Politella Petition for Writ of Certiorari

vs. Windham Southeast School District and State of Vermont, et al.

John Klar

Nov 20, 2024

(Tony, Shujen, and “Leo” Politella.)

The Politellas filed the following Petition with the uS Supreme Court on November 19, 2024:

No ____________

In The SUPREME COURT OF THE UNITED STATES

DARIO and SHUJEN POLITELLA and

Their Minor Child, L.P.,

Petitioners,

WINDHAM SOUTHEAST SCHOOL DISTRICT and

THE STATE OF VERMONT, et al,

Respondents.

On Petition For Writ Of Certiorari

To The Vermont Supreme Court

PETITION FOR A WRIT OF CERTIORARI

John Klar, Esqr.

Counsel of Record

Ronald Ferrara, Esqr., on the Petition

Fitts, Olson, Giddings & Ferrara, P.L.C.

16 High Street, Brattleboro, Vermont 05301

farmerjohnklar@gmail.com

ron.ferrara@foglaw.com

(802) 254-2345

November 19, 2024 Counsel for Petitioners

QUESTION PRESENTED FOR REVIEW

In Vermont, a young schoolboy was injected

with a emergency use “covered countermeasure”

against his and his parents’ express refusals. Officials

claimed “mistake”; the family filed suit. The trial

court dismissed all claims and on appeal, the Vermont

Supreme Court opined that all Respondents are

immune from suit under the “Public Readiness and

Preparedness Act (“PREPA”). The Vermont Supreme

Court misapprehended PREPA’s scope, and the

framework it intends. A decision that defines the

scope of PREPA preemption and immunity would be

very useful to courts, authorities and litigants who

struggle beneath the current tangled jurisprudence,

much of it poorly reasoned.

Under PREPA, “a covered person shall be

immune from suit and liability” for “all claims...

caused by, arising out of, relating to, or resulting

from” administration of a “covered countermeasure.”

This immunity is conditioned on compliance with

emergency use protocols and all public health guidance

of the “Authority Having Jurisdiction.”

Question: whether the Vermont Supreme Court

has construed PREPA’s immunity beyond Congress’

intention?

PARTIES TO THE PRECEEDINGS BELOW

Petitioners are the Politella family: L.P. (a

young boy) and his parents. As Plaintiffs in Vermont

Superior Court, Civil Division, Windham Unit, their

Complaint and Amended Complaint were dismissed

for failure to state a claim due to a lack of subject

matter jurisdiction based on federal preemption

under PREPA. In Vermont Supreme Court, they were

Appellants in an unsuccessful appeal.

Respondents are the Windham Southeast

School District and the State of Vermont, along with

their agents. These are: Patricia Walior, First Grade

Teacher; Amy Mejer, School Nurse; Jon Sessions,

Vice Principal; Kelly Dias, Principal; Mark Speno,

Windham Southeast School District Superintendent;

John and/or Jane Does #1, #2, #3, #4, & #5; Susan

Slowinski, M.D., and Dianne Champion, Vermont

Department of Health Public Health Director.

These named parties were sued in their official

capacities, and appeared collectively as Defendants in

the Windham County Superior Court. On appeal, they

were Appellees in Vermont Supreme Court, and did

prevail.

RELATED PROCEEDINGS BELOW

1. Dario Politella, et al v. Windham Se. Sch.

Dist., et al, (Vermont Super. Ct., 22-CV-01707 (Dec.

26, 2022, order dismissing complaint)) and (June 25,

2023, dismissing amended complaint). Appendix (a),

(b) and (c).

In Windham Superior Court, there were plead-

ings pursuant to Respondents’ Rule 12 motion. Peti-

tioners do not request this Court review these trial

court pleadings.

2. Dario Politella, et al v. Windham Se.

School District, et al (Vermont S. Ct., 2024 VT 43, __

A.3d. __, WL 3545717 (July 26, 2024, decision affirm-

ing), and (Aug. 23, 2024, re-argument denied). Appen-

dix (d) and (e).

In Vermont Supreme Court, there were proce-

dural and supplemental filings and orders regarding

timing, etc. Oral argument was heard, en banc, but

the transcript was unavailable, when this petition was

filed. Appellants’ and Appellees’ Briefs are included as

Appendix (f), (g) and (h).

TABLE OF AUTHORITIES

CASES

Barron v. Benchmark Senior Living, LLC

22-cv-318-SE (D.N.H. February 6, 2023).......................31

Bates v. Dow Agrosciences LLC, 544 U.S. 431 (2005)...17

Bell v. Hood, 327 U.S. 678 (1946)...................................46

Bird v. Martinez-Ellis, 2022 U.S. App. LEXIS 35749

(Oct. 26, 2023, 10th Cir.).................................................24

Bivens v. Six Unknown Agents of the

Federal Bureau of Narcotics, 403 U.S. 388 (1971.........46

Cagle v. NHC HealthCare-MD Heights, LLC

22-2757 (8th Cir. August 28, 2023)................................34

Cannon v. Watermark Retirement Communities, Inc.

45 F.4th 137 (D.C. Cir. 2022)..........................................27

Coleman v. Intensive Specialty Hosp. LLC

No. CV 21-0370, 2022 WL17779323

(W.D. La., Dec. 19, 2022)...........................................31, 41

Coleman v. Sharp Memorial Hosp.

No. 37-2023-00033307-CU-PO-CTL

2024 Cal. Super. LEXIS 10893

(Cal. Sup. Ct. March 29, 2024) .......................................32

Conyers v. Isabella Geriatric Ctr.

2024 NY Slip Op 33661(unpublished)

No. 153668/ 2022, (N.Y. Sup. Ct. Oct. 15, 2024) ...........45

Crupi v. The Heights of Summerlin, LLC

2:21-cv-00954-GMN-DJA, (D. Nev. Feb. 17, 2022) .......41

Cruzan ex rel. Cruzan v. Director, Mo. Dep’t of Health

497 U.S. 261 (1990...........................................................51

De Becker v. UHS of Delaware, Inc.

No. 85968, 140 Nev. ____ (Sept 19, 2024 ......................24

Delaware v. Prouse, 440 U.S. 648 (1979).......................46

Dressen v. Astrazeneca, AB, et al,

2:24-cv-00337-RJS (D. Utah, Nov. 4, 2024).............42, 43

Dubin v. U.S., 599 U.S. 110 (2023).................................39

Dupervil v Alliance Health Operations, LLC,

516 F.Supp.3d 238 (E.D. N.Y. 2021) ..............................45

Elkins v. U.S, 364 U.S. 206 (1960).................................45

Est. of Maglioli v. Andover Subacute Rehab. Ctr. 1,

478 F.Supp. 3d. 518, 529 (D.N.J. 2020)

aff’d sub nom. Maglioli v. All. HC Holdings LLC

16 F.4th 393 (3rd Cir. 2021) ...........................................41

Est. of Schleider v. GVDB Operations, LLC

No. 21-11765 (Oct. 31, 2024, 11th Cir. 2024) ..........34, 40

Goins v. Saint Elizabeth Med. Ctr.

640 F.Supp.3d 745 (E.D. Ky.)(2022)

(aff’d, 6th Cir. Jan 22, 2024)...........................................43

Hampton v. California

83 F.4th 754 (9th Cir. 2023.......................................39, 40

Happel, et al v. Guilford Bd. Of Educ.

No. 86P24, 901 S.E. 2d 231 (NC Super. Ct.2024) .........24

Happel v. Guilford Cty Bd. Of Educ.

900 S.E.2d 666, (NC. 2024)(currently).....................22, 24

Hatcher v. HCP Prairie Vill. KS OPCO LLC,

20-2374, 515 F.Supp.3d 1152 (D. Kan. 2021)................32

Health Freedom Defense Fund, Inc. v. Carvalho

No. 22-55908 (9th. Cir. 2024)..........................................51

Heights of Summerlin, LLC v. 8th Jud. Dist. Ct.

140 Nev. Adv. Op. 65, 86214 (Nev. Oct. 3, 2024) ..........41

Hogan, et al, v. Lincold Med. Partners, et al

Lin-24-209 (Me. S. Ct., 2024)..........................................24

Hudak v. Elmcroft of Sagamore Hills

58 F.4th 845 (6th Cir. 2023)............................................34

In re: Investigation Into Regulation Of Voice Over

Internet Protocol Services

2013 VT 23, 193 Vt. 439 (2013) ......................................35

Jacobson v. Massachusetts

197 U.S. 11 (1905) .....................................................47, 50

Jarecki v. G.D. Searle & Co.

367 U.S. 303 (1961) .........................................................40

Jones v. U.S

529 U.S. 848 (2000) .........................................................48

Kehler v. Hood

4:11-CV-14162012. WL 1945952 (E.D. Mo (2012) ........31

Leroy v. Hume

21-2158-cv (2nd Cir. Apr. 13, 2023) .........................29, 45

Maglioli v. Alliance HC Holdings LLC

16 F.4th 393 (3rd Cir. 2021) ...........................................34

Manyweather v. Woodlawn Manor, Inc.,

40 F.4th 237 (5th Cir. 2022)............................................40

Martin v. Petersen Health Oper., LLC,

37 F.4th 1210 (7th Cir. 2022) .........................................34

McDonnell v. U.S.

579 U.S. 550 (2016)...................................................... 40

Meyer v. Nebraska

262 U.S. 390 (1923)...................................................... 49

Mitchell v. Advanced HCS, L.L.C.

28 F.4th 580 (5th Cir. 2022)............................................34

M.T. v. Walmart Stores, Inc.

63 Kan. App 2d 401, 528 P.3d 1067 (Kan App. 2023).... 24

New Jersey v. T. L. O.

469 U.S. 325 (1985)...................................................... 46

Nixon v. Condon

286 U.S. 73 (1932) ...........................................................46

Nowacki v. Gilead Sciences, et al.

2:23-cv-10276 (E.D. Mich., 2023)....................................32

N.Y.S. Conf. of Blue Cross & Blue Shield

Plans v. Travelers Ins. Co.,

514 U.S. 645 (1995) .........................................................39

Parham v. J.R.

442 U.S. 584 (1979) .........................................................49

Parker v. St. Lawrence Cnty. Pub. Health Dept.

102 A.D.3d 140, 954 NYS.2d 259

(N.Y.2012) ..................................................... 22, 25, 34, 38

Pierce v. Society of Sisters

268 U.S. 510 (1925)...................................................... 49

Pirotte v. HCP Prairie Vill. KS OPCO LLC

580 F. Supp. 3d 1012 (D. Kan. 2022) .............................40

Politella, et al v. Windham Se. Sch. Dist., et al

(Vt. Super. Ct., 22-CV-01707).........................................21

Politella, et al v. Windham Se. Sch. Dist, et al

(Vt. 2024 VT 43, __ A.3d. __, WL 3545717) .............22, 35

Saldana v. Glenhaven Healthcare, LLC

27F.4 679 (9th Cir. 2022) cert. denied,

143 S.Ct 444 (Nov. 21, 2022) ..........................................34

Shapnik v. Hebrew Home for the Aged at Riverdale,

535 F.Supp.3d 301 (S.D.N.Y. 2021)....................28, 29, 44

Solomon v. St. Joseph’s Hosp. HCS of Long Island, Inc.

