MARC DUPERVIL, as the Proposed Administrator of the Estate of FREDERIC DUPERVIL, Deceased v. ALLIANCE HEALTH OPERATIONS, LCC, d/b/a LINDEN CENTER FOR NURSING AND REHABILITATION, and JOHN AND JANE DOES 1-10
20-CV-4042 (PKC) (PK)
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
February 2, 2021
PAMELA K. CHEN, United States District Judge
Case 1:20-cv-04042-PKC-PK Document 20 Filed 02/02/21 PageID #: 1607
PAMELA K. CHEN, United States District Judge:
This case arises from the death of Plaintiff‘s father, who passed away after contracting COVID-19 while residing at a nursing home in Brooklyn, New York. Plaintiff filed suit in state court against the nursing home and unnamed health care professionals working at the facility, asserting various state-law claims for negligence, gross negligence, wrongful death, malpractice, and violation of New York Public Health Law. Defendants removed the matter to this Court on two alleged, independent grounds: (1) that there is federal-question jurisdiction; and (2) that Defendants are federal officers entitled to a federal forum. Plaintiff presently moves to remand. Because this case presents no question of federal law that confers jurisdiction on the Court, and because Defendants cannot be considered federal officers, the Court grants the motion to remand.
BACKGROUND
I. Case Background
Plaintiff is the proposed administrator of his father‘s estate. (Complaint, Dkt. 1-1,
Following his father‘s death, Plaintiff filed this suit in the Supreme Court of New York, Kings County, on May 26, 2020. The crux of Plaintiff‘s complaint is that the Linden Center and health care professionals working at the facility (collectively, “Defendants”) failed to take precautions to prevent the spread of COVID-19, which ultimately caused the death of Plaintiff‘s father. (Id. ¶ 35.) In particular, Defendants allegedly “failed to appropriate[ly] separate residents in accordance with local, state and federal guidance”; “failed to enforce social distancing among residents”; “failed to enforce social distancing among staff”; “failed to cancel all group activities and communal dining”; “failed to timely restrict all visitors”; “failed to ensure appropriate staffing levels”; “failed to ensure all residence [sic] wear a cloth face covering”; “failed to ensure all health care professionals were provided a facemask or cloth covering while in the facility”; “failed to ensure all health care professionals wore a facemask or cloth covering while in the facility”; “failed to adequately screen volunteers and non-essential healthcare personnel prior to allowing their entrance into the facility”; “failed to actively screen everyone entering the building for fever and symptoms of COVID-19”; and “failed to monitor local, state and federal health guidance on the coronavirus for maintaining the safety of its residents.” (Id. ¶¶ 110–21; see also id. 134–45, 158–69.) The Complaint alleges various state-law claims of negligence, gross negligence, wrongful death, medical and nursing malpractice, and violation of New York Public Health Law. (Id. 57–197.)
On August 31, 2020, Defendants filed a Notice of Removal, asserting two independent grounds for removal. (See Notice of Removal, Dkt. 1.) First, Defendants argue that the case is removable under
II. PREP Act
The PREP Act generally provides that
a covered person shall be immune from suit and liability under Federal and State law with respect to all claims for loss caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure if a declaration [by the Secretary of Health and Human Services] has been issued with respect to such countermeasure.
A “covered countermeasure” under the PREP Act is defined as “a qualified pandemic or epidemic product”; “a security countermeasure”; a “drug..., biological product..., or device ... that is authorized for emergency use in accordance with section 564, 564A, or 564B of the Federal Food, Drug, and Cosmetic Act [i.e., FDCA]”; or “a respiratory protective device that is approved by the National Institute for Occupational Safety and Health [i.e., NIOSH], and that the Secretary determines to be a priority for use during a public health emergency declared under section 247d of this title.”
- a product manufactured, used, designed, developed, modified, licensed, or procured (I) to diagnose, mitigate, prevent, treat, or cure a pandemic or epidemic; or (II) to limit the harm such pandemic or epidemic might otherwise cause;
- a product manufactured, used, designed, developed, modified, licensed, or procured to diagnose, mitigate, prevent, treat, or cure a serious or life-threatening disease or condition caused by a product described in clause (i); or
- a product or technology intended to enhance the use or effect of a drug, biological product, or device described in clause (i) or (ii)[.]
