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.