Lawyers for the state argued before a federal appeals court Thursday that the governor and Oregon Health Authority director shouldn’t be held liable for placing other people ahead of prison inmates for the COVID-19 vaccine during the pandemic.
The case stems from a class-action lawsuit filed by Oregon prisoners against high-level state officials. They allege former Gov. Kate Brown and Patrick Allen, then the health authority director, violated the prisoners’ Eighth Amendment rights and exposed them to “cruel and unusual punishment” by failing to give them priority for the vaccine.
In December 2020, U.S. Magistrate Judge Stacie F. Beckerman found that state leaders can be held liable if they didn’t carry out safety measures adopted to combat COVID-19.
Lawyers for the state told judges for the 9th U.S. Circuit Court of Appeals that Brown and Allen are among those protected by qualified immunity because no clearly established precedent existed on the appropriate response to COVID-19 in prisons.
They cited the federal Public Readiness and Emergency Preparedness Act, which went into effect in 2005 in response to a threat posed by the avian flu. It authorized the health and human services secretary to issue directives providing immunity from liability against claims resulting from the “administration or use of countermeasures to diseases.”
In March 2020, the secretary did just that for COVID-19, according to the attorneys for the state.
During the pandemic, Oregon directed vaccines first be given to residents and staff at long-term care centers, residential care facilities, adult foster care homes, group homes for people with intellectual and developmental disabilities, other similar congregate health care sites, hospice programs, mobile crisis care programs and people working in correctional settings.
In February 2021, Beckerman ordered all people held in the Oregon prison system to be prioritized for COVID-19 vaccinations in response to the suit. As a result, the state moved state prisoners into the same category as people living in nursing homes and other congregate care settings and issued vaccines.
As of April 2022, 45 people in Corrections Department custody had died after testing positive for COVID-19 and more than 5,000 people tested positive for the virus while in custody.
Assistant Attorney General Robert A. Koch, who argued on behalf of the governor’s office, said a decision against extending immunity would have a “chilling effect” on officials who must make emergency decisions safeguarding Oregonians during a pandemic.
Such a ruling also would run counter to the Emergency Preparedness Act, intended “to enable the marshaling of a national response to a pandemic,” Koch argued.
If the prisoners suing the state allege the governor or others engaged in “willful misconduct,” they can seek damages for alleged harms through a different avenue, he said. That would mean filing a claim in the District of Columbia as established by federal law.
“This is exactly the type of claim that Congress intended to head off” under the Emergency Preparedness Act, Attorney Jon W. Monson argued on behalf of Patrick Allen, former director of Oregon Health Authority.
He told the circuit court judges that the federal act’s language is purposely broad to provide “sweeping immunity” and covers the “administration” of a vaccine to combat a disease, including decisions on who will receive the vaccine first.
“Congress did not want district courts to step in and make public health decisions in the middle of a pandemic,” he argued.
Attorney Nadia Dahab, representing the state prisoners, countered that the Emergency Preparedness Act protects only those “designing, formulating, manufacturing and giving people shots,” such as pharmacists or drug manufacturers.
Brown excluded “wholesale anyone who was living in the congregate setting of a prison from getting priority vaccines,” she said.
The governor’s decision amounted to a “higher-level policy decision” that’s not protected from immunity, she said.
But the three-judge panel sounded skeptical of Dahab’s assertion from their many questions and remarks.
Judge Johnnie B. Rawlinson said the federal act’s language is “very broad” and doesn’t appear limited to protect just drug manufacturers or pharmacists.
“The chain of delivery starts with how to deliver and to whom to deliver” the vaccines, Rawlinson said. “Along the way someone has to decide where shots are going to go.”
The panel, which included Judges Carlos T. Bea and Jennifer Sung, will issue a written ruling later.
— Maxine Bernstein
Email mbernstein@oregonian.com; 503-221-8212
Follow on Twitter @maxoregonian
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