(i)(I) the Secretary determines to be a priority . . . to diagnose, mitigate, prevent, or treat harm from any biological, chemical, radiological, or nuclear agent identified as a material threat [by the Secretary of Homeland Security], or to diagnose, mitigate, prevent, or treat harm from a condition that may result in adverse health consequences or death and may be caused by administering a drug, biological product, or device against such an agent; (II) the Secretary determines ... to be a necessary countermeasure; and (III) (aa) is approved or cleared under [the FDCA] or licensed under [the PHSA]; or (bb) is a countermeasure for which the Secretary
determines that sufficient and satisfactory clinical experience or research data (including data, if available, from pre-clinical and clinical trials) support a reasonable conclusion that the countermeasure will qualify for approval or licensing within 10 years after the date of a determination [that procurement of the countermeasure is appropriate]; or
(ii) is authorized for emergency use under section 564 of the [FDCA].
(1) recognized in the official National Formulary, or the United States Pharmacopeia, or any supplement to them, (2) intended for use in the diagnosis of disease or other conditions, or in the cure, mitigation, treatment, or prevention of disease, in man or other animals, or (3) intended to affect the structure or any function of the body of man or other animals, and
which does not achieve its primary intended purposes through chemical action within or on the body of man or other animals and which is not dependent upon being metabolized for the achievement of its primary intended purposes.
In accordance with the various terms of the PREP Act, the Secretary‘s March 2020 Declaration under the Act specifically defines a “covered countermeasure” as
any antiviral, any other drug, any biologic, any diagnostic, any other device, or any vaccine, used to treat, diagnose, cure, prevent, or mitigate COVID-19, or the transmission of SARS-CoV-2 or a virus mutating therefrom, or any device used in the administration of any such product, and all components and constituent materials of any such product.
Declaration, 85 Fed. Reg. at 15,202. This definition, however, has been expanded several times since March 2020. See First Amended Declaration, 85 Fed. Reg. at 21,013–14 (amending the definition of covered countermeasure, in accordance with the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act, to include “any respiratory protective device” approved by NIOSH); Second Amended Declaration, 85 Fed. Reg. at 35,102 (amending the definition of covered countermeasure to explicitly include products that “limit the harm that COVID-19 might otherwise cause”). Recently, in December 2020, the definition of covered countermeasure was amended “to make explicit that [it] covers all qualified pandemic and epidemic products under the PREP Act.” Fourth Amended Declaration, 85 Fed. Reg. at 79,193. Under the December 2020 amended Declaration, a covered countermeasure is
- Any antiviral, any drug, any biologic, any diagnostic, any other device, any respiratory protective device, or any vaccine manufactured, used, designed, developed, modified, licensed, or procured: (i) [t]o diagnose, mitigate, prevent, treat, or cure COVID-19, or the transmission of SARS-CoV-2 or a virus mutating therefrom; or (ii) to limit the harm that COVID-19, or the transmission of SARS-CoV-2 or a virus mutating therefrom, might otherwise cause;
- a product manufactured, used, designed, developed, modified, licensed, or procured to diagnose, mitigate, prevent, treat, or cure a serious or life-threatening disease or condition caused by a product described in paragraph (a) above;
- a product or technology intended to enhance the use or effect of a product
described in paragraph (a) or (b) above; or - any device used in the administration of any such product, and all components and constituent materials of any such product.
Id. at 79,196. Yet, the Secretary has consistently made clear that “[t]o be a Covered Countermeasure under the Declaration, a product must also meet [the] definition of ‘Covered Countermeasure’ as set forth in
Given that liability immunity under the PREP Act applies only to claims for loss “caused by, arising out of, relating to, or resulting from the administration to or use by an individual of a covered countermeasure,”
The definition of “administration” extends only to physical provision of a countermeasure to a recipient, such as vaccination or handing drugs to patients, and to activities related to management and operation of programs and locations for providing countermeasures to recipients, such as decisions and actions involving security and queuing, but only insofar as those activities directly relate to the countermeasure activities. Claims for which Covered Persons are provided immunity under the Act are losses caused by, arising out of, relating to, or resulting from the administration to or use by an individual of a Covered Countermeasure consistent with the terms of a Declaration issued under the Act. Under the definition, these liability claims are precluded if they allege an injury caused by a countermeasure, or if the claims are due to manufacture, delivery, distribution, dispensing, or management and operation of countermeasure programs at distribution and dispensing sites.
