[00:00:00] Speaker 00: Case number 21-7096, Christopher Beatty Jr. [00:00:04] Speaker 00: and Nicole Garcia as co-administrators of the estate of Christopher David Beatty, deceased and on the run right versus Fair Acres Geriatric Center in Delaware County Appellants. [00:00:15] Speaker 00: Ms. [00:00:15] Speaker 00: Eisenstein for Appellants, Mr. Pulver for Appellees. [00:00:19] Speaker 04: Good morning, council. [00:00:20] Speaker 04: Ms. [00:00:21] Speaker 04: Eisenstein, please proceed when you're ready. [00:00:24] Speaker 02: Good morning, your honor. [00:00:26] Speaker 02: Alana Eisenstein on behalf of Appellants Delaware County and Fair Acres Geriatric Center. [00:00:31] Speaker 02: If I may reserve three minutes for rebuttal. [00:00:35] Speaker 02: Your honor, plaintiff's complaint is barred by PREP Act immunity because it is bound up in claims that relate to the county's administration of covered countermeasures and it fails to state a Monell claim by failing to plead that the county had any affirmative policy or was deliberately indifferent [00:00:54] Speaker 02: to the risk of violation of actionable federal rights. [00:00:58] Speaker 02: Let me start first with the PREP Act. [00:01:00] Speaker 04: The PREP Act bars... Can we start with jurisdiction? [00:01:06] Speaker 04: Just because I think you would at least acknowledge that there's a media jurisdictional issue here. [00:01:10] Speaker 04: I know you have a view on which way it comes out, but it at least seems to be a significant question. [00:01:16] Speaker 04: And I guess where I'd start with that is under subsection E, [00:01:22] Speaker 04: of 247D-6D, the title of subsection E is Procedures for Suit, and most of subsection E other than E10 speaks of a particular kind of suit, and that's the suit that's brought under subsection D. And so your argument is that, well, E10 doesn't do that, and so 10 opens it back up to things beyond the suit under D. [00:01:52] Speaker 04: And I guess my question is, what do you think the suit is in the title of procedures for suit? [00:01:59] Speaker 04: What kind of suit are they referring, was Congress intending to refer to? [00:02:05] Speaker 02: So your honor, I think it's a suit that is allegedly barred or assertedly barred by Prep Act immunity. [00:02:11] Speaker 02: So there's a good reason why there's a whole list of procedures for suit just for willful misconduct claims, because under the statute, those are the only kind of claims [00:02:20] Speaker 02: that have an exception to immunity that are otherwise related to cut the administration or use of covered countermeasures. [00:02:26] Speaker 02: By contrast, a claim like ours, where the assertion is that this isn't a willful misconduct claim, no one thinks that it is, and we've asserted that it's barred by immunity, that is a claim that should stop in its tracks. [00:02:40] Speaker 02: So it makes sense that there's not nine provisions providing procedures for our kind of suit, because the only thing that should happen in a suit like ours [00:02:48] Speaker 02: is either the suit proceeds because it's not barred by the Prep Act, or if we assert that it is and our motion is denied, then we get to take an interlocutory appeal under the plain language of subsection E10. [00:03:02] Speaker 02: So I think that there's no anomaly. [00:03:05] Speaker 04: When it says procedures for suit, it seems to me that a natural reading of procedures for suit is the procedures for the kind of suit that has just been discussed, which is a suit under D, and which is otherwise discussed [00:03:19] Speaker 04: in particular terms under E. And if you look at D2, for example, D2 is entitled persons who can sue. [00:03:26] Speaker 04: And then E is the very next header, and it says procedures for suit. [00:03:30] Speaker 04: And it just seems somewhat natural to read procedures for suit to mean a kind of suit that has just been referred to under D2 in defining the persons who can sue and the kind of suit that is otherwise encompassed by E in every provision in E other than arguably 10. [00:03:50] Speaker 04: The natural way to think about it in my mind, or a natural way to think about it in my mind is all of E is about a D suit. [00:03:56] Speaker 04: That's the suit that procedures for suit is referring to. [00:04:01] Speaker 02: So your honor, I go back to what D is. [00:04:04] Speaker 02: So D is an exception to immunity under subsection A, not an application of immunity under subsection A. So it would make little sense to provide for interlocutory appeal for an assertion of immunity under subsection A [00:04:18] Speaker 02: the very provision of willful misconduct as an exception to that provision. [00:04:23] Speaker 01: I think Ms. [00:04:24] Speaker 01: Eisenstein that that actually cuts the other way in the sense that it offers an explanation why under E1 through 9 [00:04:33] Speaker 01: the references to action brought under subsection D, whereas as what you just said points out, a defendant is the actor to whom E10 is directed. [00:04:47] Speaker 01: And the defendant's claim is this isn't, correctly, a suit under subsection D. In fact, it's a suit