The Ninth Circuit held that denials of PREP Act immunity are immediately appealable under the collateral-order doctrine. But are immunities from litigation actually separate from that litigation?
October 7, 2023
In Hampton v. California, the Ninth Circuit held that defendants can immediately appeal from the denial of PREP Act immunity via the collateral-order doctrine. I think this is the first time a court of appeals has done so. (The Second Circuit avoided deciding this issue last spring, and the D.C. Circuit addressed appealability only under a specific provision of the Act.) And I have some doubts about the conclusion. I’m not sure that defenses like this should be immediately appealable via the collateral-order doctrine. I recognize that the caselaw is completely against me on this point. But I don’t think immunities from litigation are actually separate from (“collateral to”) that litigation.
The Denial of Immunity
The claims in Hampton stemmed from California’s transfer of incarcerated persons between prisons during the early days of the COVID-19 pandemic. After an outbreak in one prison, prison officials transferred over 100 inmates to another prison in which there were no known infections. But an outbreak soon developed at that second prison. The result was over 2,000 infections and over 25 deaths.
The spouse of one decedent sued prison officials alleging violations of her husband’s constitutional and statutory rights. The defendants moved to dismiss, invoking immunity under the Public Readiness and Emergency Preparedness (or “PREP”) Act. That Act provides an immunity from claims relating to the administration of certain medical treatments during a public-health emergency. The district court denied that motion. The defendants then appealed.
Appealable via the Collateral-Order Doctrine
The Ninth Circuit held that it had appellate jurisdiction under the collateral-order doctrine to review the PREP Act-immunity denial. The collateral-order doctrine deems certain types of district court orders final if they (1) conclusively resolve an issue, (2) involve an important issue that is separate from the merits, and (3) would be effectively unreviewable in an appeal after a final judgment.
According to the Ninth Circuit, denials of PREP Act immunity are conclusive. The Act “confers complete immunity from suit.” So these denials conclusively determine that the defendants have no protection from litigation.
The court also concluded that denials of PREP Act immunity are sufficiently important and separate from the merits. Congress’s grant of immunity showed the importance of these denials. And the immunity “turns on whether the claim for which immunity is asserted relates to the defendant’s use of certain medical countermeasures,” which “generally will have no bearing on the merits of the underlying action.” (Quotation marks omitted.)
Finally, denials of PREP Act immunity were effectively unreviewable. Because the immunity is from litigation, it is completely lost if a party is wrongly required to go through litigation. Effective review of the immunity thus required an immediate appeal.
An Unsurprising-but-Doubtful Extension of the Collateral-Order Doctrine
I have my doubts about Hampton. To be sure, the opinion is entirely consistent with how the courts of appeals treat appeals involving immunities. But that treatment is the problem. Quite simply, I don’t think denials of immunities are appealable collateral orders.
The collateral-order doctrine’s separation requirement—which is captured by the word “collateral” in the doctrine’s name—serves two purposes.
First, it ensures that litigation can proceed in the district court while the appeal is pending. When litigants appeal an issue that is close to the merits of the claims, district court proceedings might need to be stayed until resolution of the appeal. This can cause substantial delays, as appeals can take months or even years. The requirement that a decision be separate from the merits minimizes this interference. If an order is separate from the merits, district court proceedings can continue without much concern about the appeal.
Second, the separateness requirement avoids duplicative appeals. If the same issue (or even similar issues) can be appealed multiple times in a single action, the court of appeals will need to address those same (or similar) issues in separate appeals. The result is duplicated work—appellate courts going over the same ground in separate appeals. But if an immediately appealed issue is separate from those that remain in the district court, it can be decided once in that appeal and need not be addressed again in any subsequent appeals. Appellate panels are thus not duplicating each other’s work.
Immediate immunity appeals risk both interfering with district court proceedings and duplicative appeals. When a collateral-order appeal involves a claimed immunity from litigation, district court proceedings normally must halt until the appeal is resolved. And very similar issues might arise later in the proceedings that necessitate another appeal. For example, a court might hold that a claim as pleaded does not give rise to an immunity. But discovery and further litigation might present facts different from those pleaded, which could spark another immunity request and another appeal.
To be sure, the caselaw—including caselaw from the Supreme Court—disagrees. And there might be good reasons to deem some immunities immediately appealable. But to me, the collateral-order doctrine doesn’t seem like the right way to do so.
Hampton v. California, 2023 WL 6406760 (9th Cir. Oct. 3, 2023), available at the Ninth Circuit and Westlaw