Thus, it is the Secretary‘s interpretation that, when a Declaration is in effect, the Act precludes, for example, liability claims alleging negligence by a manufacturer in creating a vaccine, or negligence by a health care provider in prescribing the wrong dose, absent willful misconduct. Likewise, the Act precludes a liability claim relating to the management and operation of a countermeasure distribution program or site, such as a slip-and-fall injury or vehicle collision by a recipient receiving a countermeasure at a retail store serving as an administration or dispensing location that alleges, for example, lax security or chaotic crowd control. However, a liability claim alleging an injury occurring at the site that was not directly related to the countermeasure activities is not covered, such as a slip and fall with no direct connection to the countermeasure‘s administration or use. In each case, whether
Id. at 15,200.
In December 2020, the Secretary amended the Declaration “to make explicit that there can be situations where not administering a covered countermeasure to a particular individual can fall within the PREP Act” and the liability protections it affords. Fourth Amended Declaration, 85 Fed. Reg. at 79,194. Accordingly, “[w]here there are limited Covered Countermeasures, not administering a Covered Countermeasure to one individual in order to administer it to another individual can constitute ‘relating to . . . the administration to . . . an individual’ under [the PREP Act].” Id. at 79,197. In other words, “[p]rioritization or purposeful allocation of a Covered Countermeasure, particularly if done in accordance with a public health authority‘s directive, can fall within the PREP Act” and its liability protections. Id. The Fourth Amended Declaration specifically contemplates a situation where there is a limited number of COVID-19 vaccines and a covered person under the Act chooses not to administer vaccines to those in less vulnerable populations so that those in more vulnerable populations may be vaccinated. See id.
A “covered person” under the Act includes:
(A) the United States; or (B) a person or entity that is (i) a manufacturer of [a covered] countermeasure; (ii) a distributor of such countermeasure; (iii) a program planner of such countermeasure; (iv) a qualified person who prescribed, administered, or dispensed such countermeasure; or (v) an official, agent, or employee of a person or entity described in clauses (i), (ii), (iii), or (iv).
a State or local government, including an Indian tribe, a person employed by the State or local government, or other person who supervised or administered a program with respect to the administration, dispensing, distribution, provision, or use of a security countermeasure or a qualified pandemic or epidemic product, including a person who has established requirements, provided policy guidance, or supplied technical or scientific advice or assistance or provides a facility to administer or use a covered countermeasure in accordance with a declaration [issued by the Secretary].
any individual or organization can potentially be a program planner and receive PREP Act coverage. So for example, private businesses, public and private transportation providers, public and private schools, and religious organizations are all eligible for PREP Act coverage when they act in accordance with the PREP Act and the Declaration.
(Advisory Opinion 20-04, Dkt. 16, at 3.) Moreover, HHS‘s Office of the General Counsel has issued at least one opinion
When the PREP Act applies, it provides broad immunity “from suit and liability under Federal and State law,”
The PREP Act also includes a provision expressly preempting state laws that conflict with the terms of the Act:
During the effective period of a declaration [by the Secretary], or at any time with respect to conduct undertaken in accordance with such declaration, no State or political subdivision of a State may establish, enforce, or continue in effect with respect to a covered countermeasure any provision of law or legal requirement that—
(A) is different from, or is in conflict with, any requirement applicable under this section; and
(B) relates to the design, development, clinical testing or investigation, formulation, manufacture, distribution, sale, donation, purchase, marketing, promotion, packaging, labeling, licensing, use, any other aspect of safety or efficacy, or the prescribing, dispensing, or administration by qualified persons of the covered countermeasure, or to any matter included in a requirement applicable to the covered countermeasure under this section or any other provision of this chapter, or under the [FDCA].
In sum, the PREP Act—with one limited exception for “willful misconduct”—provides covered persons with immunity from suit for all claims of loss caused by, arising out of, relating to, or resulting from the administration to or use by an individual of covered countermeasures, which include certain drugs, biological products, and devices. Covered persons broadly include individuals as well as private and public entities, and the administration of a covered countermeasure can include “purposeful allocation” of the countermeasure, including decisions not to provide a countermeasure to an individual. The Act expressly preempts conflicting state laws and, in the view of the Secretary, implicates “substantial” federal legal and policy interests.