under A, which is immunized. [00:04:57] Speaker 01: What you just described, I think, really provides a reason why Congress might not have included that limiting language in E-10, even though it included it in each of the preceding subsections. [00:05:14] Speaker 02: So, Your Honor, I respectfully disagree because the E-10 has sort of categorical language here. [00:05:23] Speaker 02: that this court shall have jurisdiction by a covered person, which Fair Acres certainly is, taken in 30 days of an order denying a motion to dismiss based on an assertion of the immunity from suit covered by subsection A or based on an assertion of an exclusion under C5. [00:05:42] Speaker 02: And so there's no such limitation. [00:05:45] Speaker 02: And I think when Congress in each and every other subsection felt the need to specify in an action under subsection D, [00:05:53] Speaker 02: Which it makes sense to do because it's covering damages. [00:05:55] Speaker 02: It's covering the means by which the suit is conducted. [00:05:59] Speaker 02: The type of judges that hear such a suit in a suit where a covered person, which we undoubtedly are, asserts immunity. [00:06:07] Speaker 02: The suit should stop in its tracks. [00:06:08] Speaker 02: And that was one of the overriding actions at state court. [00:06:11] Speaker 02: So, your honor, I think that provision does by its terms. [00:06:18] Speaker 02: I think there could be other [00:06:20] Speaker 02: um, doctrines that may otherwise, um, limit this court's jurisdiction to hear a suit directly from state court, including potentially abstention doctrines. [00:06:30] Speaker 04: But I think by its terms, it could potentially apply, um, the idea that what Congress is hanging to do here is to make sure that the DC circuit, there's a case from, I don't know, California, the state court in California, [00:06:47] Speaker 04: and it would only be abstention doctrines or something else that would potentially stand in the way of that. [00:06:51] Speaker 04: You would think you'd have something pretty pointed to allow for that kind of appeal authority. [00:06:59] Speaker 04: It just seems extraordinary. [00:07:01] Speaker 02: Well, Your Honor, I don't think it is that extraordinary because under section, immunities by their terms are typically subject to direct interlocutory appeal. [00:07:11] Speaker 02: And that's for good reason, because the point of an immunity is not just a defense to liability, but a defense to the lawsuit itself. [00:07:19] Speaker 01: And so this is a good- Are you assuming that if this E10 does not apply, that there would be no interlocutory appeal to the regional circuit under ordinary collateral order? [00:07:34] Speaker 01: doctrine. [00:07:35] Speaker 01: I mean, you know, immunities, even without a statutory basis, courts around the country provide interlocutory appeals in all kinds of immunity, sovereign immunities, qualified immunities, presidential immunities. [00:07:49] Speaker 01: Is your position in part grounded in the assumption that there's an interlocutory appeal to the D.C. [00:07:54] Speaker 01: Circuit or not at all? [00:07:57] Speaker 02: Well, Your Honor, certainly the statute only provides for interlocutory appeal to this court exclusively. [00:08:02] Speaker 02: it doesn't provide for under, you know, there could be a common law collateral order doctrine theory that you could still appeal from this type of statutory immunity. [00:08:13] Speaker 02: But historically under, for example, 1983 jurisprudence, the interpretation of allowing a denial of qualified immunity to go directly to the court of appeals has been an interpretation of 1291, not an interpretation of 1983. [00:08:29] Speaker 02: And so I think [00:08:30] Speaker 02: there would be a number of hurdles that we might have to go through to take an immediate appeal of this order to the Third Circuit. [00:08:38] Speaker 02: Whereas the statute expressly grants this court interlocutory appeal from the federal court. [00:08:45] Speaker 02: And to just address Judge Srivastava and your concern about state court, what I was going to say about why it's not unusual, it comes back to 1983. [00:08:52] Speaker 02: In 1983, jurisprudence, for example, there is immediate interlocutory appeal for federal cases to federal court and not from state court. [00:09:00] Speaker 02: And so the fact that it may well be that we cannot, and defendants generally cannot appeal from state court decisions. [00:09:08] Speaker 02: That's not before this court because this is a federal claim. [00:09:11] Speaker 02: It's a 1983 claim predicated on the basis of Monell liability. [00:09:17] Speaker 02: It was properly in federal court. [00:09:18] Speaker 02: And the very plain terms of section E10 provide that for an appeal directly to this court. [00:09:25] Speaker 02: And imagine if we couldn't follow the plain terms of this statute. [00:09:29] Speaker 02: We as litigants were sitting here deciding what to do in the face of an order that meets the exact terms of this statute. [00:09:35] Speaker 02: We're a covered person. [00:09:37] Speaker 02: We are seeking interlocutory appeal from the denial