58 F.4th 845
6th Cir.2023Background
- Plaintiff Laura Hudak (as executrix) sued Elmcroft of Sagamore Hills and related entities in Ohio state court after her father died of COVID-19, alleging negligence, willful/reckless misconduct, wrongful death, and related state-law claims.
- Elmcroft removed to federal court under the general removal statute (28 U.S.C. §1441(a)) and the federal-officer removal statute (28 U.S.C. §1442(a)(1)), invoking the PREP Act as a defense and basis for federal jurisdiction.
- The PREP Act grants immunity to “covered persons” for losses caused by the administration or use of covered countermeasures, but creates an exclusive federal cause of action only for death or serious physical injury proximately caused by willful misconduct related to administration/use of a covered countermeasure.
- Hudak’s complaint did not allege willful misconduct tied to the administration or use of a covered COVID-19 countermeasure, nor that a countermeasure’s administration or use caused her father’s death; instead it alleged failures to use countermeasures and to provide appropriate care.
- The district court remanded for lack of subject-matter jurisdiction; the Sixth Circuit affirmed, holding (1) the PREP Act did not completely preempt Hudak’s state-law claims and (2) §1442 removal failed because Elmcroft was not shown to have been “acting under” a federal officer.
Issues
| Issue | Plaintiff's Argument (Hudak) | Defendant's Argument (Elmcroft) | Held |
|---|---|---|---|
| Whether the PREP Act completely preempts Hudak’s state-law claims, permitting removal under §1441(a) | Hudak argued her claims are ordinary state-law torts not subsumed by PREP; PREP Act immunity is a defense only | Elmcroft argued PREP Act (and its exclusive federal cause of action) displaces state claims related to COVID-19 countermeasures, converting them into federal claims | Held: No. PREP Act does not completely preempt Hudak’s claims because she did not plead willful misconduct related to administration/use of a covered countermeasure and thus cannot invoke the Act’s exclusive federal cause of action |
| Whether Hudak’s claims present a substantial federal question under Grable, allowing removal under §1441(a) | Hudak: state-law tort claims that don’t necessarily raise federal issues | Elmcroft: PREP Act raises substantial federal issues (preemption/interpretation) central to the case | Held: No. Hudak’s claims do not necessarily raise a federal issue; Elmcroft’s anticipated PREP Act defense does not convert the state claims into federal ones |
| Whether Elmcroft was entitled to federal-officer removal under §1442(a)(1) (acting-under requirement) | Hudak: Elmcroft acted as a private provider, not under federal control; thus §1442 inapplicable | Elmcroft: Federal guidance/regulation and pandemic-response duties meant it was acting under federal officers and performing government-directed functions | Held: No. Elmcroft failed to show a relationship of federal subjection, control, or enlistment (mere compliance with federal guidance/regulation is insufficient) |
| Appellate jurisdiction to review remand under §1447(d) | Hudak: challenged appellate jurisdiction | Elmcroft: removal invoked §1442 so remand order is reviewable | Held: The court had appellate jurisdiction because Elmcroft invoked §1442 in its notice of removal, so §1447(d) permitted review |
Key Cases Cited
- Cannon v. Watermark Ret. Cmtys., 45 F.4th 137 (D.C. Cir. 2022) (discussing PREP Act purpose and scope)
- Beneficial Nat’l Bank v. Anderson, 539 U.S. 1 (2003) (well-pleaded complaint rule for federal-question removal)
- Aetna Health Inc. v. Davila, 542 U.S. 200 (2004) (complete-preemption framework and when ERISA converts state claims)
- Caterpillar Inc. v. Williams, 482 U.S. 386 (1987) (ordinary preemption is a defense, not a basis for removal)
- Metro. Life Ins. Co. v. Taylor, 481 U.S. 58 (1987) (complete preemption concept)
- Grable & Sons Metal Prods. v. Darue Eng’g & Mfg., 545 U.S. 308 (2005) (substantial federal-question test)
- Gunn v. Minton, 568 U.S. 251 (2013) (limits on arising-under jurisdiction for state-law claims)
- Watson v. Philip Morris Cos., 551 U.S. 142 (2007) (acting-under requirement requires more than compliance with federal law)
- Bennett v. MIS Corp., 607 F.3d 1076 (6th Cir. 2010) (private contractor found to be acting under FAA for §1442 removal)
- Maglioli v. All. HC Holdings LLC, 16 F.4th 393 (3d Cir. 2021) (similar PREP Act removal disputes)
- Manyweather v. Woodlawn Manor, Inc., 40 F.4th 237 (5th Cir. 2022) (PREP Act did not preempt non-willful-misconduct claims)
- Martin v. Petersen Health Ops., LLC, 37 F.4th 1210 (7th Cir. 2022) (distinguishing failures-to-use countermeasures from PREP-covered conduct)
- Saldana v. Glenhaven Healthcare LLC, 27 F.4th 679 (9th Cir. 2022) (PREP Act removal analysis)
- Mesa v. California, 489 U.S. 121 (1989) (§1442 removal confers federal jurisdiction)