DISCUSSION
I. Removal under 28 U.S.C. § 1441(a)
Under
Defendants assert that federal question jurisdiction exists in this case under
686 F.3d 133, 138 (2d Cir. 2012) (citing Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987)); see also Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152 (1908) (“[A] suit arises under the Constitution and laws of the United States only when the plaintiff‘s statement of his own cause of action shows that it is based upon those laws or that Constitution.”). Indeed, “since 1887 it has been settled law that a case may not be removed to federal
Here, Plaintiff‘s Complaint pleads no federal claim on its face. Rather, the Complaint alleges claims of common-law negligence, gross negligence, wrongful death, and medical and nursing malpractice, as well as violation of New York Public Health Law. (See Complaint, Dkt. 1-1, ¶¶ 57–197.) Even if some of these claims implicate or are preempted by federal law by way of an affirmative defense, such defenses do not appear on the face of the well-pleaded complaint, and accordingly do not authorize removal to federal court. See Metro. Life, 481 U.S. at 63; Franchise Tax Bd., 463 U.S. at 14; Gully, 299 U.S. at 116; see also Marcus v. AT&T Corp., 138 F.3d 46, 52 (2d Cir. 1998) (“Generally, a complaint that pleads only state law causes of action may not be removed to federal court even where Congress has chosen to regulate the entire field of law in the area in question.”).
There are, however, two exceptions to the well-pleaded complaint rule: (1) when a claim, though pleaded as a state-law claim, “is ‘really’ one of federal law”; and (2) when “some substantial, disputed question of federal law is a necessary element” of a well-pleaded state-law claim. Franchise Tax Bd., 463 U.S. at 13. Defendants argue that one or both exceptions apply here. (See Defendants’ Opposition to Motion to Remand (“Defs.’ Opp.”), Dkt. 13, at 8–21.) The Court disagrees.
A. None of Plaintiff‘s Claims Are “Really” One of Federal Law
1. The PREP Act Does Not Establish Complete Preemption
As already explained, the well-pleaded complaint rule prohibits parties from manufacturing federal jurisdiction by way of a federal affirmative defense. The “corollary” to this rule is that “a plaintiff may not defeat federal subject-matter jurisdiction by ‘artfully pleading’ his complaint as if it arises under state law where the plaintiff‘s suit is, in essence, based on federal law.” Sullivan v. Am. Airlines, Inc., 424 F.3d 267, 271 (2d Cir. 2005) (citing, inter alia, Rivet v. Regions Bank of La., 522 U.S. 470, 475–76 (1998)). “The artful pleading rule applies when Congress has either (1) so completely preempted, or entirely substituted, a federal law cause of action for a state one that plaintiff cannot avoid removal by declining to plead necessary federal questions, or (2) expressly provided for the removal of particular actions asserting state law claims in state court.” Romano v. Kazacos, 609 F.3d 512, 519 (2d Cir. 2010) (internal citations and quotations omitted). The second situation is plainly inapplicable here; no one argues that the PREP Act, or other act of Congress, expressly provides for removal of any of Plaintiff‘s claims. Cf. Beneficial Nat‘l Bank v. Anderson, 539 U.S. 1, 6 (2003) (observing that the Price-Anderson Act “not only gives federal courts jurisdiction over tort actions arising out of nuclear accidents but also expressly provides for removal of such actions brought in state court even when they assert only state-law claims” (citing El Paso Nat. Gas Co. v. Neztsosie, 526 U.S. 473, 484–85 (1999))). The question, then, is whether, as Defendants argue (see Defs. Opp., Dkt. 13, at 10–16), the PREP Act “completely” preempts Plaintiff‘s claims.