of a motion to dismiss based on an assertion of immunity under subsection A, and we timely appealed. [00:09:45] Speaker 02: Where else were we supposed to go besides follow the plain language of the statute? [00:09:50] Speaker 04: You may not have a place to go unless that's just the reality of interlocutory appeals is sometimes they're available and sometimes they're not. [00:09:57] Speaker 04: And you could seek 1292B certification. [00:10:01] Speaker 02: Well, you're right, Your Honor, but I think in this case, Congress made a judgment that immunity was an important feature of the implementation of covered countermeasures under the Prep Act. [00:10:13] Speaker 02: And the reason that it did that is, you know, and to provide such robust immunity from suit was because of an interest in providing an incentive for entities, covered persons who are administering the measures designed to combat a pandemic [00:10:29] Speaker 02: to do so quickly and without not only threat of ultimate liability, but without having lawsuits that they had to defend in the process. [00:10:36] Speaker 02: And so the idea of an immediate appeal. [00:10:39] Speaker 01: As you read it, this provision is really highly anomalous. [00:10:44] Speaker 01: I'm not aware of, and please provide examples if you are, I'm not aware of any statute in which two different courts of appeals would have jurisdiction to review and order [00:10:55] Speaker 01: that resolves the same issues presented in a single motion based on whether the motion is granted or denied. [00:11:03] Speaker 02: If it's- Your honor, I agree it's unusual, but this prep act is provided for unusual times. [00:11:11] Speaker 02: It's an emergency statute that is designed to address the activities [00:11:21] Speaker 02: encounter measures that are implemented during the course of a declared emergency. [00:11:26] Speaker 02: So I think the fact that it has an unusual procedure to this court is not one that should allow this court to or suggest that this court should avoid. [00:11:36] Speaker 04: Can I add one wrinkle to Judge Pillard's question, which is it does seem true that where it goes depends on how the motion's resolved, but it also seems true that that's not even the limiting point of it, because even if it's denied, [00:11:51] Speaker 04: it could go to two different courts depending on when the appeal from the denial occurs. [00:11:57] Speaker 04: Because if the defendant takes the appeal immediately under your theory, it would go to the DC Circuit. [00:12:03] Speaker 04: Let's suppose there's a denial of summary judgment. [00:12:06] Speaker 04: But then if the defendant opts to wait and then takes the appeal after trial, the appeal would go to the Third Circuit. [00:12:13] Speaker 04: And there would still be the question of whether immunity was properly denied. [00:12:17] Speaker 04: So when it's taken would determine which court [00:12:20] Speaker 04: reviews the denial. [00:12:23] Speaker 02: So, Your Honor, I don't think that, first of all, that's that unusual because the idea of this is a defendant protective provision. [00:12:29] Speaker 02: And second of all, there are other circumstances, including in the contract dispute context, for example, where litigants have choices of whether to go through regional courts of appeals or through the DC Circuit route, as well as the Court of Claims issues. [00:12:43] Speaker 02: So there are other statutory schemes that provide different pathways for appeal from administrative orders or from other [00:12:50] Speaker 02: um, types of cases. [00:12:53] Speaker 01: Wait, what are you, what are you referring to? [00:12:55] Speaker 01: I'm really, I'm not aware of any, any, uh, statutory scheme that gives a party that choice. [00:13:04] Speaker 01: I'm not, I'm not sure what you're referring. [00:13:07] Speaker 02: I'm sorry, honor. [00:13:08] Speaker 02: And in the contract disputes context, there are different pathways for appeal. [00:13:11] Speaker 02: That's not necessarily a direct interlocutory appeal, but there are different pathways that a litigant may choose for appeal. [00:13:18] Speaker 02: to regional courts of appeals or up through a centralized circuit. [00:13:23] Speaker 02: So that's not completely unusual in this circumstance. [00:13:29] Speaker 02: If I may take a couple of minutes. [00:13:32] Speaker 02: Correct. [00:13:32] Speaker 02: I'm sorry, Your Honor. [00:13:33] Speaker 02: I think I misspoken to this court. [00:13:35] Speaker 02: If I may take a couple of moments to talk about the merits here. [00:13:40] Speaker 02: And in particular, I want to focus on the Monell factors here because [00:13:44] Speaker 02: You know, I think one of the distinguishing features of this case compared to many of the other Prep Act cases that have been decided on complete preemption type grounds around the country is that plaintiffs are trying to proceed by a pure Monell theory, and they have utterly failed to weave the elements of a Monell claim. [00:14:02] Speaker 02: And that's particularly significant when you combine that with the Prep Act, because the Prep Act, to the extent to which they have alleged