By Jay Fisher
When the history of the current COVID-19 pandemic is written, it will encompass thousands of stories ranging on an endless number of topics. From families impacted by the illness to overtaxed healthcare systems to economic ruin spread by the virus – this pandemic has thrust its tentacles into every corner of human concerns and touched every corner of the globe. Furthermore, and not surprisingly, the United States of America has become an epicenter of this global problem. It is the world’s largest economy and accounts for approximately 25 percent of the diagnosed COVID-19 cases globally. When the disease’s history is written, America’s stories will be a large component of that.
Some of this history will be easy to recognize in importance, such as the negative economic impact created, social distancing, and healthcare concerns. Other stories will be more local and not have wide-ranging effects. Somewhere in between these two positions are stories that might look benign or local on the surface but should be recognized for their importance because of the broad and negative impact they could have in any setting.
One of these stories that should cause alarm for any person involved in planning for large-scale emergencies occurred in mid-April 2020 in South Florida. The federal government seized approximately one million N95 masks that were designated for Miami-Dade (FL) firefighters.(1) This story received a blip of attention at the time it occurred and became lost in the noise of all the other pandemic stories that rapidly developed and continue to arise.
The concerns and complications this should raise in the minds of emergency planners is obvious. Under what authority can the feds come into a local system and seize supplies that emergency workers need to do their jobs effectively? How can emergency directors plan for the future when authorities can simply appear and upend those plans on a moment’s notice? And what remedies can these same local directors take to challenge any such confiscation?
What the public may not realize is that the South Florida N95 mask confiscation was not an isolated incident. The federal government, acting through the Federal Emergency Management Agency (FEMA), also seized medical supplies in places like Connecticut, Kentucky, Massachusetts, and Colorado.(2)
The answer to the last question of what local planners can do is: “Not much.” The federal government was not truly “seizing” medical supplies destined for other, local parties. Instead, it was flexing its authority so that the medical suppliers had no choice but to divert their finite inventories first to the federal government to satisfy its requests. In the event there was still inventory left over after the federal government’s needs were met, those supplies would be distributed to the local authorities. The law under which the federal government was doing this is called the Defense Production Act (DPA).(3)
The Defense Production Act of 1950 is a Cold War-era law intended to ensure that the United States government has the materials and attention of the business community to promote the nation’s defense and protect the country’s safety.(4) The Act has three major components: (A) a provision allowing the president to require businesses to prioritize federal government contracts over any others; (B) a section which permits the president to establish mechanisms that direct private business to increase both capacity and supply; and (C) a grant of presidential authority whereby the president can control the civilian economy and direct the flow of scarce resources.(5)
There are two key components to the Defense Production Act which greatly affect its use with COVID-19. First, even though the act has the word “defense” in the title, it is used for lots of government business that does not involve the military or armed conflict. For instance, it is used with hurricane or wildland fire relief to ensure that resources are favorably allocated. Second, it has been used by the federal government thousands and thousands of times since the act’s inception. Therefore, the government is perfectly comfortable using this law for whatever aims and goals it views as priorities.
The federal government officially invoked the Defense Production Act in the fight against COVID-19 on April 2, 2020, when President Trump issued an executive order directing the head of Homeland Security to “use any and all authority available under the Act to acquire, from any appropriate subsidiary or affiliate of 3M Company, the number of N-95 respirators that the Administrator determines to be appropriate.”(6) There have been added calls by members of Congress and the greater public for President Trump to invoke the Defense Production Act for other COVID-related resources, such as ventilators and personal protective equipment (PPE). If a vaccine is developed to fight COVID-19, it is not unreasonable to expect that the government will use the DPA to force pharmaceutical companies to use their entire production capacity to generate enough doses for every American man, woman, and child in the quickest time frame possible.
The takeaway is that if the government invokes the DPA for an item it deems essential, businesses are basically bound to honor that request above all others. This obviously includes local authorities. If the feds want your agency’s N95 masks for whatever purposes it deems important and those masks have either not been delivered to your agency or may have not even left the factory yet, the federal government is going to get them no matter what.
What can an emergency services agency do in light of the DPA when a truly large-scale disaster strikes and the supplies it requires to do its job end up in short supply?
It might be easier to highlight what not to do when the agency is faced with this scenario. First and foremost on the “don’t do” list is engage in litigation. There are roughly 400 published court decisions which mention the DPA and 90 percent of those were rendered at the federal level. A sample review of those rulings show that the courts have been very, very deferential to the powers granted to the federal government under the DPA. Therefore, the chances of prevailing in litigation claiming that the government exceeded its authority and wrongly diverted essential materials to handle an emergency are amazingly low.