The doctrine of complete preemption “must be distinguished from ordinary preemption, also known as defensive preemption.” Sullivan, 424 F.3d at 272 (citation omitted). “Ordinary defensive preemption comes in three familiar forms: express preemption, conflict preemption, and field preemption,” id. at 273 (citations omitted), and these forms of preemption plainly are subject to well-pleaded complaint rule, see Franchise Tax Bd., 463 U.S. at 14. Complete preemption, on the other hand, occurs where “the pre-emptive force of a statute is so ‘extraordinary’ that it ‘converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.‘” Caterpillar Inc. v. Williams, 482 U.S. 386, 393 (1987) (quoting Metro. Life, 481 U.S. at 65). The Supreme Court has recognized only three statutory provisions as having such extraordinary preemptive force: (1) Section 301 of the Labor-Management Relations Act (“LMRA”),
Here, the PREP Act does not provide the exclusive cause of action for claims that fall within its scope; in fact, for the most part, the Act provides no causes of action at all. As the Second Circuit explained in Sullivan, a federal statute that provides an exclusive cause of action for an asserted state-law claim “gives rise to original federal jurisdiction, and as a consequence allows removal under
The same is true of the PREP Act. As an initial matter, it is important to note that the PREP Act is, at its core, an immunity statute; it does not create rights, duties, or obligations. See
Defendants’ arguments do not compel a different conclusion. These arguments are all in the same vein: Congress intended to “provide only federally directed remedies” for claims under the PREP Act. (Defs.’ Opp., Dkt. 13, at 12–13.) Such arguments, however, confuse complete preemption with field preemption, which are distinct concepts. See Sullivan, 424 F.3d at 273 n.7 (noting that although “[s]ome commentators seem to equate the defense of field preemption...with the doctrine of complete preemption,” the two are “better considered distinct”). Under field preemption, “state law is pre-empted where it regulates conduct in a field that Congress intended the Federal Government to occupy exclusively.” English v. Gen. Elec. Co.,
496 U.S. 72, 79 (1990). Complete preemption, on the other hand, “operates to create federal subject-matter jurisdiction.” Sullivan, 424 F.3d at 272 n.5. Importantly, only complete preemption provides a basis for removal; returning to the well-pleaded complaint rule, an action may not be removed simply because the defendant can raise the defense of field preemption. See id. at 273 (citing Caterpillar, 482 U.S. at 393; Franchise Tax Bd., 463 U.S. at 14); Marcus, 138 F.3d at 52 (“Generally, a complaint that pleads only state law causes of action may not be removed to federal court even where Congress has chosen to regulate the entire field of law in the area in question.”); see also Visina v. Wedge Cmty. Co-op, Inc., No. 07-CV-122 (DSD) (SRN), 2007 WL 2908043, at *7 (D. Minn. Oct. 1, 2007) (“[R]emoval based on
Defendants also point to a recent January 8, 2021 Advisory Opinion by HHS‘s Office of the General Counsel, which opines that the PREP Act “is a ‘complete preemption’ statute” because it establishes “a federal cause of action, administrative or judicial, as the only viable claim.” (Advisory Opinion 21-01, Dkt. 17-1, at 2 (emphasis added).) In other words, according to the Advisory Opinion, a statute provides an exclusive federal cause of action for purposes of complete preemption even if “the exclusive initial venue is a federal administrative agency.” (See id.) Although the Secretary‘s Declaration under the PREP Act “must be construed in accordance with the Advisory Opinions of the Office of the General Counsel,” Fourth Amended Declaration, 85 Fed. Reg. 79,194–95, the Advisory Opinion here expressly states that it “does not have the force or effect of law” (Advisory Opinion 21-01, Dkt. 17-1, at 5). Thus, even assuming that Congress intended to delegate authority to the Secretary and HHS‘s Office of the General Counsel “generally to make rules carrying the force of law,” the Office of the General Counsel interpretation relied
upon by Defendants here explicitly was not “promulgated in the exercise of that authority” and is not entitled to Chevron deference. See United States v. Mead Corp., 533 U.S. 218, 226–27 (2001) (deciding that no Chevron deference is due where an agency‘s rule or opinion was not “promulgated in the exercise of” any delegated congressional authority).