21-CV-2729, aff’d Mar. 7, 2023 (2nd Cir. 2023) ..............34

Storment v. Walgreen, Co.

2022 WL 2966607 (D.N.M. July 27, 2022).....................24

Tinker v. Des Moines Indep. Cmty. Sch. Dist.

393 U.S. 503 (1969) .........................................................25

Troxel et vir. v Granville

530 U.S. 57 (2000) .................................................... 49, 50

Turner v. Bristol At Tampa Rehab. & Nursing Ctr.

8:21-cv-0719-KKM-CPT (M.D. Fla. Sept. 20, 2021)......37

Vaughan v. Genesis HealthCare, Inc.

C.A. S22C-07-005 MHC (Del. Sup. Ct. Feb 06, 2024).....44

Vernonia School Dist. v. Acton

515 U.S. 646 (1995) ......................................................45

Washington v. Glucksberg

521 U.S. 702 (1997) ...................................................49, 51

Wisconsin v. Yoder

406 U.S. 205 (1972) ................................................49, 50

Zullo v. State

No. 17-284, 205 A.3d 466 (Vt. 2019)...............................20

CONSTITUTIONAL PROVISIONS

1. U.S. Const. amendment IV, 1 ............................ 45, 47

2. U.S. Const. amendment X, 1.................................... 47

3. Vt. Const. article XI, 1:....................................... 20, 47

STATUTES

18 V.S.A. §1852(A)(5) ..................................................... 29

21 U.S.C. §360bbb-3(a)(6)(e)(1)(A)(ii)(III)...... 18,25,29,32

42 U.S.C. §247d-6d(a)(2)(A)..................................... 25, 26

42 U.S.C. §247d-6d (a)(2)(B).......................................... 26

42 U.S.C. 247d-6d(a)(8)(A) and (B) ............................... 36

42 U.S.C. §247d-6d(c)..................................................... 35

42 U.S.C. § 247d 6d(d)(1) ............................................... 27

42 U.S.C. §247d-6d(e)(1) ................................................ 27

42 U.S.C. §247d-6d(i)(2)(B)(iv) ..................................... 43

42 U.S.C. §247d-6e(a)..................................................... 27

45 C.F.R. 46..................................................................... 29

OTHER AUTHORITIES

85 Fed. Reg. 7316 ...........................................................27

85 Fed. Reg. 18250 .........................................................27

Farrell, R., “Why Grammar Matters: Conjugating

Verbs in Modern Legal Opinions”,

40 Loy.U.Chi. L.J. 1, 19 (2008))......................................43

“Governor Phil Scott and Dr. Mark Levine Discuss

Delta, Vaccine Effectiveness & Pandemic Divisiveness

at Weekly Covid-19 Briefing”, Press Conference

Wed., Sept. 28, 2021........................................................18

HHS Office of the Secretary, “Advisory Opinion 20-04 on

[PREPA] and the Secretary’s Declaration Under the Act”

October, 2020, as modified on October 23, 2020.......28, 30

HHS Office of the Secretary, “Advisory Opinion on

[PREPA] and the March 10, 2020 Declaration Under the

Act” April 17, 2020, as modified on May 19, 2020 ........28

HHS Secretary, “Declaration Under [PREPA]”

October 23, 2020..............................................................28

Mascott, J., U.S. Dep. Asst. Atty. “General Preemption

of State and Local Requirements Under a PREP Act

Declaration; Memorandum Opinion For (HHS)

General Counsel”, January 19, 2021..................... 37, 38

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW .....................2

PARTIES TO THE PROCEEDINGS BELOW................3

RELATED PROCEEDINGS BELOW .............................4

TABLE OF AUTHORITIES .............................................5

TABLE OF CONTENTS.................................................14

JURISDICTIONAL STATEMENT................................16

STATEMENT OF THE CASE........................................17

A. Introductory Statement ..........................................17

B. Three Years Ago ......................................................18

C. Superior Court Proceedings....................................20

D. Vermont Supreme Court.........................................22

E. Conclusion................................................................23

PETITION FOR WRIT OF CERTIORARI....................24

Reasons for Granting the Petition .............................. 24

I. This Issue Presented Is Recurring, and This Case

Provides An Excellent Vehicle for Resolving

It ............................................................................ 24

II. Courts Misapprehend PREPA Immunity..............26

a. PREPA Immunity is Conditional........................ 26

III. Courts Misapprehend PREPA Preemption.......... 33

a. Only Willful Misconduct Resulting in Death or

Serious Bodily Injury is Federally Preempted.... 33

b. States Are Preempted From Regulating

Countermeasures, Not From Hearing State Law

Claims................................................................... 36

IV. Petitioners’ Claims Do Not “Relate To”

The Administration of a Covered

Countermeasure ................................................... 39

V. Most Respondents Are Not “Covered

Persons”................................................................. 43

VI. The Vermont Supreme Court’s Ruling Has

Deprived Petitioners of Rights Recognized

By This Court....................................................... 45

a. Regarding the Fourth Amendment...................... 45

b. Regarding the Tenth Amendment ....................... 47

c. Regarding Petitioners’ Parental Rights .............. 49

VII. Conclusion............................................................. 53

APPENDICES (Filed Electronically)

a. Petitioners’ Amended Complaint

b. Order Dismissing Complaint

c. Order Dismissing Amended Complaint

d. Opinion of the Vermont Supreme Court

e. Order Denying Motion for Re-argument

f. Petitioner-Appellants’ Vermont Court Brief

g. Respondent-Appellees’ Vermont Court Briefs

h. Petitioner-Appellants’ Vermont Court Reply Brief

JURISDICTIONAL STATEMENT

This Court's jurisdiction to review the decision

of the Vermont Supreme Court rests on 28 U.S.C.

§1257(a).

The Vermont Supreme Court denied a

rehearing, August 23, 2024. This Petition was timely

filed within ninety calendar days of denial, per 28

U.S.C. §2101(c).

STATEMENT OF THE CASE

A. Introductory Statement– Petitioners

respectfully request this Honorable Court to review

a recent opinion of the Vermont Supreme Court that

misapprehends PREPA immunity to affirm dismissal

in derogation of their rights. The issue echoes in

courtrooms nationwide, with differing results, and

this will fester without this Court’s direction.

At a minimum, this Honorable Court should

vacate and remand with instructions so the Vermont

Court can take into account its guidance regarding

PREPA’s scope. However, it would be best to grant

certiorari and restore protections to victims similarly

situated across the U.S.

The Windham Court misapprehended the scope

of PREPA preemption, which is akin to that detailed

in Bates v. Dow Agrosciences LLC, 544 U.S. 431,

452 (2005), i.e., it preempts any state “statutory or

common-law rule that would impose a...requirement

that diverges from those set out in” PREPA, regarding

labels, packaging, storage, prescription, distribution,

administration, etc. of a covered countermeasure.

On appeal, the Vermont Court piled further

harm on a victimized child and his family by

immunizing state actors who— incentivized to

pursue federal objectives in a public school — broke

the law and breached their duties. Respondents are

not immune. The opinion is erroneous.

The Vermont Supreme Court’s ruling conflicts

with established law and yields a horrible result.

State actors who misrepresent and fail in their duty

to safeguard a boy and inject him with an emergency

countermeasure for pay, against prohibitions —

while usurping fundamental rights and violating

state law and PREPA — do not get immunity under

PREPA. The outcome is unconscionable.

B Three Years Ago - On October 29, 2021,

Pfizer, Inc. received emergency authorization

(“EUA”) from the U.S. Food & Drug Administration

(“FDA”) for use of its BioNTech in children ages 5–11,

which required consent. 21 U.S.C. §360bbb-3(a)(6)(e)

(1)(A)(ii)(III). Vermont sought to excite demand by

announcing its funding incentives to inject children

with BioNTech, a month before the EUA.1

1 “I have Directed the Agency of Education to reserve $2

million in [ostensible American Rescue Plan Act “ARPA”] grant

dollars for schools who achieve high vaccination rates. There will

be benchmarks with corresponding awards as a school reaches

higher percentages. Funds will be awarded to schools when

they reach those thresholds....” Governor Phil Scott and Dr.

Mark Levine Discuss Delta, Vaccine Effectiveness and Pandemic

Divisiveness at Weekly Covid-19 Briefing, Wed., Sept. 28, 2021.

What happened thereafter was nightmarish. On

November 12, 2021, Respondents held a clinic. L.P.

was seized from his classroom, taken by unknown

“Does” and forcibly injected— under his protest,

against his parent’s’ wishes and without their

consent, and against the EUA.

Oddly, this scenario had been discussed,

just days before. Given BioNTech’s novelty and his

son’s age, Mr. Politella had not registered L.P. for

the injection, and on November 10, 2021, he spoke

with Vice Principal Sessions regarding inadvertent

injection, as he did not want L.P. to receive a shot.

Mr. Politella worried about his son’s safety in a

busy clinical milieu and wondered if he should keep

him out of school that day. Mr. Sessions stated that

there were not as many signed up for the injection

as expected, so there was no risk of L.P.’s accidental

injection at school.

Mrs. Politella relied on Mr. Sessions’ assurance,

and brought L.P. to school. Unfortunately, the

“mistake” that Mr. Sessions stated could not happen

did occur, violating Vermont law, the EUA, and the

Politellas’ parental rights.

When Mrs. Politella picked L.P. up at school,

he had another boy’s name on his shirt. L.P. told her

that officials stated he had been a “very brave boy”

that day at school.

Mrs. Politella soon began to realize that her

son had been injected at school, and she became very

distressed. It was so obvious that L.P. feared he had

done something to upset his mother. Not until the

next day did Mr. Politella receive any messages from

Respondents about their error.

Meanwhile, Mrs. Politella grew increasingly

upset, as no one would explain how this mistake

happened. Convinced that officials did not know who

her son was, and therefore were unable to keep him

safe and could not honor specific directions regarding

his care, Mrs. Politella took L.P. out of school and

enrolled him privately, incurring expenses.

C Superior Court Proceedings – Petitioners

filed suit alleging, inter alia, Vermont Title 18

violation, fraud, battery, infliction of emotional

distress, premises liability, and gross negligence. On

Rule 12 Motions, the court held that Petitioners failed

to state a claim for relief for a lack of subject matter

jurisdiction by preemption. All claims were dismissed

without a hearing. An amended complaint alleged,

under Vermont’s Constitution, unlawful seizure2

, and

recited Respondents’ glaring failures to: (a) vet and

2 “Article 11 “unequivocally sets forth a single specific

right of the people to be free from unwarranted searches and

seizures [so] that provision is manifestly self-executing.” Zullo v.