claims that [00:14:13] Speaker 02: or they assert that this is some kind of sort of isolated incidence of negligence or just a failure to isolate. [00:14:23] Speaker 02: They run into either the Monell claim because they failed to assert any type of policy or is bound up in policy. [00:14:30] Speaker 02: And that's, I think, exactly why they're in a catch-22 in terms of the type of claims that they plead. [00:14:38] Speaker 02: In terms of just the Monell itself, plaintiffs do not plead any facts that Fair Acres failed to comply with any public health or medical recommendation or guideline. [00:14:49] Speaker 02: And I think that is stark and significant here. [00:14:53] Speaker 02: They just have lists of purported regulations and state statutes that were violated. [00:14:58] Speaker 02: But the bare facts that are alleged point to no policy. [00:15:02] Speaker 02: And they certainly don't meet the type of well-established standard for deliberate indifference that this court [00:15:07] Speaker 02: and the Supreme Court have established that require that the need for action was obvious, that the policymakers understood that there was a high likelihood of violation of federal rights, or that the circumstances were persistent and widespread under like circumstances. [00:15:23] Speaker 02: And so this complaint falls woefully short of Monal, and it fails to state a claim that's not barred by the PREP Act. [00:15:31] Speaker 02: With that, I'll reserve the rebalance of my time for rebuttal. [00:15:34] Speaker 04: Thank you, Ms. [00:15:35] Speaker 04: Eisenstein. [00:15:37] Speaker 04: Mr. Pulver, we'll hear from you now. [00:15:45] Speaker 03: Good morning, your honors and may it please the court, Adam Pulver for Christopher Beatty Jr. [00:15:50] Speaker 03: and Nicole Garcia. [00:15:52] Speaker 03: Statutory provisions are not read in isolation. [00:15:54] Speaker 03: And as Judge Srinivasan pointed out, if you look at the context of the surrounding provisions of subsection E of the threat act, as well as background statutes like 28 USC 1294, [00:16:08] Speaker 03: Subsection E10 is not applicable to appeals like this one. [00:16:13] Speaker 03: Similarly, on the merits, reading subsection A is immunity provision in the context of other provisions of the PRECDOT, confirms it's an applicability to claims for loss relating to the failures to use covered countermeasures. [00:16:24] Speaker 04: So can I ask on the jurisdictional question, why would Congress, under your reading, why would Congress have allowed for a statutory entitlement [00:16:36] Speaker 04: to interlocutory review in cases brought under subsection D, but not allowed for interlocutory review as an entitlement in other cases that also involve a defense of PrEP Act immunity. [00:16:49] Speaker 03: The majority of cases raising an assertion of subsection A immunity are going to be in state court. [00:16:55] Speaker 03: And Congress does not prescribe judicial procedures for suit in the state court act. [00:17:01] Speaker 03: So the more natural reasoning is Congress is providing procedures for suit in a federal court here, a specific special free judge court of the district court for the district. [00:17:12] Speaker 04: So you could, even if the majority of them are in state court and I don't... [00:17:15] Speaker 04: offhand have a base for disputing the empirical premise, but there's going to be other federal cases where it's not a case under subsection D, but it does involve an assertion of prep act. [00:17:27] Speaker 03: Certainly, there could be some. [00:17:29] Speaker 04: And why would Congress have said in that particular brand of cases that's brought under subsection D in the District Court for the District of Columbia, there can be an immediate entitlement to interlocutory review in the D.C. [00:17:41] Speaker 04: Circuit, but in other courts where an assertion of Pratt-Back immunity is made and there's then no statutory entitlement to interlocutory review to the regional court of appeals? [00:17:55] Speaker 03: Well, I think one would be for uniformity, that the procedures, it would be odd to have a different procedure in state court than in federal court just for invoking the normal immunity. [00:18:06] Speaker 03: I think another would be the potential that, as you know, and it's often briefed, whether there is some sort of co-inimmunity natural interlocutory appeal, that issue is a separate. [00:18:16] Speaker 01: But those two answers were with one another. [00:18:19] Speaker 03: Well, yes. [00:18:20] Speaker 03: Whether there's an interlocutory appeal in a state court action, Congress has nothing to do with. [00:18:27] Speaker 04: No, I'm just talking about other federal court actions, like this case. [00:18:31] Speaker 04: Yes. [00:18:32] Speaker 04: So in this case, what do you think would have happened if the defendants would have filed a notice of appeal in the Third Circuit? [00:18:39] Speaker 04: What would your position have been? [00:18:40] Speaker 03: Our position would be that they would immediately file a 1292-B motion. [00:18:44] Speaker 03: And in fact, this is actually... So you don't think there's