Christopher Beaty, Jr. v. Fair Acres Geriatric Center ( 2022 )

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
6
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).
7
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.
8
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.
9
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.
11
* * *
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
12
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
15
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
16
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
19
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
20
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
22
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
23
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.