27 F.4th 679
9th Cir.2022Background
- Ricardo Saldana, a resident of Glenhaven Healthcare, died at the nursing home in April 2020 allegedly from COVID-19; four relatives sued Glenhaven in California state court for elder abuse, willful misconduct, custodial negligence, and wrongful death.
- Glenhaven removed the action to federal court asserting three bases for federal jurisdiction: federal officer removal (28 U.S.C. § 1442), complete preemption under the PREP Act, and the embedded federal-question doctrine.
- Glenhaven relied on federal communications from CMS, CDC, HHS and CISA guidance (including critical-infrastructure designation) to argue it was acting under federal direction during the pandemic.
- The HHS Secretary issued a PREP Act declaration in March 2020 providing immunity for activities related to COVID-19 countermeasures and created a limited federal cause of action for willful misconduct.
- The district court remanded for lack of subject-matter jurisdiction; Glenhaven appealed.
- The Ninth Circuit affirmed, holding Glenhaven failed to show it acted under a federal officer, the PREP Act does not completely preempt the plaintiffs’ state-law claims, and no embedded federal question appears on the complaint’s face.
Issues
| Issue | Saldana's Argument | Glenhaven's Argument | Held |
|---|---|---|---|
| Federal-officer removal (28 U.S.C. § 1442) — was Glenhaven "acting under" a federal officer? | State tort claims against a private nursing home; no federal-actor status. | Federal agencies issued detailed pandemic directives and guidance conscripting nursing homes; critical-infrastructure designation meant Glenhaven acted for the government. | Glenhaven did not show it was "acting under" a federal officer; mere compliance with regulations and guidance (and critical-infrastructure designation) is insufficient, so § 1442 removal fails. |
| Complete preemption under the PREP Act — does PREP wholly displace state-law claims? | Plaintiffs’ state claims are not displaced; PREP provides limited immunity and an exclusive federal willful-misconduct remedy only. | PREP and HHS/OGC opinions mean PREP completely preempts state claims arising from COVID-19 countermeasures, supporting federal jurisdiction. | PREP is not a complete-preemption statute as to non-willful-misconduct claims; it provides a narrow federal cause only for willful misconduct and an administrative compensation scheme, so complete preemption fails. |
| Embedded federal question (Gunn factors) — does the complaint necessarily and substantially raise federal issues? | Complaint asserts California-law causes of action without federal question on its face. | Willful-misconduct claim implicates PREP immunity, creating a federal issue suitable for federal jurisdiction. | The complaint does not necessarily or substantially present a federal issue on its face; a federal defense under PREP is insufficient for embedded-federal-question jurisdiction. |
Key Cases Cited
- Watson v. Philip Morris Cos., Inc., 551 U.S. 142 (2007) (defining "acting under" for federal-officer removal and limiting removal where private compliance with regulation is insufficient)
- City of Oakland v. BP PLC, 969 F.3d 895 (9th Cir. 2020) (two-part test for complete preemption inquiry)
- Stirling v. Minasian, 955 F.3d 795 (9th Cir. 2020) (elements required for federal-officer removal)
- Fidelitad, Inc. v. Insitu, Inc., 904 F.3d 1095 (9th Cir. 2018) (federal-officer removal standards)
- Maglioli v. All. HC Holdings LLC, 16 F.4th 393 (3d Cir. 2021) (PREP Act scope and Secretary’s declaration control immunity)
- Gunn v. Minton, 568 U.S. 251 (2013) (embedded federal-question doctrine and four-part test)
- Caterpillar Inc. v. Williams, 482 U.S. 386 (1987) (well-pleaded complaint rule governing federal-question jurisdiction)