ESTATE OF GEORGE WATTS JR v. PETE HEGSETH (2026)

ORDER

Per Curiam: The estate of George Watts, Jr., brought this one-count suit for willful misconduct against the Secretary of the Department of Defense in his official capacity, alleging that Watts died due to myocarditis caused by a Covid-19 vaccine that the Department had supported through Operation Warp Speed. ECF 1. Judge Nichols initially dismissed the case for lack of subject-matter jurisdiction. ECF 17. The estate moved for reconsideration on the ground that, under the Public Readiness and Emergency Preparedness (PREP) Act, a three-judge panel was required to decide the estate's claim. ECF 18; see also 42 U.S.C. § 247d–6d(e)(5). Judge Nichols granted that motion and requested that the Chief Judge of the Court of Appeals convene a three-judge panel. ECF 25. Chief Judge Srinivasan accordingly designated Circuit Judge Childs to preside over a three-judge panel with District Judges Cobb and Nichols. ECF 26.

The estate, however, objects to the composition of the panel on three grounds: (1) the District Court Clerk—not Chief Judge Srinivasan—should have assigned the panel, (2) the panel should be composed of only district court judges, and (3) the panel should have been made up of a new selection of judges that did not necessarily include Judge Nichols. ECF 29 at 2. The government responds that the panel is properly constituted. ECF 30.

The PREP Act directs that a three-judge panel “shall be assigned” for a willful misconduct action and that “[s]uch panel shall have jurisdiction over such action for purposes of considering motions to dismiss, motions for summary judgment, and matters related thereto.” 42 U.S.C. § 247d-6d(e)(5). Nothing in the Act specifies who should assign the panel nor which judges should constitute it. See id. Instead, the Act's only reference to rules for the formation and composition of the panel comes indirectly from its mention of 28 U.S.C. § 2284, which lays out default procedures for three-judge panels. While the Act provides that “paragraph (3) of subsection (b) of section 2284 of Title 28 shall not apply,” 42 U.S.C. § 247d-6d(e)(5), the Act contains no indication that the rest of section 2284(b) does not apply. In other words, all the requirements of section 2284 appear to apply except for the provision that would permit “[a] single judge [to] conduct all proceedings except the trial, and enter all orders permitted by the rules of civil procedure except as provided in this subsection.” 28 U.S.C. § 2284(b)(3).

The remaining default rules prescribing “the composition and procedure of the court” therefore govern this case.¹ Id. § 2284(b). Most relevant here, section 2284(b)(1) provides that “[u]pon the filing of a request for three judges, the judge to whom the request is presented shall ․ notify the chief judge of the circuit, who shall designate two other judges, at least one of whom shall be a circuit judge.” Id. § 2284(b)(1). That is precisely what happened here: Judge Nichols notified Chief Judge Srinivasan of the need to form a three-judge panel, ECF 25, and Chief Judge Srinivasan designated Circuit Judge Childs and District Judge Cobb to form the remainder of the panel. ECF 26. The panel therefore “ha[s] jurisdiction over [this] action for purposes of considering motions to dismiss ․ and matters related thereto.” 42 U.S.C. § 247d-6d(e)(5).

Moving to the substance of this suit, the estate claims that the government misrepresented the safety of the vaccines it approved, which induced Watts to take a Covid-19 vaccine that caused his death. ECF 1. The government moved to dismiss, asserting its immunity from suit. ECF 13. For the same reasons provided in Judge Nichols's original dismissal order, the panel grants the government's motion.

The estate responded to the motion to dismiss by arguing that the PREP Act is unconstitutional insofar as it provides immunity from suit because it (1) violates the Fifth Amendment's Due Process Clause and (2) amounts to a taking of a plaintiff's cause of action. ECF 14 at 4–11. But the estate misunderstands the source of the immunity asserted by the government. While the PREP Act provides immunity from suit under certain circumstances, see 42 U.S.C. § 247d-6d(a), the government does not invoke that provision here. Rather, the government asserts its general immunity from suit, which, independently of the PREP Act, “bar[s] suits for money damages against officials in their official capacity absent a specific waiver by the government.”² Clark v. Libr. of Cong., 750 F.2d 89, 103 (D.C. Cir. 1984) (emphasis omitted).

The PREP Act, rather than waiving such immunity, explicitly preserves it. See 42 U.S.C. § 247d-6d(f) (“Nothing in this section shall be construed ․ to waive sovereign immunity or to abrogate or limit any defense or protection available to the United States or its agencies, instrumentalities, officers, or employees.”). The estate asks this panel to sever that provision of the PREP Act. But even if the panel were to do so, it lacks the power to replace that provision with a specific waiver of sovereign immunity—without which the estate's suit cannot proceed.

Accordingly, the motion to correct mistake, ECF 29, is denied; the motion to dismiss, ECF 13, is granted; and the case is dismissed for lack of jurisdiction. A Judgment will be entered contemporaneously with this Order. This is a final appealable Order.

FOOTNOTES

1.   Section 2284(b) uses mandatory language to impose the default requirements for “any action required to be heard and determined by a district court of three judges under subsection (a),” 28 U.S.C. § 2284(b) (emphasis added), which, in turn, encompasses any situation in which a three-judge panel is “otherwise required by Act of Congress,” id. § 2284(a). Here, this willful misconduct action falls within the ambit of section 2284(a) because the PREP Act requires a three-judge panel for these kinds of claims and therefore triggers the applicability of section 2284(b)’s procedures.

2.   To the extent the estate asks the panel to declare sovereign immunity as a whole unconstitutional, “it is too late in the day, and certainly beyond the competence of this court, to take issue with a doctrine so well-established.” Stanko v. Oglala Sioux Tribe, 916 F.3d 694, 697 (8th Cir. 2019) (quoting Alltel Commc'ns, LLC v. DeJordy, 675 F.3d 1100, 1106 (8th Cir. 2012)).

J. MICHELLE CHILDS United States Circuit Judge, CARL J. NICHOLS United States District Judge, JIA M. COBB United States District Judge