62 F.4th 54
2d Cir.2023Background
- Solomon was admitted to St. Joseph Hospital in March 2020 for COVID-19, was intubated for ten days, and developed severe pressure sores while hospitalized.
- He sued the hospital and its operator in New York state court for medical malpractice, negligence, and gross negligence.
- Defendants removed the case to federal court, asserting immunity under the federal PREP Act and New York’s EDTPA, and invoking the federal-officer removal statute; Solomon did not contest removal below.
- Defendants moved to dismiss for lack of subject-matter jurisdiction and on immunity grounds; the district court denied the motion, finding PREP Act and EDTPA inapplicable to Solomon’s claims.
- Defendants appealed; the Second Circuit reviewed whether federal jurisdiction existed and concluded removal was improper, vacating the district court’s order and directing remand to state court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Complete preemption under the PREP Act | Solomon’s state malpractice/negligence claims are ordinary state-law claims not invoking federal law. | PREP Act completely preempts state-law claims related to covered countermeasures, so removal is proper. | PREP Act does not completely preempt negligence/malpractice/gross negligence because it creates only a narrow federal cause (willful misconduct) and an immunity scheme; removal on complete-preemption grounds denied. |
| Federal-officer removal (28 U.S.C. §1442) | Solomon: defendants are private health providers and do not act under federal officers. | Defendants: acting under federal direction/regulation during COVID-19 (carrying out federal programs/covered countermeasures). | Defendants did not show they “acted under” a federal officer; mere regulation or designation of an industry as critical is insufficient for §1442 removal. |
| Federal “arising under” jurisdiction (Grable/Gunn test) | Solomon: complaint pleads only state-law claims and thus raises no necessary federal issue. | Defendants: PREP Act immunity raises a federal issue that is central to the dispute, supporting federal jurisdiction. | The complaint does not necessarily raise a federal issue; anticipated PREP Act defenses cannot be used to establish §1331 jurisdiction. No arising-under jurisdiction. |
| Appellate review of subject-matter jurisdiction | Solomon did not object to removal below. | Defendants sought interlocutory review of the district court’s denial of immunity. | Court has jurisdiction on appeal to determine whether the lower federal court had subject-matter jurisdiction and may correct lack of jurisdiction sua sponte; remand required. |
Key Cases Cited
- Caterpillar Inc. v. Williams, 482 U.S. 386 (well-pleaded complaint rule governs federal-question removal)
- Metro. Life Ins. Co. v. Taylor, 481 U.S. 58 (complete preemption converts state claim to federal for jurisdictional purposes)
- Beneficial Nat'l Bank v. Anderson, 539 U.S. 1 (complete preemption principles)
- Aetna Health Inc. v. Davila, 542 U.S. 200 (scope-of-federal-cause inquiry in complete preemption analysis)
- Watson v. Philip Morris Cos., Inc., 551 U.S. 142 (limits on what it means for private parties to “act under” federal officers)
- Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308 (substantial federal interest test for "arising under")
- Gunn v. Minton, 568 U.S. 251 (four-part test for state-law claims raising federal issues)
- Whitehurst v. 1199SEIU United Healthcare Workers E., 928 F.3d 201 (discussion of complete preemption as a rare exception)