45 F.4th 137
D.C. Cir.2022Background
- The PREP Act grants broad federal and state-law immunity for "covered persons" administering "covered countermeasures" during a declared public-health emergency, subject to a Secretary's declaration. 42 U.S.C. § 247d-6d(a)–(b).
- Congress created a single exception: an exclusive federal cause of action for death or serious injury proximately caused by willful misconduct, plus detailed procedures for such suits in subsection (e), which channel those cases to the D.D.C. (subsection (d) → (e)(1)–(9)).
- Paragraph (e)(10) provides that the D.C. Circuit has jurisdiction over an interlocutory appeal by a covered person taken within 30 days of an order denying a motion to dismiss or for summary judgment based on an assertion of PREP Act immunity.
- Two separate Eastern District of Pennsylvania cases (Cannon—nonconsensual hydroxychloroquine; Beaty—failure to prevent COVID-19 spread) survived motions to dismiss where defendants invoked PREP Act immunity; both defendants filed interlocutory notices of appeal to the D.C. Circuit under § 247d-6d(e)(10).
- The D.C. Circuit held it lacks jurisdiction: (e)(10) must be read in context with subsection (e)’s other provisions and is limited to interlocutory appeals in subsection (d) willful-misconduct cases filed in D.D.C.; appeals from other district courts denying immunity do not lie to the D.C. Circuit and the appeals were dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of §247d-6d(e)(10): does it authorize interlocutory appeals to D.C. Circuit from any court denying PREP Act immunity? | (Plaintiffs) (Cannon/Beaty): (e)(10) is part of subsection (e) and applies only to "actions under subsection (d)" (willful-misconduct suits) channeled to D.D.C. | (Defendants) (Watermark/Fair Acres): The absence of the phrase "action under subsection (d)" from (e)(10) shows Congress intended broader interlocutory review from any court denying PREP Act immunity. | The court: (e)(10) is limited to subsection (d) willful-misconduct actions (D.D.C.); appeals from other district courts do not lie to the D.C. Circuit. |
| Interpretation method: do omissions require a negative implication (Russello) or does context control? | (Plaintiffs): Context and subsection structure show (e)(10) belongs to the "family" of (e)(1)–(9), so the omission does not broaden the provision. | (Defendants): The omission is purposeful; Russello presumption supports reading (e)(10) broadly. | The court: Contextual reading controls (citing Territory of Guam); negative implication argument rejected—structure and related cross-references confine (e)(10). |
| Practical consequences / absurdity: would a broad reading be workable? | (Plaintiffs): A broad rule would produce conflicting circuit precedents, bind district courts to competing appellate opinions, and allow D.C. Circuit review of state-court orders—absurd and unworkable. | (Defendants): Broad review protects covered persons from burdens of defending suits and promotes uniformity. | The court: Broad reading would create incoherent appellate jurisdiction and conflicting precedents; avoid that result—limit (e)(10). |
Key Cases Cited
- Territory of Guam v. United States, 141 S. Ct. 1608 (2021) (use of statutory context to limit scope of a provision within an interconnected subsection)
- Russello v. United States, 464 U.S. 16 (1983) (negative implication canon where Congress includes language in one provision but omits it in another)
- Oscarson v. Office of Senate Sergeant at Arms, 550 F.3d 1 (D.C. Cir. 2008) (denials of motions to dismiss are generally not final decisions)
- In re Korean Air Lines Disaster of Sept. 1, 1983, 829 F.2d 1171 (D.C. Cir. 1987) (appellate precedent for district courts in a circuit)
- Kaseman v. D.C., 444 F.3d 637 (D.C. Cir. 2006) (interpretation should avoid absurd or unjust results)
- Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949) (collateral order doctrine)