Moreover, the Court finds that the interpretation lacks the “power to persuade.” Cf. id. at 235 (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)); Faber v. Metro. Life Ins. Co., 648 F.3d 98, 105–06 (2d Cir. 2011) (“Agency interpretations in opinion letters are ‘entitled to respect’ to the extent they have the ‘power to persuade.‘” (quoting Christensen v. Harris County, 529 U.S. 576, 587 (2000))). The Advisory Opinion cites no cases for its proposition that an exclusive federal administrative remedy is sufficient for complete preemption. (See Advisory Opinion 21-01, Dkt. 17-1, at 2.) And in fact, the Second Circuit has indicated just the opposite. In arriving at its holding in Sullivan, the Second Circuit analyzed so-called “Garmon preemption,” which commits claims arising under Sections 7 and 8 of the National Labor Relations Act (“NLRA”) exclusively to the National Labor Relations Board (“NLRB”) in the first instance. Sullivan, 424 F.3d at 277 (citing San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 244–47 (1959)). Thus, under Garmon preemption, the exclusive initial venue for claims under Sections 7 and 8 of the NLRA is a federal administrative agency. Garmon, 359 U.S. at 244–45. Yet, the Second Circuit observed in Sullivan that “lower courts have uniformly held that defendants may not remove state claims to federal court by alleging Garmon preemption.” Sullivan, 424 F.3d at 277 (quoting TKO Fleet Enters., Inc. v. Dist. 15, Int‘l Ass‘n of Machinists & Aerospace Workers, 72 F. Supp. 2d 83, 87 (E.D.N.Y. 1999) (collecting cases)); see also Isufi v. Prometal Constr., Inc., 927 F. Supp. 2d 50, 58 (E.D.N.Y. 2013) (“It would be ‘internally inconsistent’ to assert that a district court has jurisdiction for the purpose of removal but that the court must then dismiss the
action because the statute confers primary jurisdiction
Finally, Defendants point to a recent filing by the United States Attorney‘s Office for the Middle District of Tennessee in a similar case to this one, also involving a nursing home. (Dkt. 18 (attaching Statement of Interest of the United States, Bolton v. Gallatin Ctr. for Rehab. & Healing, LLC, No. 20-CV-683 (M.D. Tenn. Jan. 19, 2021), ECF No. 35-1.) That filing highlights the Second Circuit‘s decision in In re WTC Disaster Site, 414 F.3d 352 (2d Cir. 2003), and argues that the ATSSSA, which the Second Circuit determined was a complete preemption statute, “is structurally similar to the PREP Act.” (Dkt. 18-1, at 5; see also id. at 9–10.) The Court, however, disagrees with the government‘s position in Bolton and its comparison of the PREP Act to the ATSSSA. True, similar to the PREP Act, the ATSSSA created an administrative “Victim Compensation Fund” to provide relief for injuries resulting from the September 11, 2001 aircraft hijackings and crashes. In re WTC Disaster Site, 414 F.3d at 373–74 (quoting ATSSSA, § 405(c)). But, crucially, the ATSSSA also created an alternative, exclusive federal cause of action for claims “arising out” of the plane hijackings and crashes:
There shall exist a Federal cause of action for damages arising out of the hijacking and subsequent crashes of American Airlines flights 11 and 77, and United Airlines flights 93 and 175, on September 11, 2001. . . . [T]his cause of action shall be the exclusive remedy for damages arising out of the hijacking and subsequent crashes of such flights.
Id. at 374 (emphasis added) (quoting
In sum, Defendants cite no authority that compels the conclusion that the PREP Act completely preempts state-law claims within its scope such that those claims are really federal-law claims that are removable to federal court.3
2. Plaintiff‘s Claims Are Not Within the PREP Act‘s Scope
Even if, however, the PREP Act does completely preempt state-law claims within its scope, Plaintiff‘s claims are not such claims. By its plain terms, the PREP
The Court is far from alone in reaching this conclusion. In fact, there is a growing consensus among courts across the country that state-law claims of negligence and wrongful death brought against a nursing home for failure to protect against the spread of COVID-19, like those that Plaintiff alleges, are not properly characterized as federal-law claims under the PREP Act. See Anson v. HCP Prairie Vill. KS OpCo LLC, No. 20-CV-2346 (DDC) (JPO), 2021 WL 308156, at *9-11 (D. Kan. Jan. 29, 2021); Estate of Smith ex rel. Smith v. The Bristol at Tampa Bay Rehab. & Nursing Ctr., No. 20-CV-2798 (T) (60SPF), 2021 WL 100376, at *1-2 (M.D. Fla. Jan. 12, 2021); Gunter v. CCRC OPCO-Freedom Square, LLC, No. 20-CV-1546, 2020 U.S. Dist. LEXIS 201622, at *9-15 (M.D. Fla. Oct. 29, 2020); Sherod v. Comprehensive Healthcare Mgmt. Servs., LLC, No. 20-CV-1198, 2020 WL 6140474, at *7-8 (W.D. Pa. Oct. 16, 2020); Saldana v. Glenhaven Healthcare LLC, No. 20-CV-5631 (FMO) (MAA), 2020 WL 6713995, at *2 (C.D. Cal. Oct. 14, 2020); Martin v. Serrano Post Acute LLC, No. 20-CV-5937 (DSF) (SK), 2020 WL 5422949, at *2 (C.D. Cal. Sept. 10, 2020); Brown v. Big Blue Healthcare, Inc., No. 20-CV-2261 (HLT) (JPO), — F. Supp. 3d —, 2020 WL 4815078, at *3-8 (D. Kan. Aug. 19, 2020);4 Estate of Maglioli v. Andover Subacute Rehab. Ctr. I, No. 20-CV-6605/6985 (KM) (ESK), — F. Supp. 3d —, 2020 WL 4671091, at *4-11 (D.N.J. Aug. 12, 2020). The Court agrees with the consensus among district courts across the country that state-law claims of negligence and wrongful death like those that Plaintiff alleges here are not federal-law claims under the PREP Act.