Likewise, the DPA also provides broad protection to materials manufacturers and suppliers. The DPA contains a defense for private actors who are answering the government’s call: “No person shall be held liable for damages or penalties for any act or failure to act resulting directly or indirectly from compliance with a rule, regulation, or order issued pursuant to this chapter[.]”(7) This protection is so broad that, even if a court subsequently finds that the rule, regulation, or order invoking the DPA was invalid, a private contractor may still invoke the protections granted under the law and avoid any liability.(8)
Therefore, EMS and fire services are relegated to taking measures outside the judicial process. These would include:
- Planning and storing for the next pandemic. The current COVID pandemic is providing public safety agencies with valuable knowledge about what is needed for the next global emergency. The acronym “PPE” has moved from the medical and public safety spheres into the wider public’s lexicon. Items like N95 masks, surgical masks, rubber or nitrile gloves, and protective gowns will always be in heavy demand during mass infectious outbreaks. Public safety agencies must learn to plan for such disasters and keep these items available when market shortages occur. There are obvious and large complications with this strategy. Procuring these materials not only costs money but storing them also incurs expenses. Certain materials’ efficacy may also diminish over time as well. Think of the quality of rubber gloves degrading over time. This is less of a concern if there was a short period between outbreaks. However, if decades pass between pandemics, this could have great and adverse effects on the supplies stored for such emergencies.
- Identify alternative sources for resources which are unaffected by the DPA. The territorial reach of the DPA is limited – it only affects manufacturers within the boundaries of the United States (which would include international manufacturers who have operations based in the country). Thus, if the federal government has choked off the PPE tap domestically, it would benefit public safety agencies to locate international providers who can supply masks, gloves, or gowns when the next pandemic hits. Once again, there are complications with this strategy: shipping times and costs are increased; items may be subject to certain federal laws or orders that can affect the bottom line (think of tariffs imposed on Chinese goods imposed by President Trump); or the needed items may not be manufactured to domestically-approved standards. Even in the face of these potential complications, however, alternative international manufacturers can provide a trickle of PPE greater than that offered domestically by manufacturers when the DPA is invoked.
- Seek assistance of elected congressional officials. Inside each congressperson’s or senator’s office is a cadre of staff dedicated to something called “constituent services.” The individuals in constituent services assist citizens from the elected person’s district with problems that involve the federal government. These staffers oftentimes have excellent organizational knowledge and know how to “open doors” or “grease wheels” that are beyond the abilities of the average person. The problems handled by constituent services commonly involve Social Security checks, issues with VA coverage, or problems with Medicare/Medicaid coverage. Public safety agencies should know that constituent services would be very receptive to helping manage problems which affect fire and EMS services. Success here would amount to positive press coverage for the elected official. If a public safety agency found its PPE supplies cut off by the federal government under the DPA, a federal elected official may be able to intervene and help manage the situation. Although he or she may not get the full allotment back to the agency, the elected official may get at least a portion returned–and in a pandemic, something is better than nothing. However, public safety managers should also realize here that “not all congressional members are created equal.” A senator who sits on committees that oversee FEMA will likely have greater “pull” than a congressperson who has no such oversight. Therefore, identifying and targeting elected federal officials who oversee agencies choking off PPE supplies would be beneficial.
There is a logic to the DPA that a reasonable person should recognize. The average citizen would agree that the federal government should have the resources it needs to manage a major emergency. However, the former Speaker of the United States Congress Thomas “Tip” O’Neil said “all politics are local.” The district EMS or fire chief might not be so reasonable when his or her PPE has been rerouted to another location upon a federal bureaucrat’s assessment that “the need is greater” in another place. It also does not help that the DPA is not used in a limited fashion by the federal government. Its frequent invocation for a variety of supposed “emergencies” can direct people to think that we live in a something other than a capitalist system – instead of the market directing where scarce resources are directed, the government tells manufacturers where to send these materials.
The key conclusion for EMS and fire managers to realize is they have very limited abilities to challenge the DPA. A direct assault against government action under the zct is basically fruitless. Instead, the remaining options are preplanning, identifying alternative sources, or arm-twisting the feds. If an agency is going to manage the next pandemic in the face of the DPA, it would be best to use all three options to ensure their own public safety workers are adequately protected.
Addendum: President-elect Biden has indicated that, in response to the COVID-19 pandemic, he intends to create the new position of “national supply commander” to coordinate the flow of essential medical supplies. It is inevitable that this individual will heavily rely upon the federal Defense Production Act.
Jay Fisher is an attorney who practices both criminal and civil law and is licensed in both Arizona and Colorado. He is also a fire medic for the Rattlesnake Fire Department and Kiowa Fire Department in Elbert County, Colorado. He also works as a part-time paramedic for AMR in both Colorado and Wyoming, and the St. Louis Fire Department in Missouri.
(1) “Feds Seized Shipment Of One Million Masks To Miami-Dade, Say Officials,” April 22, 2020 https://www.wlrn.org/post/feds-seized-shipment-one-million-masks-miami-dade-say-officials
(2) “‘Swept Up by FEMA’: Complicated Medical Supply System Sows Confusion,” April 6, 2020
(3) “Hospitals say feds are seizing masks and other coronavirus supplies without a word.” April 7, 2020 https://www.latimes.com/politics/story/2020-04-07/hospitals-washington-seize-coronavirus-supplies
(4) 50 U.S.C. §§4501 et seq.; 15 CFR §§700 to 700.93.
(5) Lockwood, David E. (June 22, 2001). Defense Production Act: Purpose and Scope (Report). Washington, D.C.: Congressional Research Service.
(7) 50 U.S.C. § 4557.
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