collateral order review? [00:18:48] Speaker 03: I do not. [00:18:48] Speaker 03: And this is actually playing out right now in the Ninth Circuit, which actually shows why it's strange to have this being fought here at the same time. [00:18:57] Speaker 03: There was an appeal in one of the cases cited in our 28-A letter filed as a notice of appeal to the Ninth Circuit, and there's a motion to dismiss that appeal [00:19:05] Speaker 03: pending and the there is a state prison system. [00:19:08] Speaker 04: So I take it an argument that that a party like you would make and denying collateral order review is look, the statute already prescribes for interlocutory review in some situations. [00:19:21] Speaker 04: So that would be read to the exclusion of a non statutory collateral order appeal. [00:19:26] Speaker 04: So if we assume that your position is that there is no collateral order appeal absent some specification. [00:19:33] Speaker 04: particularly given that there's a specification under subsection 10, D10, that there's going to be an interlocutory review in some situations. [00:19:39] Speaker 04: Then I'd come back to my original question, and maybe I'm not stating the question right, but in federal cases that are not brought under subsection D, like this one, why would Congress have allowed for interlocutory review as a matter of statutory entitlement in D cases, but not allowed for it in a case like this? [00:19:58] Speaker 04: Why wouldn't they have allowed for an interlocutory appeal to the Third Circuit? [00:20:03] Speaker 03: Well, subsection D cases are just an entirely different piece. [00:20:07] Speaker 03: They have different pleading requirements, which the filing they have a special sanctions provision for the filing of cases on that only apply to subsection D cases. [00:20:17] Speaker 03: Congress clearly, we know, did not apply that for subset to cases like this one, because it says only in subsection D cases. [00:20:23] Speaker 03: We know that subsection E-5 provides that unlike your normal three-judge court, this is not immediately appealable to the Supreme Court. [00:20:35] Speaker 03: So they needed to have some provision. [00:20:36] Speaker 03: Okay, well, if it doesn't go to the Supreme Court, where does it go? [00:20:39] Speaker 03: Because usually 3 judge courts go right to the Supreme Court. [00:20:42] Speaker 03: So it says, okay, this 3 court, 3 judge court, you appeal an interlocutory appeal to the DC circuit. [00:20:49] Speaker 03: So I think that Congress needed to specify things and procedures for suit under subsection D, because it's this new animal. [00:20:55] Speaker 03: and it wanted to create special procedures for those suits. [00:20:59] Speaker 03: It did not create special procedures for any suit where a subsection A defense was raised at all. [00:21:05] Speaker 03: So it would be unusual to say it only created a special procedure for interlocutory appeals where a subsection A immunity defense was raised. [00:21:14] Speaker 01: In a way, the oddity of an appeal from a three-judge court to this court [00:21:22] Speaker 01: upon which the member of the three-judge court presumably also sits. [00:21:28] Speaker 01: The sloppy and strange character of that, in a way, seems to me to cut against you, because it means that the Congress that was drafting this was really doing novel things. [00:21:40] Speaker 01: And that might include having orders that, depending on whether their grants are denied, [00:21:51] Speaker 01: might go in one case to a regional circuit and in the other to the DC circuit. [00:21:55] Speaker 01: Do you see what I'm saying? [00:21:56] Speaker 01: That they're either on Ms. [00:21:59] Speaker 01: Eisenstein's view or on your view, whichever way you look at it, they are novel. [00:22:04] Speaker 01: novel aspects about these processes. [00:22:06] Speaker 03: I agree, Your Honor. [00:22:07] Speaker 03: And notably, this statute was enacted in 2005, and it is unusual that it's taken this long, even though there have been many cutback declarations for this to come up. [00:22:14] Speaker 03: But one clarification is actually believed that, as read, the three-judge court, unlike most three-judge courts, would not include a member of the D.C. [00:22:22] Speaker 03: Circuit because it actually carves out the provision [00:22:26] Speaker 03: For the creation of 3 judge courts that has the chief judge, your judge, as the one who would convene the court and says it says the chief judge suggesting of the district court. [00:22:37] Speaker 03: What to create the DC court now, of course, as far as I'm aware, this has never been applied. [00:22:43] Speaker 03: So I don't know if it would be. [00:22:45] Speaker 03: a fight between Chief Judge Srinivasan and Chief Judge Howell. [00:22:48] Speaker 03: But as you read it, it explicitly carves out the provision that would give the Chief Judge of the Circuit the power. [00:22:53] Speaker 03: And I think it would certainly be unusual, but I don't know if the Chief Judge of the District Court could appoint a judge of this court. [00:23:01] Speaker 03: But I agree. [00:23:01] Speaker 03: It is unusual. [00:23:02] Speaker 