Defendants resist this conclusion by arguing that the “entire premise” of Plaintiff‘s lawsuit is that “whatever countermeasures that were administered and utilized by [Defendants] were inadequate,” and thus, Plaintiff “directly invokes” the administration and use of covered countermeasures under the PREP Act. (Defs.’ Opp., Dkt. 13, at 19.) Defendants relatedly argue that Plaintiff‘s alleged injury—his father‘s death—“is clearly related to the use” of covered countermeasures, because Defendants used personal protective equipment (“PPE“) such as rubber gloves and N95 masks to prevent transmission of the virus, screened visitors and staff with FDA-approved thermometers, and treated presumed and established cases of COVID-19 with FDA-approved medications like Tylenol and IV fluids. (Id.) These arguments are unavailing.
First, the Court disagrees with Defendants that the premise, much less the “entire” premise, of Plaintiff‘s claims is that Defendants’ administration or use of covered countermeasures was inadequate. As already discussed, the crux of Plaintiff‘s claims is that failures such as not cancelling group activities, not timely restricting visitors, not enforcing social distancing and mask-wearing, and not ensuring adequate staffing levels caused his father‘s death. (See, e.g., Complaint, Dkt. 1-1, ¶¶ 110-21). These alleged failures do not involve administering, or even purposefully allocating, “covered countermeasures,” which the plain terms of the PREP Act define as certain drugs, biological products, and devices. See
Second, to the extent that Defendants argue that Plaintiff‘s claims implicate or are “inextricably intertwined” with Defendant‘s use of covered countermeasures, the Court agrees with another district court that rejected the same argument:
Suffice it to say that the Court is not convinced that a facility using covered countermeasures somewhere in the facility is sufficient to invoke the PREP Act as to all claims that arise in that facility. The PREP Act still requires a causal connection between the injury and the use or administration of covered countermeasures, and that link is not present under Defendants’ interpretation.
Brown, 2020 WL 4815078, at *7 (internal footnotes omitted). Indeed, even if Plaintiff could have brought claims that fall under the PREP Act given the alleged actions or inactions of Defendants, Plaintiff‘s actual claims facially rest on an alleged duty arising from or related to proper standards of general medical and nursing care, not the administration or use of certain drugs, biological products, or devices, i.e., the countermeasures covered under the PREP Act. (See Complaint, Dkt. 1-1, ¶¶ 57-197.) Accordingly, even if the PREP Act established complete preemption with respect to certain claims, Plaintiff‘s claims do not come within its scope such that his claims would be completely preempted. Cf. Aetna Health Inc. v. Davila, 542 U.S. 200, 210 (2004) (holding, in the separate context of complete preemption under
In sum, Plaintiff‘s claims are not completely preempted by the PREP Act. The PREP Act does not provide an exclusive federal cause of action for claims that come within its scope—but even if it did, Plaintiff‘s claims are not such claims. To be clear, the Court makes no decision as to whether Plaintiff‘s claims are barred by the PREP Act under principles of ordinary defensive preemption, or otherwise. That issue is for the state court to decide. See Sullivan, 424 F.3d at 277-78 (“[W]e have no occasion to consider the merits of [defendant‘s] argument that the plaintiffs’ [state-law claims] are subject to ordinary preemption. [Defendant] is free to make this argument in state court and, ultimately, to seek federal-court review by petitioning the Supreme Court for certiorari if [it] loses in the state courts.“); see also Martin, 2020 WL 5422949, at *2 (“If Defendants believe that some or all of Plaintiffs’ state law claims are barred by the PREP Act, the appropriate response is to file a demurrer in state court.“).
B. None of Plaintiff‘s Claims Necessarily Raise a Substantial, Disputed Federal Question
Even where a plaintiff‘s case contains only proper, well-pleaded state-law claims, “in certain cases federal-question jurisdiction will lie over state-law claims that implicate significant federal issues.” Grable & Sons Metal Prods., Inc. v. Darue Eng‘g & Mfg., 545 U.S. 308, 312 (2005) (citation omitted). This exception to the well-pleaded complaint rule applies to “a special and small category of cases,” where “a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress.” Gunn v. Minton, 568 U.S. 251, 258 (2013) (internal quotation marks and citations omitted); accord New York ex rel. Jacobson v. Wells Fargo Nat‘l Bank, N.A., 824 F.3d 308, 315 (2d Cir. 2016). If any of the four requirements is not satisfied, the exception does not apply. See Gunn, 568 U.S. at 258; Jacobson, 824 F.3d at 315.