State 205 A.3d 466 (Vt. 2019) at ¶35.

train personnel; (b) verify that L.P. was the proper

child before seizing him; (c) ask L.P. for his name, date

of birth or any identifying material; (d) respect L.P.’s

protests, as they took him out of class and injected

him; (e) identify L.P. as unregistered and lacking

the required consent; (f) compare L.P.’s nametag

with those boys, already injected; (g) notice that the

other boy had already been injected; (h) implement

procedures and take reasonable precautions to avoid

mix-ups; (i) exercise the requisite proficiencies,

(i.e., unprofessional conduct); (j) comply with EUA

protocols; and, (k) protect L.P from unsafe conditions

at the school.

The Court dismissed the amended complaint,

ruling that the claims “cannot be litigated in this

forum”, as they arise from “affirmative administration

of a Covid-91 (sic ) [countermeasure] and [PREPA

preemption] mandated the conclusion that they could

not be litigated in this Court.” 3

3 Politella et al v. Windham S.E. Sch Dist., et al, “Entry

Regarding Motion”, (Vt. Sup. Ct. June 25, 2023, 22-CV-01707)

D. Vermont Supreme Court- Petitioners

appealed. Briefs were filed and arguments held.

The Court affirmed on immunity grounds. Associate

Justice Carroll, writing for a unanimous Court,

held that preemption arguments were “misplaced”,

and did not analyze them, despite the lower court’s

reliance upon this doctrine in its dismissals.

The Court opined that when PREPA

“immunizes a defendant, [it also] bars all state-law

claims against that defendant....” It held that “every

defendant in this case” is immune, “and this fact

alone is enough to dismiss [it].”4

The Court relied upon Parker v. St. Lawrence

Cnty. Pub. Health Dept to rule that PREPA preempts

“all state law tort claims arising from” administration

of a covered countermeasure, “including one based

upon...failure to obtain consent.” 102 A.D.3d 140, 954

N.Y.S.2d 259 (N.Y. App. 2012). The Vermont Supreme

Court also relies upon Happel, et al v. Guilford Bd.

Of Educ. No. 86P24, 901 S.E. 2d 231 (2024), currently

taken up on appeal by the North Carolina Supreme

Court regarding PREPA immunity in the context of

a statutory violation, and still undecided.

4 Politella et al v. Windham S.E. Sch Dist., et al, ___ A.3d.

___, 2024 VT 43, WL 3545717, at ¶9. (Vt S. Ct.)

E. Conclusion – Petitioners question the

motivation of Vermont and its schools, and have

lost trust in its court system to fairly administer

justice. Congress did not draft PREPA to preempt

fundamental rights and very colorable claims against

state actors who deny them. It intended for PREPA

to embody informed consent and a right of refusal for

emergency countermeasures, and did not intend to

immunize those who violate these strict requirements.

The Vermont Court fails to grasp PREPA immunity,

and its opinion undermines constitutional liberties

under law.

It applies a federal law to dismiss state law

claims against state actors who —while incentivized

by federal funding— violated both state and federal

Constitutional protections.

This travesty can be repeated, and should be

fixed. The U.S. Health & Human Services (“HHS”)

“emergency” ends December 31, 2024, but PREPA’s

declared activation leaves many cases behind. An

opinion from this Honorable Court would provide a

clarifying effect. Currently, PREPA jurisprudence

(such as the Vermont Court’s opinion), fails to state

essential aspects of its immunity and preemption.

Vacatur of the Vermont Court’s opinion is warranted

here, especially as public health emergencies will

be declared in the future, during which PREPA will

apply. This requires a clear legal framework that

everyone could work within.

PETITION FOR A WRIT OF CERTIORARI

Reasons for Granting the Petition.

I. The Issue Presented Is Recurring, and This

Case Provides An Excellent Vehicle for Resolving It.

Courts have inconsistently applied PREPA

and its consent requirements, and deny justice to

plaintiffs: in Wyoming, to prisoners; in Nevada, sick

hospital patients; in Vermont, North Carolina, Kansas

and Maine, children.5

Injection of a countermeasure

without consent violates PREPA and the EUA, but

courts still get this wrong— or worse, cannot seem

to make it right. See e.g., Storment v. Walgreen, Co.,

2022 WL 2966607 at *3 (D.N.M. July 27, 2022). This

is “unfortunate and certainly deserving of a remedy,

but it cannot be divorced from the administration of

a covered countermeasure-the Covid-19 vaccine....”

There is little doubt that nonconsensual

injection is an increasingly pressing issue, implicating

fundamental rights across the U.S. The harms of an

5 See Bird v. Martinez-Ellis, 2022 U.S. App. LEXIS 35749

(Oct. 26, 2023, 10th Cir.); De Becker v. UHS of Delaware, Inc.

(Sept 19, 2024, No. 85968, 140 Nev. ____ ); Happel v. Guilford

Cty Bd. Of Educ., 900 S.E.2d 666, (N.C. 2024), M.T. v. Walmart

Stores, Inc., 63 Kan. App 2d 401, 528P3d 1067 (Kan App. 2023).

Hogan, et al, v. Lincold Med. Partners, et al, Lin-24-209 (Me. S.

Ct., 2024).

unconstitutional seizure and medical intervention

against parental refusal become more egregious,

sandwiched between the reckless misrepresentation,

failures and mistakes of school officials and the

erroneous dismissal by the state’s highest court.

Courts fail to harmonize PREPA’s immunity

clause (42 U.S.C. §247d-6d(a)(2)(A)) with EUA

informed consent and refusal (21 U.S.C. §360bbb

3(a)(6)(e)(1)(A)(ii)(III)).

This statutory scheme is ignored by courts,

as in this case, and thus, nonconsensual medical

treatments metastasize.

In this case, officials, without verifying his

identity and without parental consent, seized a boy

at school and injected him. The Vermont Supreme

Court has effectively deprived Petitioners of their

legal right to bring this claim before a court under

Vermont’s own state constitution.

In Vermont and in other courts, Parker

immunity is improperly applied as legal precedent.

This cycle of poorly reasoned opinions must be broken,

and the underlying constitutional error, corrected.

Young children do not “shed their constitutional

rights...at the schoolhouse gate” (Tinker v. Des

Moines Indep. Cmty. Sch. Dist. 393 U.S. 503, 506

(1969)).

II. Courts Misapprehend PREPA Immunity

a. PREPA Immunity is Conditional.

PREPA immunizes “covered persons” for

claims of “any type of loss, including (i) death;

(ii) physical, mental, or emotional injury,

illness, disability, or condition; (iii) fear of

physical, mental, or emotional injury, illness,

disability, or condition, including any need for

medical monitoring; and (iv) loss of or damage

to property, including business interruption

loss.”

42 U.S.C. §247d-6d(a)(2)(A)

Immunity "applies to any claim for loss

that has a causal relationship with the

administration to or use by an individual of

a covered countermeasure, including a causal

relationship with the design, development,

clinical testing or investigation, manufacture,

labeling, distribution, formulation, packaging,

marketing, promotion, sale, purchase, donation,

dispensing, prescribing, administration,

licensing, or use of such countermeasure.”

42 U.S.C. § 247d-6d (a)(2)(B) (Emphasis added).

“Congress enacted the PREP Act in 2005

to encourage the expeditious development

and deployment of medical countermeasures

during a public health emergency by allowing

the [HHS Secretary] to limit legal liability

for losses relating to the administration of

medical countermeasures such as diagnostics,

treatments, and vaccines.”

Cannon v. Watermark Retirement

Communities, Inc., 45 F.4th 137, 139 (D.C.

Cir. 2022).

PREPA was triggered in 2020. The HHS

Secretary declared an emergency. 85 Fed. Reg. 7316

(Feb. 7, 2020). EUA products were authorized. 85

Fed.Reg.18250 (Apr. 1, 2020). PREPA gave immunity

to any “covered person” who administered “covered

countermeasures” in compliance with PREPA, the

EUA and all applicable public guidance.

PREPA has an immunity exception: claims

alleging serious injury or death caused by “willful

misconduct.” 42 U.S.C. §247d-6d(d)(1). These go to

U.S. District Court for the District of Columbia. 42

U.S.C. §247d-6d(e)(1). If immunity applies, these

claims may be brought to the Countermeasures

Injury Compensation Program (“CICP”), for some

administrative remedy. 42 U.S.C. §247d-6e(a).

“In each case, whether immunity is applicable

will depend on the particular facts and circumstances.”

See Advisory Opinion, infra at n.6. “[T]o qualify for

PREP Act immunity” under PREPA, a “covered

person must comply with the public-health guidance

issued by an Authority Having Jurisdiction [“AHJ”].”6

Immunity applies where “all requirements” of the

Act and declarations “are met.”7 Shapnik v. Hebrew

Home for the Aged at Riverdale, 535 F.Supp.3d

301 (S.D.N.Y. 2021), notes PREPA immunity is not

absolute, but is conditioned upon compliance:

a “person must act in compliance with public-

health guidance from the applicable Authority

Having Jurisdiction. [One] that fails to follow

applicable guidance does not have PREP Act

immunity.”

Id. (citing Secretary's Declaration, Oct. 23,

2020) (emphasis added).

6 HHS Office of the Secretary, “Advisory Opinion 20-04

on the [PREPA] and the Secretary’s Declaration Under the Act,

October, 2020, as modified on October 23, 2020.”

7 HHS Office of the Secretary, “Advisory Opinion on the

[PREPA] and the March 10, 2020 Declaration Under the Act,

April 17, 2020, as modified on May 19, 2020.”

In Vermont (the “JHA”), Title 18 gives

“applicable guidance.” It provides that a “patient has

the right to refuse treatment to the extent permitted by

law. In the event the patient refuses treatment [then

they] shall be informed of the medical consequences of

that action....”

18 V.S.A. §1852(A)(5) (effective September 1,

2005).

This language is mimicked in the EUA statute.

“...individuals to whom the [countermeasure]

is administered [shall be] informed...of the

option to accept or refuse administration of

the product [and] of the consequences, if any,

of refusing administration of the product...”

(Emphasis added).

21 U.S.C. §360bbb-3(a)(6)(e)(1)(A)(ii)(III).

It is also enshrined in the “Common Rule”

regarding informed consent ethics for experimental

drugs. 45 CFR 46. PREPA “merely creates an ordinary”

defense. Leroy v. Hume, 21-2158-cv (2nd Cir. Apr.

13, 2023). Petitioners may “prevail notwithstanding”

that the Respondents are “covered”, if they failed

to follow public health guidance. Shapnick, 535

F.Supp.3d at 321. Immunity is conditional.

PREPA immunity is conditioned upon

compliance with informed consent under the EUA.

