516 F.Supp.3d 238
E.D.N.Y.2021Background
- Plaintiff (administrator of estate) sued Linden Center (Brooklyn nursing home) in New York state court after his father died of COVID-19, alleging negligence, gross negligence, wrongful death, malpractice, and violations of NY Public Health Law for failures to prevent COVID-19 spread.
- Defendants removed to federal court asserting (1) federal-question jurisdiction under the PREP Act (complete preemption or Grable substantial federal question) and (2) federal-officer removal under 28 U.S.C. § 1442(a)(1).
- The PREP Act Declaration (HHS, amended multiple times) provides immunity to "covered persons" for claims "caused by, arising out of, relating to, or resulting from the administration to or use by an individual of a covered countermeasure," and creates an administrative compensation scheme; only willful-misconduct suits may be brought in D.C. after exhaustion.
- Defendants argued PREP Act either (a) completely preempts plaintiffs’ state-law claims or (b) presents a substantial, disputed federal issue under Grable; they also argued nursing-home compliance with CDC/CMS guidance made them persons "acting under" federal officers.
- Court held removal improper: PREP Act does not completely preempt these state-law claims, Grable exception does not apply, and defendants are not acting under federal officers for § 1442 removal. Case remanded to Kings County Supreme Court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Complete preemption by PREP Act | PREP Act does not convert state tort claims into federal causes of action | PREP Act and HHS advisory opinions make PREP Act a complete-preemption statute | Not completely preemptive; PREP Act is primarily an immunity/administrative scheme and does not create an exclusive federal cause of action for these claims |
| 2. Scope of PREP Act (are alleged failures "administration/use" of covered countermeasures?) | Claims arise from general failures in infection control, not from administration or allocation of covered countermeasures | Alleged harms relate to use/administration of PPE, screening, treatments—thus within PREP Act scope | Plaintiffs’ claims are not based on administration/ allocation of covered countermeasures and thus fall outside PREP Act coverage |
| 3. Grable substantial-question exception | State claims do not necessarily turn on federal-law interpretation | PREP Act raises substantial federal questions that must be resolved in federal court under Grable | Grable exception not satisfied: federal issue is not a necessary element of plaintiffs’ well-pleaded claims |
| 4. Federal-officer removal under §1442 | Defendants are private actors subject to state law | Compliance with CDC/CMS directives and federal guidance amounted to acting under federal officers | Defendants are "highly regulated" but do not have the required special relationship to federal officers; §1442 removal fails |
Key Cases Cited
- Metro. Life Ins. Co. v. Taylor, 481 U.S. 58 (clarifies the well-pleaded complaint rule)
- Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149 (establishes well-pleaded complaint principle)
- Franchise Tax Bd. v. Constr. Laborers Vacation Tr., 463 U.S. 1 (federal defenses do not authorize removal)
- Caterpillar Inc. v. Williams, 482 U.S. 386 (complete preemption doctrine explained)
- Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308 (substantial federal-question jurisdiction)
- Gunn v. Minton, 568 U.S. 251 (limits Grable to a narrow class of cases)
- Sullivan v. Am. Airlines, Inc., 424 F.3d 267 (2d Cir. on complete preemption and artful pleading)
- In re WTC Disaster Site, 414 F.3d 352 (2d Cir. recognizing ATSSSA complete preemption)
- Isaacson v. Dow Chem. Co., 517 F.3d 129 (standards for federal-officer removal in 2d Cir.)
- Watson v. Philip Morris Cos., 551 U.S. 142 (private compliance with federal regulation insufficient for §1442 removal without special relationship)
- Mead Corp. v. United States, 533 U.S. 218 (limits deference to agency opinion letters)
- Beneficial Nat’l Bank v. Anderson, 539 U.S. 1 (statute can authorize removal when it creates exclusive federal remedy)