FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PAUL JULIAN MANEY; GARY 

CLIFT; GEORGE W. NULPH; 

THERON D. HALL; DAVID HART; 

SHERYL LYNN SUBLET; 

FELISHIA RAMIREZ, personal 

representative for the Estate of Juan 

Tristan, individually, on behalf of a 

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.

No. 22-35218 

D.C. No. 6:20-cv00570-SB 

OPINION
2 MANEY V. BROWN

PAUL JULIAN MANEY; GARY 

CLIFT; GEORGE W. NULPH; 

THERON D. HALL; DAVID HART; 

SHERYL LYNN SUBLET; 

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.

No.22-35219 

D.C. No. 6:20-cv00570-SB 

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. § 247d6d(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-guidancedocuments/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 § 247d6d(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.