Respondents did not obtain such consent and were

grossly negligent; they injected the wrong boy. They

failed to take precautions, required by state and federal

law, to avoid this mistake. They did not have consent

mandated by the EUA, state law or the Common Rule.

The Vermont Supreme Court, dismissing on immunity

grounds, supports what PREPA clearly prohibits,

while ignoring what it clearly requires.

The Vermont Court is wrong; Respondents are

not immune when they violated their duty to protect

L.P. It is undisputable that Vermont law, PREPA,

the EUA and the Common Rule require informed

parental consent to inject a covered countermeasure

into a young boy. This is “public health guidance”

with which Respondents did not comply. They were

“responsible for” taking reasonable precautions “to

facilitate” safe emergency use of the countermeasure.

See Advisory Opinion at n.6. Respondents failed to

do this and therefore, they have no immunity under

PREPA.

In Kehler v. Hood, 2012. WL 1945952 (E.D.

Mo.) 4:11CV1416 (2012), the court dismissed claims

against a manufacturer (immune under PREPA) and

remanded all remaining state law claims (against

a doctor and hospital who administered a covered

countermeasure) back to state court to determine

if immunity was warranted for conduct before the

administration of the countermeasure (i.e., the failure

to obtain the required prior informed consent).

This is the right approach. Kehler demonstrates

that PREPA immunity is conditioned on compliance,

and creates a question of fact if this defense is raised.

Under Kehler, Respondents’ abrogation of Petitioners’

right to informed consent regarding administration

of an EUA “covered countermeasure” precludes

immunity under PREPA. Many cases demonstrate

that immunity is not absolute, but dependent upon

facts and circumstances.

In Barron v. Benchmark Senior Living, LLC,

22-cv-318-SE (D.N.H. Feb. 6, 2023), immunity was

in question, where the complaint alleged a failure to

follow medical protocols (citing Coleman v. Intensive

Specialty Hosp. LLC, No. CV 21-0370, (W.D. La. Dec.

19, 2022)).

In Hatcher v. HCP Prairie Vill. KS OPCO

LLC, 515 F.Supp.3d 1152, 1160 (D. Kan. 2021) (D.C.

Cir. Sept. 28, 2021), immunity was at issue because

the complaint had alleged, inter alia, “that safety

protocols were not carried out”, i.e., there was a lack

of compliance with guidance.

In Nowacki v. Gilead Sciences, et al., 2:23-cv-

10276 (E.D. Mich., 2023), immunity did not extend

to producers whose countermeasure and procedures

(glass particles in the vaccine) did not comply with

FDA requirements (much like the EUA’s informed

consent and right of refusal found in 21 U.S.C.

§360bbb-3(a)(6)(e)(1)(A)(ii)(III)).

The option to accept or refuse administration

is the sine qua non of immunity under PREPA. This

option was denied by Respondents, and thus, they are

not immune.

Fraud will also deny PREPA immunity.

In Coleman v. Sharp Memorial Hosp., No.

37-2023-00033307-CU-PO-CTL, 2024 Cal. Super.

LEXIS 10893 (Cal. Sup. Ct. March 29, 2024), claims

were not based on a countermeasure, but “rather on

the...concealment of facts;” i.e., fraudulent use of

hospital procedures, which the court reasonably found

to be outside the scope of PREPA immunity. Id. at *4.

PREPA immunity is conditioned upon

compliance with public health guidance, traditional

informed consent and other acknowledged

constitutional liberties of bodily integrity. This case

involves a medical battery, unlawful seizure, and

injection of a child by state actors against his protests.

Reckless misrepresentation by the vice principal

regarding safety or gross negligence by officials is

beyond the scope of PREPA immunity, as these do

not involve an administration of the countermeasure,

because none was contemplated or constitutionally

authorized at any time.

Respondents’ noncompliance with guidance

and the EUA is inconsistent with the Vermont Court’s

ruling that Respondents are immune from suit. The

implications of this holding are noxious, and this

Court should reverse this erroneous ruling and provide

accurate jurisprudence.

III. Courts Misapprehend PREPA Preemption.

a. Only Willful Misconduct Resulting in

Death or Serious Bodily Injury is Federally Preempted.

This Court let stand a decision of the U.S. Court

of Appeals for the Ninth Circuit, which found that

PREPA’s scheme is insufficient to completely preempt

all state law claims. See Saldana v. Glenhaven

Healthcare, LLC, 27F.4 679 (9th Cir. 2022) cert.

denied, 598 U.S. ___, 143 S.Ct 444 (Nov. 21, 2022).

In the Second Circuit, Solomon v. Saint Joseph’s

Hospital HCS of Long Island, Inc. (21-CV-2729,

affirmed March 7, 2023 (2nd Cir. 2023)) holds that

“state-law claims are not completely preempted.” It

is settled: PREPA preemption is not complete. This

“is in line with every other Court of Appeals that has

addressed the issue.” Id.

State courts should hear

claims as are raised in this case, particularly those

on constitutional grounds.

Federal courts recognize that “nothing in the

PREP Act suggests that Congress was attempting

to eliminate state-law causes of action for non-

immunized claims.” Solomon at 62 F.4th 61. Parker

erroneously holds that all state law claims are

completely preempted. This has led to unjust,

unconstitutional results, as witnessed in this case.

8 Maglioli v. Alliance HC Holdings LLC, 16 F.4th 393

(3rd Cir. 2021); Mitchell v. Advanced HCS, L.L.C., 28 F.4th 580

(5th Cir. 2022); Hudak v. Elmcroft, 58 F.4th 845 (6th Cir. 2023);

Martin v. Petersen Health Ops., LLC, 37 F.4th 1210 (7th Cir.

2022); Cagle v. NHC HealthCare, LLC, 22-2757 (8th Cir, 2023);

Est. of Schleider v. GVDB Ops, LLC, No. 21-11765 (11th Cir.,

October 31, 2024).

It is settled that “the only exclusive federal

cause of action established” under PREPA is “willful

misconduct” found in 42 U.S.C. §247d-6d(c). Id.

Vermont recognizes the “presumption that the

power of the state has not been superseded by a

federal act, and that a “party seeking to overcome

this presumption bears a heavy burden." In re

Investigation Into Regulation Of Voice Over Internet

Protocol Services., 2013 VT 23 at ¶14, 193 Vt. 439

(2013).

Yet, the Vermont Court ignores that

presumption to opine that when PREPA “immunizes

a defendant, [it] bars all state-law claims against

that defendant....” Politella, 2024 VT 43, 2024 WL

3546717, pg. 6. This misstates the law; PREPA

immunity (where applicable and based upon

compliance) only preempts claims within the ambit

of the Act for product liability and related claims,

not traditional torts uncontemplated by PREPA’s

purpose or its express language. PREPA preempts

only one cause of action and state courts should

have this basic principle set down for all to see and

understand in very clear terms. Until then, unjust

results, as seen in this case, will proliferate.

b. States Are Preempted From Regulating

Countermeasures, Not From Hearing State Law

Claims.

PREPA’s preemption provision states that

during the effective period of a declared public health

emergency:

“[N]o State...may establish, enforce, or

continue in effect with respect to a covered

countermeasure any provision of law or legal

requirement that—

(A) is different from, or is in conflict with, any

requirement applicable under this section;

and

(B) relates to the design, development,

clinical testing or investigation, formulation,

manufacture, distribution, sale, donation,

purchase, marketing, promotion, packaging,

labeling, licensing, use, any other aspect

of safety or efficacy, or the prescribing,

dispensing, or administration by qualified

persons of the covered countermeasure, or

to any matter included in a requirement

applicable to the covered countermeasure

under this section or any other provision of

this chapter ....”

42 U.S.C. § 247d-6d(b)(8)(A) & (B).

Given this Court’s plurality opinions

regarding the federal preemption issue, this much is

clear: Petitioners’ state law claims are not expressly

preempted by the Act.

Courts recognize that PREPA does not

preempt claims, but preempts state requirements

for the design, development, etc., of “covered

countermeasures.” PREPA preempts state

implementation of “different standards regarding”

their “administration or use.” Turner v. The Bristol

At Tampa Rehab. & Nursing Ctr., 8:21-cv-0719-

KKM-CPT (M.D. Fla. Sep 20, 2021). PREPA “only

addresses” a state’s “ability to ‘establish, enforce,

or continue in effect’” any “requirement concerning

covered countermeasures.” Id. This language is

not novel; many statutes incorporate substantially

similar phrasing. The language “does not address

private causes of action arising under state law." Id.

(Emphasis added).

The U.S. Department of Justice parsed this

language:

“We conclude that the Act expressly preempts

state and local requirements to the extent

that they would effectively prohibit qualifying

pharmacists from ordering and administering

Covid-19 tests and vaccines authorized by the

Secretary’s declaration.”9

“...we think it evident under the statute that

the Secretary had the authority to act quickly

to expand the number of covered persons who

may administer necessary countermeasures

to deal with that crisis, and Congress specified

that state or local health officials lack authority

to take measures that would conflict with such

an action.” Id. (emphasis added.)

It is useful to note that the actions of “state or

local health officials” are barred; not claims, courts

or plaintiffs. Petitioners’ state law claims are not

expressly preempted.

The Parker Court was mistaken when it held

“that Congress intended to preempt all state law

tort claims... including one based upon a defendant’s

failure to obtain consent.” Parker at 954 N.Y.S. 2d 262.

Parker is poorly reasoned, yet endures since 2012. This

flawed precedent ‘snowballs’ into other venues, like the

Vermont Supreme Court, to deprive plaintiffs of their

9 Mascott, J., U.S. Deputy Asst. Attorney “General

Preemption of State and Local Requirements Under a PREP

Act Declaration; Memorandum Opinion For the (HHS) General

Counsel”, January 19, 2021.

legal remedies. This Court could provide certainty

regarding the limited scope of PREPA’s preemption

and conditional immunity scheme, to prevent further

injustices, as are witnessed in this case.

This Honorable Court should vacate the

Vermont Court’s decision, as it construes PREPA

beyond Congress’ intent and nullifies state law

protecting informed medical consent, fundamental

liberties, parental rights and bodily autonomy. This

Court should reverse and remand to the Vermont

Court with instructions to apply PREPA, so that proper

constitutional limits and state sovereignty apply.

IV. Petitioners’ Claims Do Not “Relate To” The

Administration Of A Covered Countermeasure.

PREPA immunity revolves around “claims for

loss relating to' administration of a countermeasure,

and this Court “singled out” the phrase “relate to”

as particularly sensitive to context.'” Hampton v.

State of California, 83 F.4th 754, 764 (9th Cir. 2023)

(citing Dubin v. U.S., 599 U.S. 110, 143 S. Ct. 1557,

1565 (2023). “That the phrase refers to a relationship

or nexus of some kind is clear.... [y]et the kind of

relationship required, its nature and strength, will

be informed by [its] context." Id. (citing N.Y.S.

Conference of Blue Cross & Blue Shield Plans v.

