (9th Cir.

2022). Of course, the PREP Act limits the scope of covered

claims to those related to the administration or use of

covered countermeasures. But that limitation does not

categorically exclude constitutional claims.

The Act also carves out one “exception to the immunity”

provided for in § 247d-6d(a) “for an exclusive Federal cause

of action against a covered person for death or serious

physical injury proximately caused by [the covered

person’s] willful misconduct.” 42 U.S.C. § 247d-6d(d)(1).

That exception may provide a remedy for constitutional

claims that involve willful misconduct, as defined by the

Act. But that exception does not categorically exempt

federal constitutional claims from the Act’s protection.

Plaintiffs assert that the PREP Act does not expressly

foreclose § 1983 as a cause of action for constitutional

claims, but they do not explain how the Act’s express terms

fail to reach such claims. Although the Act does not

specifically mention § 1983, Congress used terms that

plainly and unambiguously define a broad scope of

immunity that includes claims brought under § 1983.

Plaintiffs do not cite any precedent holding, or even

MANEY V. BROWN 17

suggesting, that Congress can only expressly preclude

§ 1983 actions by specifically referencing § 1983. Thus, we

conclude that Congress intended to expressly immunize

covered persons from § 1983 actions for claims covered by

the Act, even if those claims are federal constitutional

claims. 3

Plaintiffs also briefly argue that, even if the PREP Act

forecloses a remedy under § 1983 for their constitutional

claim, we have the power to grant a damages remedy for that

claim. None of the cases Plaintiffs cite, however, suggest

that we have the power to override Congress’s express grant

of immunity from suit and liability for certain claims. See

Smith v. Robinson, 468 U.S. 992 (1984); Bivens v. Six

Unknown Named Agents of the Fed. Bureau of Narcotics,

403 U.S. 388 (1971); Bell v. Hood, 327 U.S. 678 (1946).

CONCLUSION

Under the PREP Act, defendants Brown and Allen are

entitled to immunity from suit and liability with respect to

Plaintiffs’ vaccine prioritization damages claim. We reverse

the district court’s denial of Brown’s and Allen’s motions to

dismiss that claim and remand for further proceedings

consistent with this opinion.

REVERSED and REMANDED. 4

3

Because we conclude that the PREP Act expressly forecloses § 1983

actions for covered claims, we do not need to apply the standard for

determining whether Congress impliedly foreclosed § 1983 actions for

constitutional violations. See Stilwell, 831 F.3d at 1242–43 (discussing

Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246 (2009)).

4

Each party shall bear its own costs related to this appeal.