37 F.4th 1210
7th Cir.2022Background
- In May 2020 Marlene Hill died of COVID-19 while in a nursing home; her daughter Anita Martin sued the home under the Illinois Nursing Home Care Act.
- The nursing home removed the suit to federal court, invoking (1) federal-officer removal, 28 U.S.C. §1442(a)(1), and (2) federal-question/complete-preemption removal under 28 U.S.C. §1441(a) based on the PREP Act.
- The district court remanded; the nursing home appealed. The court had appellate jurisdiction because removal rested on a §1442 claim.
- The Seventh Circuit rejected §1442 removal: extensive federal regulation (including CDC guidance) does not make a regulated private nursing home a person “acting under” a federal officer.
- The court rejected complete preemption under the PREP Act: §247d–6d(a)(1) is a defense (preemption), §247d–6d(d)(1) creates a limited federal remedy for willful misconduct tied to covered countermeasures, and Martin’s allegations (staffing, failing to isolate, allowing sick staff to work) do not involve covered countermeasures.
- The court also held Grable-based federal-question jurisdiction inapplicable because the case turns on state-law factual issues, not a disputed federal issue that would be dispositive. The remand was affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §1442(a)(1) (federal‑officer removal) permits removal | Martin: nursing home is private; no federal‑officer status | Nursing home: heavy federal regulation and CDC orders make it "acting under" a federal officer | Rejected — regulation/compliance does not make a private nursing home a person "acting under" a federal officer (Blum/Watson line) |
| Whether the PREP Act completely preempts state claims (complete‑preemption under §1441) | Martin: claims are ordinary state torts not displaced by PREP | Nursing home: PREP bars state liability for covered countermeasures and creates an exclusive federal cause of action, so removal is proper | Rejected — PREP provides a defense and a limited federal remedy for willful misconduct involving covered countermeasures; it does not wholly displace state causes of action at issue |
| Whether Grable federal‑question jurisdiction applies | Martin: main disputes are state‑law conduct/fact questions | Nursing home: PREP and federal issues are central and dispositive | Rejected — federal issues are not the only or necessarily dispositive questions; case centers on state‑law factual issues (staffing, isolation, sick employees) |
Key Cases Cited
- Blum v. Yaretsky, 457 U.S. 991 (1982) (extensive federal regulation does not convert private actor into state actor)
- Watson v. Philip Morris Cos., 551 U.S. 142 (2007) (regulation differs from acting under a federal officer for §1442)
- Lu Junhong v. Boeing Co., 792 F.3d 805 (7th Cir. 2015) (private manufacturers remain private despite pervasive federal regulation)
- Beneficial Natl. Bank v. Anderson, 539 U.S. 1 (2003) (standard for complete preemption: federal statute must create an exclusive cause of action)
- Grable & Sons Metal Prods. v. Darue Eng’g, 545 U.S. 308 (2005) (when a federal issue embedded in a state claim can supply federal jurisdiction)
- Maglioli v. Alliance HC Holdings LLC, 16 F.4th 393 (3d Cir. 2021) (similar holding rejecting removal in COVID‑related nursing‑home suits)
- Mitchell v. Advanced HCS, L.L.C., 28 F.4th 580 (5th Cir. 2022) (similar holding)
- Saldana v. Glenhaven Healthcare LLC, 27 F.4th 679 (9th Cir. 2022) (similar holding)
- Adams Fruit Co. v. Barrett, 494 U.S. 638 (1990) (apply statute without deferring to nonbinding agency views)
- United States v. Mead Corp., 533 U.S. 218 (2001) (limits on Chevron deference for informal agency statements)
- Christensen v. Harris County, 529 U.S. 576 (2000) (agency interpretations in opinion letters are not entitled to Chevron deference)