Travelers Ins. Co., 514 U.S. 645, 655 (1995)).

“It is not enough that some countermeasure's

use could be described as relating to the events

underpinning the claim in some broad sense." Hampton

at 83 F.4th 764.

Respondents are not entitled to PREPA

immunity, which requires “causal relationship” to a

countermeasure. See, e.g., Manyweather v. Woodlawn

Manor, Inc., 40 F.4th 237, 245–46 (5th Cir. 2022);

Estate of Schleider v. GVDB Operations, LLC, No.

21-11765 (October 31, 2024, 11th Cir. 2024). Pirotte

v. HCP Prairie Vill. KS OPCO LLC, 580 F. Supp. 3d

1012, 1023–24 (D. Kan. 2022).

When considered in context “‘relating to’ takes

on a more targeted meaning.” Hampton, supra at 83

F.4th 764 (citing McDonnell v. U.S., 579 U.S. 550, 568-

69, 136 S.Ct. 2355 (2016)) "A word is known by the

company it keeps." (Id. citing Jarecki v. G.D. Searle

& Co., 367 U.S. 303, 307, 81 S.Ct. 1579 (1961))). The

phrases "caused by," "arising out of," and "resulting

from — all connote some type of causal relationship.”

Id. A direct connection is required.

Petitioners do not allege loss from

“administration” of a countermeasure, but rather sue

as parents seeking to hold state actors liable within the

“context” of their enumerated failures, ((a) through (k)

in their Amended Complaint) to protect L.P. on school

premises, and for unlawfully seizing him. Cf. "Est. of

Maglioli v. Andover Subacute Rehab. Ctr., 478 F.Supp.

3d. 518, 529 (D.N.J. 2020), aff’d sub nom. Maglioli v.

All. HC Holdings LLC, 16 F.4th 393 (3rd Cir. 2021)

(failure to exercise due care not preempted where a

countermeasure injury is not alleged); Cf. Coleman

v. Intensive Specialty Hosp., LLC, No. 21-0370, 2022

WL17779323, at *5 (W.D. La., Dec. 19, 2022) (breach of

care not covered where injury or death is not alleged).

PREPA immunity does not apply to

constitutional violations such as Petitioners have

raised under Article 11. Respondents’ “general lack of

action is not a covered countermeasure under” PREPA.

Heights of Summerlin, LLC v. Eighth Judicial Dist.

Court of the State, 140 Nev. Adv. Op. 65, 86214 (Nev.

Oct. 3, 2024). Petitioners allege “lack of an adequate

Covid-19 policy, rather than a drug or device” led to the

harm. Id. A “Covid-19 response policy is not a covered

countermeasure. To put it simply, a program or policy

is not a product, drug, or device.” Crupi v. Heights of

Summerlin, LLC, 2:21-cv-00954-GMN-DJA, 12 (D.

Nv. Feb. 17, 2022). Respondents’ abject failure to meet

public health standards and protocols while running

their school vaccination clinic is not “a product, drug

or device.” Id.

Circumstances in this case involve a marked

“lack of an adequate” implementation, regarding

consent and identifying those who have affirmatively

provided it. Id.

Respondents’ “general lack of action”, regarding

the clear duty to safeguard L.P at school, especially

after Mr. Politella spoke with Vice Principal Sessions

about risks, is not a “countermeasure.” The facts

in this case do not show any causal relationship

between the countermeasure and a deprivation of

liberty by seizure. Nor was Mr. Sessions’ reckless

misrepresentation caused by a countermeasure. The

losses here are intangible (except tuition), yet real; but

do not ‘relate to’ administration of a countermeasure.

PREPA contemplates tort, commercial and

property losses, and injury or death, which are not

the intangible, dignitary harm of unlawful seizure,

battery, or emotional distress. The losses here are

not within PREPA’s “relating to” language, as there

is no harm alleged from the shot. The harm ‘relates

to’ reckless misrepresentations, grossly negligent

conduct before the shot was administered, and process

failures resulting in L.P.’s lost liberty and dignity.

Regarding misrepresentation: if PREPA

immunized deceptive “inducement and sanctioned

illusory promises, then no one would agree to

[participate in such] high risk activities....” Dressen

v. Astrazeneca, AB, et al, 2:24-cv-00337-RJS (D. Utah,

Nov. 4, 2024). If fraud is immune, it would invite

“rank abuse among covered entities to make illusory

promises to unwitting” parents and citizens. Id.

The laissez-faire regime that “covered entities”

have enjoyed during the public health emergency “due

to their widespread tort immunity” is “undermined if

the express promises they make along the way were

not enforceable.” Id. Here, Mr. Sessions promised

that L.P. would be safe, and PREPA should not allow

Respondents “to shirk this and any other promise

made...merely because” an illusory promise of safe

premises “ultimately relates to the administration or

use of a” covered countermeasure. Id.

V. Most Respondents Are Not ‘Covered

Persons’

“Close reading” of the statute reveals that

most Respondents are not “covered.” Goins v. Saint

Elizabeth Med. Ctr. 640 F.Supp.3d 745, 756 (E.D. Ky.)

(2022) (aff’d, 6th Cir. Jan 22, 2024). Vice Principal

Sessions was not one who "prescribed, administered,

or dispensed” the shot. Id. (citing 42 U.S.C.

§247d-6d(i)(2)(B)(iv). Use of the phrase "prescribed,

administered, or dispensed,” in the simple past tense,

refers to an action completed at a definite time—

when the [injection] was prescribed, administered,

or dispensed.” Id. (citing Farrell, R.Why Grammar

Matters: Conjugating Verbs in Modern Legal

Opinions, 40 Loy.U. Chi. L.J. 1, 19 (2008)).

When the injection was administered is

important; a “covered person” is not “covered”, ex

post facto. Named Respondents are not “covered”,

as they did not administer any shots, and all their

misconduct preceded it. When Vice Principal

Sessions misrepresented premises safety, he had not

"prescribed, administered, or dispensed” any covered

countermeasure, nor had any Respondent. Only “Does

# 1 through 5”, who took L.P. from class and injected

him, had “prescribed, administered, or dispensed” it.

As Petitioners argued, the Does are likely the only

ones to be “covered.”

PREPA “does not insulate all covered persons

from suit merely because they administered”

countermeasures. Vaughan v. Genesis HealthCare,

Inc., C.A. S22C-07-005 MHC (Del. Sup Ct. Feb 06,

2024). PREPA does not provide “blanket immunity to...

a facility...merely on account of that entity's having...

administered...countermeasures...” Id. Immunity is

conditional and situational, not absolute.

Petitioners may “prevail notwithstanding”

that the Respondents are “covered”, if they failed

to follow public guidance. Shapnick, 535 F.Supp.3d

at 321. Immunity is conditional, based on facts and

circumstances. PREPA “merely creates” a defense to

be raised in a suit. Leroy v. Hume, 21-2158-cv (2nd

Cir. Apr. 13, 2023). The facts will determine whether

it applies, based upon compliance.

The court determines whether claims fall

within the “immunity provision.” Conyers v. Isabella

Geriatric Ctr., 2024 NY Slip Op 33661(unpublished),

No. 153668/ 2022, (N.Y. Sup. Ct. Oct. 15, 2024) In this

case, the “claims pertain only to...failures to act, and

such allegations do not amount to the administration

of countermeasures.” Id. (citing Dupervil v Alliance

Health Operations, LLC, 516 F.Supp.3d 238, 255 [ED

NY 2021]). Thus, the entity “is not entitled to [PREPA]

immunity.” Id. In this case, many Respondents failed

to act; very few “administered” a shot.

VI. The Vermont Supreme Court’s Ruling

Has Deprived Petitioners Of Rights Recognized By

This Court.

a. Regarding The Fourth Amendment

The Fourth Amendment to the U.S.

Constitution provides the right to be secure...against

unreasonable... seizures...” Vernonia School Dist.

v. Acton, 515 U.S. 646, 115 S.Ct 2386 (1995). This

extends to seizures “by state officers” Id. citing Elkins

v. U.S, 364 U.S. 206, 213, 80 S. Ct. 1437 (1960). This

includes “public school officials.” Id. (citing New

Jersey v. T. L. O.), 469 U.S. 325, 336, 105 S. Ct. 733

(1985).

Whether a seizure is reasonable "'is judged

by balancing its intrusion on [the seized person’s]

Fourth Amendment interests against its promotion

of legitimate governmental interests.'" Id. (citing

Delaware v. Prouse, 440 U.S. 648, 654, 99 S. Ct.

1391 (1979)).

It is undeniable that what happened to L.P.

in this case constituted his unreasonable seizure

by state actors without “legitimate governmental

interest.” He is subject to the control of his parents,

who affirmatively told school officials that he was

not to be injected at the school clinic.

“Historically, damages have been regarded

as the ordinary remedy for an invasion of personal

interests in liberty.” Bivens v. Six Unknown Agents

of Federal Bureau of Narcotics, 403 U.S. 388, 396,

91 S.Ct. 1999 (1971)(citing Nixon v. Condon, 286

U.S. 73, 52 S.Ct. 484 (1932)). It is “well settled that

where legal rights have been invaded, and a federal

statute provides for a general right to sue for such

invasion...courts may use any available remedy to

make good the wrong done.” Id. (citing Bell v. Hood,

327 U.S., at 684, 66 S.Ct., at 777).

State officials, in a public health crisis with

a duty “to guard and protect” the “safety and the

health of the people,” are permitted to take actions

deemed necessary. Jacobson v. Massachusetts, 197

U.S. 11, 28 (1905).

But, what happened in this case had no “real

or substantial relation” to an emergency, and clearly

was “beyond all question, a plain, palpable invasion

of rights secured by the fundamental law”, i.e., the

Fourth Amendment. Id.

Petitioners raised a claim under Article 11 of

the Vermont Constitution for seizure, analogous to a

Fourth Amendment breach. The Vermont Court held

Respondents immune. Petitioners ask this Court to

decide if Congress intended PREPA to nullify state

constitutional rights and use “any available remedy

to make good the wrong done.” Id.

b. Regarding The Tenth Amendment

The Tenth Amendment reserves to the States

or the People, “powers not delegated” to the U.S.

government “by the Constitution, nor prohibited

by it to the States.” The Vermont Court flouts this

arrangement by shielding state actors’ misconduct

under federal law, which could not be Congress'

intent, nor the intent of the Tenth Amendment.

Respondents deprived petitioners of

their Vermont Article 11 (and also their Fourth

Amendment) right to be free from unlawful seizure,

and this Honorable Court can recognize the

dysfunction manifested where state entities, using

federal dollars, violate their own state constitution,

statute and common law in furtherance of federal

schemes in public schools. This Court may review a

state Supreme Court opinion which blatantly ignores

Tenth Amendment principles of balanced power,

fundamental to our republic.

