In Maney v. Brown, published February 1, 2024, the 9th Circuit reversed an order denying a motion to dismiss a claim brought under 42 U.S.C. section 1983. At the start of the COVID-19 Pandemic, the defendant governor and the defendant state health officer were responsible for crafting the state's response to the virus. When vaccines first became available, the defendants established priority tiers for vaccine rollout. They assigned state prison inmates to a lower priority vaccination tier than correctional officers. Current and former inmates of state prisons (or their personal representatives) sued the defendants for the injuries and deaths of inmates who contracted COVID while in custody. The defendants moved to dismiss the vaccine prioritization damages claim on the ground that it was barred by immunity under the Public Readiness and Emergency Preparedness Act ("PREP Act"), 42 U.S.C. section 247d-6d. The district court denied the motions. The defendants brought an interlocutory appeal.
The 9th Circuit held that the PREP Act immunized the defendants from the claim. The PREP Act gives covered persons immunity from suit and liability for claims relating to administration or use of a covered countermeasure. The Act applies when the Secretary of Health and Human Services makes a determination that a disease constitutes a public health emergency and declares the Act's immunity is in effect. The Secretary made the required declaration about COVID-19 in March 2020. In making the declaration, the Secretary roadly 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.” The plaintiffs conceded that the defendants were covered persons under the Act, and that COVID-19 vaccines are covered countermeasures. The issue was whether the vaccine prioritization claim falls within the scope of covered claims as defined by the statute and the Secretary's declaration. The plaintiffs also conceded that the Secretary's declaration extends PREP Act immunity to claims arising from a failure to administer a COVID vaccine to a particular person when that omission is part of an individualized prioritization decision. They contended that the immunity does not extend to policy-level failure-to-administer claims. But 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 Secretary's declaration does not expressly or impliedly exclude policy-level prioritization decisions from immunity. The Act's broad language immunizing persons from suit and liability under federal and state law covers claims under 42 U.S.C. section 1983.
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