03: But if it is unusual and there is enough unusual that's explicit in subsection E, I think for this court to imply another unusual thing that would create such [00:23:13] Speaker 03: Difficult circumstances for district courts would be unnecessary. [00:23:17] Speaker 01: But really, the hurdle for us is that it's not an implication. [00:23:21] Speaker 01: A or 1 through 9 of subsection E all reference a suit under subsection D. And it is quite striking that that is just not there in E-10. [00:23:39] Speaker 01: And, you know, we are bound by the text. [00:23:42] Speaker 01: If Congress wanted to do this strange thing, it seems to me we're bound. [00:23:46] Speaker 01: And how do you explain? [00:23:47] Speaker 01: I mean, there are many ways that Congress could have referenced suit under subsection D, and it didn't in that. [00:23:57] Speaker 03: Well, I think the interesting thing is your both sides are asking the court to read actually an additional language. [00:24:03] Speaker 03: Fair acres is suggesting that the court should read in in any action in a another federal district court. [00:24:08] Speaker 03: There shall be an interlocutory appeal because it acknowledges. [00:24:13] Speaker 03: I think the term used in their brief is that would be a jurisdictional puzzle to read this as not having that limitation. [00:24:19] Speaker 03: to say that it's from any state court action, any administrative agency proceeding. [00:24:24] Speaker 03: It doesn't even reference rule 12. [00:24:26] Speaker 03: It just says a motion to dismiss. [00:24:28] Speaker 03: A motion to dismiss come in all shapes and forms. [00:24:30] Speaker 03: So I think that some term needs to be read into here unless a court should read it as reading any motion to dismiss filed in a, you know, state court in an administrative proceeding, anything at all. [00:24:43] Speaker 03: I think the argument today is that it does apply to state court. [00:24:46] Speaker 03: Right, and I think that would create, and perhaps that is the, I think the argument in the brief was that the court need not address it, but I think if that were to apply, then I think certainly there needs to be a more plain state. [00:24:58] Speaker 03: And I think even if the plain text of E10 on its own may suggest that there's no limitation, I think if you look at the structure of the suit as a whole, sorry, of subsection E and the statute as a whole, combined with the failure to amend 28 USC 1294, [00:25:15] Speaker 03: if meaning to suggest that it is only the subsection D actions. [00:25:21] Speaker 03: Notably, if you look at subsection E9, there's another sloppy point of this provision here. [00:25:28] Speaker 03: Subsection E9 refers to actions brought pursuant to subsection D, but then it also says any federal district court. [00:25:35] Speaker 03: But we know from other parts of the statute that there isn't any federal district court where a subsection D action is brought. [00:25:42] Speaker 03: It's only brought in this court. [00:25:44] Speaker 03: I'm sorry, we're in the DC district court. [00:25:46] Speaker 03: So there are some sloppy, as you said, provisions here. [00:25:49] Speaker 03: But I think that's when we look at what the consequences of different readings of the statute would be. [00:25:54] Speaker 03: And it would be very difficult for district courts to be having their opinions go to either the Third Circuit or this circuit, depending on which way they rule, and potentially be in a real catch 22. [00:26:04] Speaker 03: So you don't. [00:26:05] Speaker 04: Go ahead. [00:26:07] Speaker 04: Thanks. [00:26:08] Speaker 04: You don't see any negative implication in this statute vis-a-vis 1292B. [00:26:13] Speaker 04: You allow that 1292 B is always available when there's an all immunity. [00:26:18] Speaker 04: Yes. [00:26:18] Speaker 04: So in this case, so in this case, the 1292 B motion could be filed. [00:26:22] Speaker 03: Correct. [00:26:22] Speaker 03: And I think, you know, one issue that hasn't been briefed is not only this doesn't even such doesn't even say there shall be a right to an interlocutory appeal. [00:26:28] Speaker 03: It only says that shall have jurisdiction over an interlocutory appeal. [00:26:33] Speaker 03: So, everyone here is reading into the statute that there is a right to an interlocutory appeal, whereas the statute just says shall have jurisdiction. [00:26:41] Speaker 03: So, if we're really hyper technically focused, then. [00:26:45] Speaker 03: Fair question about the 1292 be position to this court. [00:26:48] Speaker 03: or would be invoking Cohen to this court. [00:26:51] Speaker 03: It would not be E10. [00:26:52] Speaker 03: So I think that the statute, because it's a little bit sloppy, everyone here is reading, trying to figure out what Congress meant here. [00:27:00] Speaker 04: Well, but it does say within 30 days. [00:27:02] Speaker 04: Yes. [00:27:03] Speaker 04: So which, I mean, I think the fact that it has a timeframe indicates that the mechanism for an appeal would be the appellate vehicle granted by 10. [00:27:13] Speaker 03: And I agree, that is why we did not move to dismiss