Governance by dual sovereigns safeguards

against tyranny. The Vermont Supreme Court, under

PREPA, finds a “covered countermeasure exception”

to the rights and liberties protected by the U.S.

Constitution. It is not an opinion that should remain

as binding legal authority.

The Vermont Court’s dismissal on federal

immunity grounds runs contrary to the Tenth

Amendment. Under the Vermont Court’s reasoning,

state-run entities cannot be found liable in state court

under the state constitution, statute or common law,

because PREPA states otherwise.

Such an “expansive interpretation” of PREPA

immunity, where “hardly [any type of misconduct]

fall[s] outside the federal statute’s domain,” promotes

unacceptable levels of raw federal power. Jones v.

U.S., 529 U.S. 848, 857 (2000).

c. Regarding Petitioners’ Parental Rights

Petitioners have an interest in L.P.’s “care,

custody and control.” Troxel v. Granville, 530 U.S.

57, 65, 120 S.Ct. 2060 (2000). It is “the oldest...

fundamental liberty interest[] recognized by this

Court.” Id. It includes a right to direct “upbringing

and education.” Id. (citing Meyer v. Nebraska, 262

U.S. 399, 43 S.Ct. 625 (1923) and Pierce v. Society of

Sisters, 268 U.S. 534, 45 S. Ct. 571 (1925)).

American society has “a strong tradition of

parental concern for the nurture and upbringing of

their children.” Id. (citing Wisconsin v. Yoder, 406

U.S. 205, 232, 92 S. Ct. 1526 (1972). It recognizes

“broad parental authority over minor children.”

Id. (citing Parham v. J.R, 442 U.S. 584, 602, 99

S. Ct. 2493 (1979)). Beyond the “specific freedoms

protected by the Bill of Rights, the 'liberty' [most]

specially protected...includes the right []to direct

the education and upbringing of one's children.” Id.

(citing Washington v. Glucksberg, 521 U.S. 702, 720,

117 S. Ct. 2258 (1997).

As parents, Mr. and Mrs. Politella had

the right to decide whether L.P. would receive an

injection. There is no disputing their decision that

L.P. should not receive it. However, their right to

make this decision was denied.

There is no disputing that L.P. has received

elective medical treatment at school, without

parental consent. In fact, this happened against

their express prohibition. And, it might have been

a mistake, but Respondents’ egregious misconduct

could not serve any legitimate state interests.

The Vermont Court allows Respondents to

deny the “oldest of the fundamental liberty interests

recognized by this Court.” Troxel. L.P.’s injection

over objection stripped Petitioners of one of the “basic

rights of man”... far more precious than property

rights.” Yoder, at 406 U.S. 232.

Petitioners as parents, and their minor child

L.P. as an individual, have the constitutionally-

protected liberty to be free from unauthorized

medical treatments by the State. The smallpox

outbreak addressed by Jacobson was very different

from illegal experiments on Americans at Tuskegee.

Judicial approbation of the Vermont Supreme

Court’s determination in this case permits gross

violation of constitutional liberties on both parents

and child, and is a vast departure from decades of

accepted medical ethics.

As Judge Collins noted in his concurring

opinion in Health Freedom Defense Fund, Inc. v.

Carvalho (No. 22-55908 9th Cir. 2024):

...a distinct and more recent line of Supreme

Court authority, in which the Court has

stated that “[t]he principle that a competent

person has a constitutionally protected

liberty interest in refusing unwanted medical

treatment may be inferred from [the Court’s]

prior decisions.”

Id. (citing Cruzan ex rel. Cruzan v. Director,

Mo. Dep’t of Health, 497 U.S. 261, 278–79

(1990) (“not only Jacobson, but a series of

later “cases support the recognition of a

general liberty interest in refusing medical

treatment”).

...the Court explained that Cruzan’s posited

“‘right of a competent individual to refuse

medical treatment’” was “entirely consistent

with this Nation’s history and constitutional

traditions,” in light of “the common-law rule

that forced medication was a battery, and the

long legal tradition protecting the decision to

refuse unwanted medical treatment.”

Id. (citing Glucksberg supra, at 521 U.S. 724 (1997).

Congress did not express any intention to

eliminate such fundamental liberties in PREPA,

nor are these rights implicated if the Vermont

Supreme Court’s opinion herein is duly determined

to be an erroneous extension of PREPA immunity.

The Vermont Court’s decision— by immunizing

Respondents for gross misconduct— construes

PREPA in derogation of some of the most basic

protected liberties in our American society. This

Honorable Court should not let infringement of

liberties stand as law. The Vermont Court departs

severely from this Court’s jurisprudence, and its

decision has the potential to encourage further

incidents of medical treatment of children without

parental consent.

A moral hazard arises where lower court

opinions expanding immunity beyond Congressional

intent stand as precedent. This Honorable Court

should reverse the Vermont Supreme Court’s decision

and remand it with instructions on PREPA’s scope

of conditional immunity.

VII. Conclusion.

As the issues are important, and the Vermont

Court construes PREPA in opposition to its own

constitutional provisions, this Honorable Court’s

opinion is requested.

WHEREFORE, for all the foregoing reasons,

this Court should grant this petition for a writ of

certiorari.

Respectfully submitted,

John Klar, Esqr.

Counsel of Record for Petitioners

November 19, 2024

No. _______________

In The

SUPREME COURT OF THE UNITED STATES

DARIO and SHUJEN POLITELLA and

Their Minor Child, L.P.,

Petitioners,

WINDHAM SOUTHEAST SCHOOL DISTRICT and

THE STATE OF VERMONT, et al,

Respondents.

CERTIFICATE OF WORD COUNT

Pursuant to this Court’s Rules, I certify that this

Petition, drafted using Century 12-point typeface, has

a total of 6638 words, including footnotes, excluding

sections exempted by Rule 33.1(d) This Certificate was

prepared in reliance upon the word-count function

of MS-Word 2021, which was used to prepare the

document. I declare under penalty of perjury that the

foregoing is true and correct.

John Klar, Esqr.

Counsel for Petitioners

APPENDIX A

VERMONT SUPREME COURT

JULY 26 2024 2024 VT 43

ENTRY ORDER FILED IN CLERK'S OFFICE

SUPREME COURT DOCKET NO. 23-AP-237

MAY TERM, 2024

Dario Politella and Shujen Politella v.

Windham Southeast School District et al.

CASE NO. 22-CV-01707

APPEALED FROM:

Superior Court, Windham Unit, Civil Division

In the above-entitied cause, the Clerk will enter:

Affirmed.

FOR THE COURT:

Karen R. Carroll, Associate Justice

Concurring:

Paul L Reiber, Chief Justice

Harold E. Eator/ Jr., Associate Justice

William D. Cohen, Associate Justice

Nancy Waples, Associate Justice

NOTICE: This opinion is subject to motions

for reargument under V.R.A.P. 40 as well as formal

revision before publication in the Vermont Reports.

Readers are requested to notify the Reporter of

Decisions by email at: JUD.Reporter@vtcourts.gov or

by mail at: Vermont Supreme Court, 109 State Street,

Montpelier, Vermont 05609-0801, of any errors in

order that corrections may be made before this opinion

goes to press.

VERMONT SUPREME COURT

FILED IN CLERK'S OFFICE

2024 VT 43 JULY 26 2024

No. 23-AP-237

Dario Politella and Shujen Politella v.

Windham Southeast School District et al.

May Term, 2024

Supreme Court On Appeal from

Superior Court, Windham Unit, Civil Division

Hon. Michael R. Kainen, Judge

Ronald A. Ferrara and Matthew W. Goins,

Law Clerk (On the Brief) of Fitts, Olson, Giddings &

Ferrara, PLC, Brattleboro, for Plaintiffs-Appellants.

Kristin C. Wright of Lynn, Lynn, Blackman &

Manitsky, P.C., Burlington, for Defendant

for Defendant-Appellee School District

Charity R. Clark, Attorney General, and David

McLean, Assistant Attorney General, Montpelier,

for Defendant-Appellee State of Vermont.

PRESENT: Reiber, C.J, Eaton, Carroll, Cohen

and Waples, JJ.

¶ 1 CARROLL, J. Plaintiffs Dario and Shujen

Politella appeal an order dismissing their amended

complaint for lack of subject-matter jurisdiction.

Plaintiffs’ son, L.P., was mistakenly given a single

dose of the Pfizer BioNTech COVID-19 vaccine at

a state-sponsored vaccine clinic at L.P’s school.

Plaintiffs sued various named and unnamed state and

school defendants. We conclude that defendants are

immune from suit under the Federal Public Readiness

and Emergency Preparedness Act (PREP Act). We

therefore affirm.

I. Background

¶2. Plaintiffs’ complaint alleged the following.

Plaintiffs lived in Brattleboro with their son,

L.P., who was six years old in 2021. L.P. attended

Academy School in the Windham Southeast School

District. The Vermont Department of Health and the

school district entered into an agreement to host a

COVID-19 vaccination clinic at Academy School in

November 2021. Students needed parental consent

to be vaccinated. Plaintiffs did not consent to have

L.P. vaccinated.

¶ 3. A few days before the clinic, L.P.’s father

dropped off L.P. at school and spoke with Academy

School's assistant principal. Father reiterated to the

assistant principal that plaintiffs did not consent to

have L.P. vaccinated. The assistant principal said

that he understood and stated that L.P. could not be

vaccinated without plaintiffs’ consent. In the same

interaction, the assistant principal said that the

school had not received as many vaccine registrations

as he would have liked.

¶ 4. Despite the above, L.P. was vaccinated on

the day of the clinic. An unidentified worker removed

L.P. from class and applied a handwritten label to

L.P.’s shirt that read, “L.K.” and displayed “L.K’s”

date of birth. L.K. was a five-year-old student at

Academy School who was not in L.P.’s class. L.K. had

already been vaccinated the same day. L.P. “verbally

protested,” saying, “Dad said no.” Nonetheless,

clinic workers gave L.P. a stuffed animal to distract

him, told L.P. that he was “a brave little boy,” and

administered one dose of the Pfizer BioNTech

COVID-19 vaccine1

A clinic worker filed out a vaccine

card with “L.K.’s” name, the date of administration,

the vaccine lot number, and the type of vaccine dose

and put the card in L.P.’s backpack. At some point,

the clinic workers and school officials realized the

mistake. School officials called plaintiffs to apologize.

Plaintiffs removed L.P. from Academy School soon

afterward. Plaintiffs did not allege that L.P. suffered

harm as result of receiving the vaccine.

1 Plaintiffs do not name the vaccine in the original

or amended complaints. Plaintiffs reference certain reports

regarding the safety of the Pfizer vaccine in their motion papers.

In their main appeal brief, plaintiffs appear to concede that the

countermeasure involved was the Pfizer vaccine.

