Oregon’s governor and the director of the Oregon Health Authority are immune from lawsuit or liability stemming from the priorities they set that established who received COVID-19 vaccines first in state prison, a panel of the 9th U.S. Circuit Court of Appeals ruled Thursday.

The three-judge panel’s ruling reverses a lower court’s refusal to grant the governor’s and health-authority director’s motion to dismiss a class-action suit by current and former inmates.

At the start of the COVID-19 pandemic, then-Gov. Kate Brown and Oregon Health Authority Director Patrick Allen set priority tiers to guide the rollout of the state’s supply of vaccine, which became available in February 2021. They put state prison inmates at a lower priority than correctional officers.

The appellate panel found that the “administration” of the vaccination included its prioritization when supply was limited, and that the federal Public Readiness and Emergency Preparedness Act (PREP), passed in 2005, extended immunity to people who make policy-level decisions on who was eligible to receive the vaccine first.

Attorneys for the prisoners, who argued that the federal law did not extend immunity to “policy-level” decisions on the prioritization of the vaccines, contended that the governor and the health authority were “deliberately indifferent” to state prisoners’ “serious medical needs and physical safety,” in violation of their civil rights.

The class-action suit included inmates who were diagnosed with COVID-19 while in state custody and the estates of inmates who died from the virus or COVID-19 contributed to their deaths.

U.S. Magistrate Judge Stacie F. Beckerman ruled in 2022 that the wrongful-death class in Oregon was likely to exceed 40 people, while the class of prisoners who were infected with COVID-19 while in state prison was more than 3,600 people.

“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,” Circuit Judge Jennifer Song wrote for the panel.

Circuit Judges Johnnie B. Rawlinson and Carlos T. Bea joined in Song’s ruling.

The Oregon Health Authority had recommended a “phased allocation” of the vaccines. Health care workers, residents in long-term care facilities and corrections officers were eligible for vaccination in what was called Phase1A. Then, teachers, child care workers and persons age 65 or older were eligible in Phase 1B.

Neither phase covered adults in custody, but those who met the above eligibility criteria were prioritized for vaccination on the same terms as the general population, according to the court’s ruling. For example, all inmates who were 65 or older were eligible for vaccination in Phase 1B.

Lawyers who filed the suit argued that the state’s decision to issue vaccines to corrections officers before most state prisoners violated the Eighth Amendment’s prohibition against cruel and unusual punishment.