her if that would be 1292B, but we have to read between the lines in this section. [00:27:20] Speaker 03: It is not a clear section. [00:27:22] Speaker 03: It is not the clearest way. [00:27:24] Speaker 03: If Congress wanted to say there is a right to an interlocutory appeal, I think we'd agree this is not the clearest way to say that. [00:27:29] Speaker 01: So isn't the closest analog of sort of venue, unusual venue for appeals, the habeas statute that Ms. [00:27:37] Speaker 01: Eisenstein refers to in her briefing, what's your answer to why that isn't? [00:27:41] Speaker 01: a similar case where the Congress clearly wanted to centralize in this court the consideration of cases coming from district courts in the region. [00:27:52] Speaker 03: Because that would be centralizing consideration of the issues. [00:27:56] Speaker 03: This is not dividing, sending to circuits all over the country issues depending on which way immunity rules and when in a case [00:28:05] Speaker 03: I mean, it's decided there's there would be no logical purpose for Congress to decide that DC circuit should hear make all prep law arising from denials of motions to dismiss and denials of motion for summary judgment, but not for grants of motion system, grants of summary judgment and. [00:28:25] Speaker 03: Sorry, and final post trial. [00:28:28] Speaker 04: So you tacked on the when and which is a point I was exploring a little bit earlier. [00:28:32] Speaker 04: Do you, is there any problem with that understanding? [00:28:35] Speaker 04: Because my understanding of the statute is that it's not just whether it's grant or denied, but it would be when there's an appeal for the denial. [00:28:42] Speaker 03: An appeal from the denial of a motion to dismiss only or motion for summary judgment, not an appeal from a denial post trial or at the end of the case. [00:28:50] Speaker 04: Correct. [00:28:50] Speaker 04: Is that the way you understand it too? [00:28:51] Speaker 04: So an appeal from denial post trial would go to the third circuit in this case. [00:28:55] Speaker 04: Correct. [00:28:55] Speaker 04: An appeal from denial under appellant's argument. [00:29:00] Speaker 04: An appeal from denial under [00:29:02] Speaker 01: And isn't Guam your very strong support for your position to the extent that the hurdle for us is the explicit language of E-10? [00:29:14] Speaker 03: Yes, your honor. [00:29:15] Speaker 03: So Guam explicitly makes clear that negative implication doesn't solve the answer. [00:29:20] Speaker 03: It's not dispositive here. [00:29:21] Speaker 03: And Guam, of course, there are differences between that statute, but the basic idea of a statute that listed enumerated various provisions, something was missing from one of them, and the Supreme Court says that's not, just because it was amended from that one doesn't make this statute make nonsense or force us to ignore the statutory scheme as a whole. [00:29:39] Speaker 01: In other words, just because it's admitted from one doesn't require us to read it more broadly. [00:29:45] Speaker 01: In fact, we read it as referring to the statute in which it's nested and only settlements of those circle claims, not more broadly settlements of other kinds of claims. [00:29:57] Speaker 04: That's correct, Your Honor. [00:29:58] Speaker 04: Can I ask one question on 1292B? [00:30:01] Speaker 04: This statute under 10, [00:30:04] Speaker 04: says taken within 30 days. [00:30:06] Speaker 04: I don't think there's a time limitation embedded in 1292B itself. [00:30:11] Speaker 04: And I don't know if you've looked at this or thought about this. [00:30:13] Speaker 04: But if the appellants filed a motion for 1292B certification now, what would your position be? [00:30:25] Speaker 03: I think we would oppose it on the merits. [00:30:28] Speaker 03: We would not oppose it as timely and consider there have been some sort of tolling. [00:30:32] Speaker 03: Of course, you know, if it extends jurisdictional, our position wouldn't necessarily matter in the Third Circuit, but we would not oppose it as untimely. [00:30:39] Speaker 03: Okay. [00:30:40] Speaker 03: And briefly on our just on on the merits my last 4 seconds. [00:30:44] Speaker 03: We believe that there's no catch 22 here that alleging that the deliberate indifference over those 3 month periods at the beginning of the pandemic that led to 97 of 600 residents dying is sufficient to state a manel claim and that it has nothing to do with. [00:30:59] Speaker 03: the affirmative administration to or used by an individual of a covered countermeasure, but rather woefully inadequate infection control policies. [00:31:07] Speaker 03: And while the size of time says there are no factual allegations in the complaint, that's just not true. [00:31:12] Speaker 03: For example, just take one very quickly is the specific allegation that fair acres consistently allowed COVID-19 positive sick individuals to work at the facility. [00:31:22] Speaker 03: That's not some broad [00:31:24] Speaker 03: boilerplate is the term used in the briefing. [00:31:28] Speaker 03: And that's insulting almost to say that that's not a specific