¶5. Based on these and other allegations,

plaintiffs filed an eight-count complaint in the

civil division. Each count was based in state

law.2

Plaintiffs named as defendants the State of

Vermont and the school district, the school district

superintendent, the principal and assistant principal,

a teacher, the school nurse, Vermont’s Deputy Health

Commissioner, L.P.’s pediatrician, and five unnamed

state employees or volunteers. Plaintiffs described

each individual defendant as either employed by the

school, the school district, the State of Vermont, or as

“de facto agents of the State.” Prior to answering the

complaint, the State defendants moved to dismiss for

lack of subject-matter jurisdiction and for failure to

state a claim. The school defendants filed an answer

and moved for judgment on the pleadings. Both

groups of defendants argued that they were immune

from state-law claims under the PREP Act, 42

U.S.C. §247d-6d (providing liability immunity), and

2 Plaintiffs pleaded the following causes of action: a vio-

lation of Vermont's Healthcare Bill of Rights, 18 V.S.A. §1852,

gross negligence, negligent undertaking, premises liability, bat-

tery of minor, consumer fraud, common-law fraud, and inten-

tional infliction of emotional distress.

therefore all claims were preempted. Plaintiffs

opposed on the basis that defendants were not

immune under the PREP Act and it did not preempt

their claims.

¶6. The court concluded that the PREP Act

provided immunity for State and school defendants

involved in administering the vaccine to L.P., and

that case law from other jurisdictions supported that

conclusion. Deciding that defendants' affirmative

defense of federal preemption warranted dismissal,

it granted the motions to dismiss and for judgment on

the pleadings, and granted plaintiffs leave to amend.

¶7. Plaintiffs filed an amended complaint

containing a new count styled, “Private Right of

Action-Constitutional.” This count alleged a violation

of Article 11 of the Vermont Constitution. The trial

court concluded that because this claim was also

based in state law, it too was preempted by the PREP

Act. The court otherwise found that the amended

complaint relied on the same allegations plaintiffs

originally pleaded; in effect, that LP. was wrongfully

administered a COVID-19 vaccine.

Concluding that it had no jurisdiction over

preempted claims, the court again dismissed the

amended complaint for lack of subject-matter

jurisdiction and granted the motion for judgment on

the pleadings. Plaintiffs appealed.

¶8. Plaintiffs essentially present two issues

for our review: (1 ) defendants' alleged conduct does

not fall under the PREP Act immunity provision, and

(2) the PREP Act does not preempt plaintiffs' claims.

They cite cases from other jurisdictions in support

of their arguments. Plaintiffs contend that the court

erred in dismissing the case for lack of subject-matter

jurisdiction. They ask us to reverse and remand for

additional proceedings.

¶9. We conclude that the PREP Act immunizes

every defendant in this case and this fact alone is

enough to dismiss the case. Plaintiffs'’ arguments

about preemption are misplaced, and therefore we

need not decide today the extent of the PREP Act's

preemptive effect. We conclude that when the federal

PREP Act immunizes a defendant, the PREP Act

bars all state-law claims against that defendant as a

matter of law.

We therefore affirm the dismissal because

plaintiffs have failed to state a claim upon which

relief can be granted and not for lack of subject-

matter jurisdiction. See State v. VanBuren, 2018

VT 95, 170, 210 Vt. 293, 214 A.3d 791 (explaining

that this Court can affirm trial court's decision on

any basis). For the same reason, we also affirm the

court's grant of judgment on the pleadings in favor of

the school defendants.

II. Discussion

A. Standard of Review

¶10. We review anew a trial court’s decision

on motions to dismiss failure to state a claim and

for judgment on the pleadings. Negots. Comm. of

Caledonia Cent. Supervisory Union v. Caledonia

Cent. Educ. Ass’n, 2018 VT 18, ¶¶8, 12, 206 Vt. 636,

184 A.3d 236. We will affirm a dismissal order only

when there are “no facts or circumstances” entitling

the nonmoving party to relief. Davey v. Baker,

2021 VT 94, q2, 216 Vt. 53, 274 A.3d 8:7 (quotation

omitted).

To this end, we "take all uncontroverted factual

allegations of the complaint as true and construe

them in the light most favorable to the nonmoving

party." Caledonia Cent. Educ. Ass’n, 2018 VT 18, ¶10

(quotation and alteration omitted). Similarly, we will

affirm a judgment on the pleadings when the movant

is entitled to judgment as a matter of law on the

pleadings alone. Id. We accept as true all well-pleaded

factual allegations contained in the nonmoving party’s

pleadings, including any reasonable inferences to be

drawn from them, and accept as false all contrary

allegations in the movant’s pleadings. Huntington

Ingalls Indus.. Inc. v. Ace Am. Ins. Co., 2022 VT 45,

4 17, 217 Vt. 195, 287 A.3d 515. “The only difference

between" a motion to dismiss for failure to state a

claim and judgment on the pleadings “is the timing

of the motion to dismiss.” Hunter v. Ohio Veterans

Home, 272 F. Supp. 2d 692, 694 (N.D. Ohio 2003).

B. The PREP Act

¶11. Congress passed the PREP Act in 2005.

The Act authorizes the Secretary of Health and

Human Services to issue a declaration when the

Secretary makes a “determination that a disease or

other health condition or threat to health constitutes

a public health emergency.” 42 U.S.C. §247d-6d(b)(1).

In the declaration, the Secretary “may specify

[the manufacture, testing, development, distribution,

administration, or use” of a “covered countermeasure.”

Id. A vaccine is a covered countermeasure. Id.

§247d-6d(i)(1)(C).

¶12. During a public-health emergency,

certain “covered persons” are immune from all claims

causally related to the administration of a covered

countermeasure, Id. §247d-6d(a)(2). The immunity

in §247d-6d(a)(1) “applies to any claim for loss that

has a causai relationship with the administration to

or use by an individual of a covered countermeasure,

including a causal relationship with . . . dispensing,

prescribing, administration, licensing, or use of

such countermeasure.” Id. §247d-6d(a)(2)(B). “The

Secretary controls the scope of immunity through the

declaration and amendments, within the confines of

the PREP Act. “Saldana v. Glenhaven Healthcare

LLC, 27 F.4th 679, 687 (9th Cir. 2022) (quotation

omitted).

¶13. The “sole exception” to the PREP Act’s

grant of immunity is a federal cause of action against

a covered person whose “willful misconduct” causes

“death or serious physical injury.” Id. §247d-6d(d)

(1). An action of this type may only be filed in the

U.S. District Court for the District of Columbia. Id.

§247d-6d(e)(1).

¶14. In March 2020, the Secretary issued a

declaration addressing the COVID-19 pandemic.

See Declaration Under the Public Readiness

and Emergency Preparedness Act for Medical

Countermeasures Against COVID-19, 85 Fed. Reg.

1,598-01 (Mar. 17, 2020) [hereinafter March 2020

COVID-19 Declaration. Among other provisions, the

Secretary declared that covered countermeasures

included “any antiviral, and other drug, any biologic,

any diagnostics, any other device, or any vaccine,

used to treat, diagnose, cure, prevent, or mitigate

COVID-19.” Id. at 15,202. The Secretary declared

that administration of a covered countermeasure

included “physical provision of a countermeasure

to a recipient, such as vaccination . . . and . . . activities

related to management and operation of programs

and locations for providing countermeasures to

recipients, such as decisions and actions involving

security and queuing.” Id. at 15,200.

¶15. With this background in mind, we turn to

plaintiffs’ amended complaint to determine whether

it can survive the pleadings stage. See Huey v. Bates,

£35 Vt. 160, 161, 375 A.2d 987, 988 (1977) (explaining

rule that, for purposes of appellate review, motions

to dismiss constitute admission that all well-pleaded

facts alleged by plaintiff are true).

C. Defendants’ Immunity Under the PREP Act

¶16. To avoid dismissal on immunity grounds,

plaintiffs would have had to present well-pleaded

allegations showing that (1) at least one defendant

was not a covered person, (2) some conduct by a

defendant was not causally related to administering

a covered countermeasure, (3) the substance injected

into L.P. was not a covered countermeasure, or (4)

there was no PREP Act declaration in effect at the

time L.P. was injected. We address each in turn.

¶17. All defendants in this matter are covered

persons as defined by the PREP Act. “Program

planners” are covered persons under the PREP Act.

42 U.S.C. §247d-6d(i)(2)(B)Gii).

A program planner “means a State or local

government, . . . a person employed by the State or

local government, or other person who supervised

or administered a program with respect to the

administration . . . of a security countermeasure

or a qualified pandemic or epidemic product.” Id.

§247d-6d(i)(6). An “official, agent, or employee”of

a program planner is also a covered person. Id.

§247d-6d(i)(2)(B)(v).

¶18. As noted above, plaintiffs named the

school district, the State, and various individuals as

defendants. Plaintiffs alleged that defendants were

“de facto agents of the State” in the case of individual

persons, or “de facto landlords of the State’s vaccine

clinic,” in the case of the school district. Taking

plaintiffs’ allegations as true, the State and the school

district are program planners as defined by the PREP

Act, and the individual persons plaintiffs allege to

be employees and “de facto agents” are agents or

employees of program planners. It follows that every

defendant is a covered person under the Act.

See Happel v. Guilford Cnty. Bd. of Educ., 899

S.E.2d 387, 392 (N.C. Ct. App. 2024) (holding that

“community group” that administered COVID-19

vaccine to student at student’s school without

parental consent was program planner under PREP

Act), review on additional issues allowed in part, 900

S.E.2d 666 (N.C. 2024), and appeal dismissed, 900

8.E.2d 668 (N.C. 2024).

¶19. Plaintiffs’ allegations relating to consent

and alleged misconduct of defendants in vaccinating

L.P. are causally related to the administration of a

covered countermeasure. As disclosed in the March

2020 COVID-19 declaration, “administration”

includes the “physical provision of a countermeasure

to a recipient,” and “activities related to management

and operation of programs and locations for providing

countermeasure to recipients, such as decisions and

actions involving security and queuing.” 85 Fed.

Reg. at 15,200. For example, plaintiffs’ allegations

recounting how L.P. was removed from his class

and brought to the clinic are “activities related to

management and operation” of a state-sponsored

vaccine clinic and include “decisions and actions

involving security and queuing.” Id.

The unidentified clinic workers present with L.P.

while he was injected with the vaccine were involved

in the “physical provision of a countermeasure to a

patient.” Id. Even the assistant principal’s comments

to father about L.P.’s status and his expressions of

disappointment in the number of vaccine registrations

are comments relating to the “administration and

operation” of the clinic. Id. Despite plaintiffs’ arguments

to the contrary, they have alleged only tortious conduct

that is causally related to the administration of the

vaccine to L.P. See 42 U.S.C. §247d-6d(a)(2)(B); see

also Parker v. St. Lawrence Cnty. Pub. Health Dep’t.,

954 N.Y.S.2d 259, 262 (App. Div. 2012) (holding that

PREP Act immunized defendants who administered

covered countermeasure without parental consent).