allegation. [00:31:32] Speaker 03: So unless the court has any further questions, we ask you to dismiss the appeal. [00:31:37] Speaker 03: Thank you. [00:31:37] Speaker 04: Thank you, Mr. Pulver. [00:31:39] Speaker 04: Ms. [00:31:39] Speaker 04: Eisenstein, we'll give you the three minutes that you asked for for rebuttal. [00:31:44] Speaker 02: Thank you, Your Honor. [00:31:45] Speaker 02: I think that the conversation that we had with respect to the various ways in which the policy issues cut both ways in this case [00:31:54] Speaker 02: highlight a couple of things. [00:31:55] Speaker 02: First of all, this was a statute for an extraordinary measure passed for extraordinary time. [00:32:01] Speaker 02: And it was a statute that was designed to be highly protective of covered persons who were in the process of administering covered countermeasures. [00:32:10] Speaker 02: And all of that in a declared emergency. [00:32:14] Speaker 02: And so I think all of that points to the fact that looking at other examples for non-extraordinary times, routine type cases, [00:32:20] Speaker 02: is not the appropriate way to evaluate the statute, rather looking at the plain terms and the plain text and following it is. [00:32:28] Speaker 02: In terms of Mr. Polver's new argument that it creates jurisdiction rather than a right to appeal, I turn the court's attention to the language of 1292 itself, which itself says the courts of appeal shall have jurisdiction from appeals from. [00:32:42] Speaker 02: It doesn't grant a right to appellant to take appeal. [00:32:47] Speaker 02: So that's 1292A. [00:32:49] Speaker 02: And also that type of language is more or less repeated in 1292B. [00:32:53] Speaker 02: So the fact that this mirrors the language of 1292A in terms of providing this court jurisdiction only highlights the fact that it is one that gives a right to appeal, not just one that opens a jurisdictional opportunity for appeal without additional appeal creating language. [00:33:11] Speaker 02: I wanted to say a few additional words about the merits in my remaining time, which is that we're this court to reach the merits and I hope that it does follow the plain language of the statute. [00:33:23] Speaker 02: And I also don't think that 1292B, which provides discretion to the district court itself, which denied the motion, and as well as requires another barrier to certification of a 1292B in the Third Circuit is the appropriate [00:33:37] Speaker 02: or, I mean, we would seek it, but I don't think it's a viable alternative to E10, which is a direct right of appeal from a denial of immunity. [00:33:46] Speaker 02: But if this court, and I hope it does, reach the merits, the district court did incorrectly deny the motion to dismiss on three errors. [00:33:54] Speaker 02: It incorrectly read the PREP Act as too narrowly limited to those allegations that have a direct causal relationship to the affirmative use of covered countermeasures, but the PREP Act is far broader than that. [00:34:06] Speaker 02: in terms of applying to claims for loss that relate to the use or administration of covered countermeasures. [00:34:12] Speaker 02: It failed to look at the claim for loss as a whole. [00:34:15] Speaker 02: So the plaintiffs are masters of the complaint, but now want this court to ignore whole swaths of their own allegations that directly implicate the PREP Act. [00:34:24] Speaker 02: And it's their obligation to plead non-barred claims, not this court's obligation to sift through their allegations to pick out any that might fall outside the PREP Act immunity. [00:34:36] Speaker 02: And it properly applied the planning standard for Monal. [00:34:39] Speaker 02: Mr. Pulver just said that there was an allegation of failure to have a policy of isolation and other factors to protect from COVID positive individuals. [00:34:52] Speaker 02: But the facts of this particular case that are alleged, the actual factual allegations, don't establish a policy or one that caused a violation of federal rights, and particularly one that's an actionable violation of federal rights. [00:35:05] Speaker 02: Thank you very much, Your Honor. [00:35:06] Speaker 02: We ask this court reverse. [00:35:07] Speaker 04: Can I just ask you one question, Ms. [00:35:09] Speaker 04: Eisenstein, just as you're closing? [00:35:10] Speaker 04: So I just want to make sure I didn't mishear you. [00:35:12] Speaker 04: Under the 1292B alternative, I take the point that there's a layer of discretion at both levels, of course, that kick in. [00:35:21] Speaker 04: It hasn't been sought yet in this case, right? [00:35:23] Speaker 04: I just want to make sure I didn't mishear you. [00:35:26] Speaker 02: That's correct, Your Honor. [00:35:26] Speaker 02: We have not sought 1292B certification, and certainly we would [00:35:32] Speaker 02: believe that it meets all of the criteria for 1292B as well. [00:35:37] Speaker 02: In addition to meeting the criteria for an appeal directly to this court under subsection E10. [00:35:43] Speaker 04: Thank you, counsel. [00:35:44] Speaker 04: Thank you to both counsel. [00:35:46] Speaker 04: We'll take this case under submission.