¶20. Plaintiffs characterize the Pfizer BioNTech

COVID-19 vaccine as “experimental,” but they do not

dispute that L.P. was injected with the Pfizer vaccine.

Nor do they dispute that the Pfizer vaccine is a covered

countermeasure. See 85 Fed. Reg. at 15, 98-0: (declaring

that covered countermeasures included “any antiviral,

any other drug, any biologic, any diagnostic, any other

device, or any vaccine, used to treat, diagnose, cure,

prevent, or mitigate COVID-19, or the transmission of

SARS-CoV-2 or a virus mutating therefrom”); see also

M.T. ex rel. M.K. v. Walmart Stores, Inc., 528 P.3d

1067, 1074 (Kan. Ct. App. 2023) (“Application of the

PREP Act does not turn on the effectiveness of the

countermeasure.”).

¶21. Finally, as outlined above, supra, §14, there

was undisputedly a COVID-19 PREP Act declaration

in effect in November 2021 when the vaccine was

administered to L.P.

¶22. Plaintiff’s claims are entirely based on the

alleged actions of covered persons who administered

a covered countermeasure to L.P. during the effective

period of a PREP Act declaration. As a result, each

defendant is immune from plaintiffs' state-law claims,

all of which are causally related to the administration

of the vaccine to L.P. 42 U.S.C. §247d-6d(a)(1)

(immunizing “covered person . . . from suit and liability

under Federal and State law with respect to all claims

for loss caused by, arising out of, relating to, or resulting

from the administration to or the use by an individual

of a covered countermeasure” (emphasis added)).

¶23. Other courts faced with similar facts have

come to the same conclusion. In M.T. ex rel. M.K., a

Walmart employee vaccinated a fifteen-year-old in

Kansas without parental consent. 528 P.3d at 071.

The child's mother alleged that another Walmart

employee told the child that she did not need consent

because she was fifteen, which was not true under

Kansas law. The mother sued Walmart under state

law. The trial court dismissed all but the mother's

claims relating to consent and parental rights, and

both parties appealed. Id. at 1072. The appeals court

concluded that Congress intended the PREP Act’s

immunity provision to apply to all claims based on

the administration of a covered countermeasure,

including those without parental consent. Id. at 1084.

The court reversed and remanded with instructions to

dismiss all claims. Id. at 1085.

¶24. In Cowen,v. Walgreen Co., the plaintiff filed

state-law claims against Walgreen Co. after she was

administered a Moderna COVID-19 vaccine instead of

a flu vaccine without her knowledge or consent and

was allegedly injured. No. 22-CV-157-TCK-JF 2022

WL 17640208, at *2 (N.D. Okla. Sept. 13, 2022).

The plaintiff argued that defendant was not

protected from liability by the PREP Act because her

injuries “could have resulted from any vaccination

or other medical procedure at Walgreens.” Id. at *3.

Sitting in diversity, the district court concluded that

because the plaintiff's injuries actually resulted from

the administration of the Moderna vaccine, the PREP

Act applied. Id. It therefore dismissed her complaint.

Id.

¶25. A case decided by the New York Supreme

Court, Appellate Division, Parker, 954 N.Y.S.2d

at 260, bears striking resemblance to the facts

plaintiffs allege here. In response to an outbreak of

the HINI influenza virus, the Secretary issued a

PREP Act declaration in 2009 recommending the

administration of Peramivir, an antiviral drug, as a

covered countermeasure. A vaccination clinic was held

at the school of the plaintiff's child. The plaintiff did

not consent to the administration of Peramivir. The

child was nevertheless vaccinated. The plaintiff sued

the county health department and other defendants,

asserting state-law claims for negligence and battery.

The Appellate Division concluded that the

PREP Act's plain language expressed Congress’s

intent to preempt claims involving covered persons

administering a countermeasure without parental

consent. Id. at 263.

¶26. Plaintiffs' attempts to distinguish Parker

are meritless. Plaintiffs focus on the fact that the

defendants in Parker were “qualified persons” under

the PREP Act. Id. at 261-62; see 42 U.S.C. §247d-6d(i)

(2)(iv),(i)(8) (defining qualified person, in part, as “a

licensed health countermeasures under the law of the

State in which the countermeasure was prescribed,

administered, or dispensed”). Plaintiffs argue that

defendants in this case were not “qualified,” asserting

that defendants “received NO training” about consent

required to administer vaccines. As discussed

above, however, plaintiffs’ allegations establish that

defendants are all covered persons under a separate

provision of the Act. Their specific training or lack

thereof is irrelevant.

¶27. Plaintiffs also assert that Peramivir is a

“traditional vaccine” whereas the Pfizer vaccine is

experimental. To the extent this is an argument that

the Parker court would have ruled differently if the

Pfizer COVID-19 vaccine had been involved instead

of Peramivir, this has no basis in the PREP Act. See

M.T. ex rel. M.K., 528 P.3d at 1074 (“Application of

the PREP Act does not turn on the effectiveness of the

countermeasure”). The Pfizer vaccine was a covered

countermeasure at the time it was administered to

L.P. See supra, ¶20.

¶28. Plaintiffs argue that “the New York state

of emergency was in full swing” at the time of the

vaccine administration in Parker. They contrast that

with the fact that Vermont’s professional or other

individual who is authorized to prescribe, administer,

or dispense such public-health emergency declaration

was not in effect when L.P. was in injected. True or

not, this observation is immaterial.3

3 Neither party has directed the Court to a citation sup-

porting plaintiffs' allegation. We decline to take judicial notice of

whether Vermont had a public-health emergency declaration in

effect in November 2021 because the answer has no bearing on

our analysis.

Nothing in the PREP Act turns on whether a

state declaration is in effect. See 42 U.S.C. §247d-6d(b)

(1) (authorizing Federal Health and Human Services

Secretary to issue declaration on “determination that

a disease or other health condition or threat to health

constitutes a public health emergency”). Parker and

the other case law cited above support our conclusion

that defendants are immune from liability under the

PREP Act.

D. Preemption of State-Law Claims Against

Persons Immune from Liability

¶29. Plaintiffs argue that their claims can

nevertheless proceed because the PREP Act only

preempts claims against covered persons for willful

misconduct.4

They point to various federal decisions

concluding that the PREP Act does not preempt

state-law claims.

4 Plaintiffs have not pleaded a willful misconduct claim.

These cases are inapposite because they

address the question of whether the PREP Act creates

federal-question subject-matter jurisdiction over

certain health-care-related claims. See, e.g., Solomon

v. St. Joseph Hosp., 62 F.4th 54, 60-6: (2d Cir. 2023)

(distinguishing between “complete preemption,” which

provides subject-matter jurisdiction and "ordinary

preemption," which is affirmative defense). None of

these cases supports the proposition that plaintiffs

can proceed in state court against defendants who

are completely immunized from liability under the

Act. See Solomon, 62 F.4th at 60; Maglioli v. All. HC

Holdings LLC, 16 F.4th 393, 406-13 (3d Cir. 2021);

Mitchell v. Advanced HCS, LLC, 28 F.4th 580, 584-88

(5th Cir. 2022); Cagle v. NHC Healthcare-Maryland

Heights, LLC, 78 F.4th 1061, 1065-67 (8th Cir. 2023);

Saldana, 27 F.4th at 687-88.5

5 The trial court and state defendants correctly observe

that these cases are largely based on allegations of nonfeasance

by health-care facilities in the early days of the pandemic. They

do not involve alleged misfeasance by covered persons adminis-

tering covered countermeasures. While true, we think the clear-

er distinction is that offered by the circuit courts themselves: the

PREP Act completely preempts only one claim but may provide a

complete defense in state court if defendants can establish their

immunity.

These decisions hold that absent a claim for

willful misconduct, the PREP Act does not provide

a basis for federal- question jurisdiction when the

plaintiff has pleaded only state-law claims.

¶30. However, the PREP Act does contain

an express preemption provision. See 42 U.S.C.

§247d-6d(b)(8) (“During the effective period of a

declaration. . . or at any time with respect to conduct

undertaken in accordance with such declaration,

no State or political subdivision of a State may

establish, enforce, or continue in effect with respect

to a covered countermeasure any provision of law

or legal requirement that . . . is different from, or is

in conflict with, any requirement applicable under

this section.”). Other state courts faced with similar

facts have concluded that state-law claims against

immunized defendants cannot proceed in state court

in light of the PREP Act's immunity and preemption

provisions, including claims based on the failure to

secure parental consent. See, e.g., Happel, 899 S.E.2d

at 393-94 (“We conclude that . . . the broad scope of

immunity provided by the PREP Act applies to. . .

[defendants in this case.”); M.T. ex rel. M.K., 528

P.3d at 426-27 (same); Parker, 954 N.Y.S.2d at 263

(same).

We agree and hold that the PREP Act’s

immunity and preemption provisions bar plaintiffs’

state-law claims.

¶31. Plaintiffs have accordingly failed to state

a claim upon which relief can be granted because

their lawsuit cannot proceed as a matter of law. See

Birchwood Land Co. v. Krizan, 20:5 VT 37, q 6, 98

Vt. 420, 15 A.3d 1009 (explaining that we will uphold

dismissal motion only where “it is beyond doubt that

there exist no facts or circumstances that would entitle

the plaintiff to relief.” (quotation omitted)).

Affirmed.

FOR THE COURT:

Karen R. Carroll Associate Justice

APPENDIX B

Filed: August 23, 2024

VERMONT SUPREME COURT

Case No. 23-AP-237

ENTRY ORDER AUGUST TERM, 2024

Dario Politella & Shujen Politella v.

Windham Southeast School District et al.

APPEALED FROM:

Superior Court, Windham Unit, Civil Division

CASE NO. 22-CV-01707

In the above-entitled cause, the Clerk will enter:

Plaintiffs' motion for reargument fails to satisfy

the criteria set forth in V.R.A.P. 40, and it is therefore

denied.

BY THE COURT:

Paul L. Reiber. Chief Justice

Harold E. Eaton, Jr. Associate Justice

Karen R. Carrol Associate Justice

William D. Cohen, Associate Justice

Nancy J Waples, Associate Justice

Mike Rodgers

Nov 20Liked by John Klar

So, was it the incompetency of the Vermont Supreme Court that resulted in the adverse ruling to the Politella's claim or a perverse ideological impulse to protect the interests of governmental control over the State's citizenry? I am so glad that you are involved in this fight--it is a worthy cause, for sure!

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Stephen North

This is so awesome John!! You’re the perfect person for this. Go John go!!’

Is there a go fund me page?

This case is a perfect example of we the people loosing our God given rights as AMERICANS! Fight! Fight! Fight!

1 reply by John Klar

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Politella Petition for Writ of Certiorari

vs. Windham Southeast School District and State of Vermont, et al.

The Politellas filed the following Petition with the uS Supreme Court on November 19, 2024:

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