Here, none of Plaintiff‘s claims “necessarily” raise a federal issue. “A state-law claim ‘necessarily’ raises federal questions when the claim is affirmatively ‘premised’ on a violation of federal law.” Jacobson, 824 F.3d at 315 (quoting Grable, 545 U.S. at 314); see also Franchise Tax Bd., 463 U.S. at 13 (observing that original federal jurisdiction may lie where “it appears that some substantial, disputed question of federal law is a necessary element of one of the well-pleaded state claims“). As the Complaint establishes, none of Plaintiff‘s various claims of negligence, gross negligence, wrongful death, malpractice, or violation of New York Public Health Law are affirmatively premised on the PREP Act, nor is the PREP Act an essential element of any of Plaintiff‘s claims. (See Complaint, Dkt. 1-1, ¶¶ 57-197.) Defendants argue that “[P]laintiff‘s causes of action sounding in state tort law ‘necessarily’ raise[] the issue of whether [Defendants] were acting under and were accordingly afforded immunity under the PREP Act.” (Defs.’ Opp., Dkt. 13, at 9.) But this only shows that Defendants may have an affirmative defense to Plaintiff‘s claims, not that Plaintiff‘s claims are affirmatively premised on, or on their face necessarily require resolution of, the PREP Act. As previously discussed, it is well-settled law that “a case may not be removed to federal court on the basis of a federal defense, including the defense of preemption, even if the defense is anticipated in the plaintiff‘s complaint, and even if both parties admit that the defense is the only question truly at issue in the case.” Franchise Tax Bd., 463 U.S. at 14; see also Caterpillar, 482 U.S. at 399 (“[A] defendant cannot, merely by injecting a federal question into an action that asserts what is plainly a state-law claim, transform the action into one arising under federal law, thereby selecting the forum in which the claim shall be litigated. If a defendant could do so, the plaintiff would be master of nothing.” (internal citations omitted)).
The recent Advisory Opinion, previously discussed, opining that the Secretary‘s Fourth Amended Declaration supports the Grable doctrine is unpersuasive.5 (See Advisory Opinion 21-01, Dkt. 17-1, at 4-5 (opining, inter alia, that the Secretary‘s determination that the Act implicates a “substantial” federal question “provides the underlying basis for invoking the Grable doctrine“).) The Advisory Opinion‘s only guidance on the “necessarily raised” factor is a selective (mis)quotation from Grable: “Thus, a substantial federal question is implicated, for example, where ‘the interpretation of a federal statute [] actually is in dispute in the litigation and is so important that it sensibly belongs in federal court.‘” (Id. at 4-5 (alteration in original) (quoting Grable, 545 U.S. at 315)).6 The plaintiff in Grable, however, “premised its superior title claim [i.e., its well-pleaded state-law claim] on a failure by the IRS to give it adequate
is thus unhelpful. It, moreover, takes the incredible position that once Grable is invoked, “the court retains the case to decide whether the immunity and preemption provisions apply; if they do not apply, then the court would try the case as it would a diversity case” (Dkt. 17-1, at 5), presumably even if the parties, as here, are not diverse. The Court declines to accept this effective rewriting of diversity jurisdiction under
* * *
Accordingly, the Court does not have subject-matter jurisdiction over Plaintiff‘s state-law claims under
II. Removal under 28 U.S.C. § 1442(a)(1)
Under
A “person” within the meaning of the federal-officer removal statute “includes corporate persons.” Id. at 136. The phrase “acting under,” moreover, is “to be interpreted broadly,” and unlike the general removal statute, the federal-officer removal statute “must be liberally construed.” See id. (citations omitted).
Nonetheless, the Supreme Court has made clear that when a private person is “acting under” a federal officer, such action “must involve an effort to assist, or to help carry out, the duties or tasks of the federal superior.” Watson v. Philip Morris Cos., 551 U.S. 142, 152 (2007) (citing Davis v. South Carolina, 107 U.S. 597, 600 (1883)). “[T]he help or assistance necessary to bring a private person within the scope of the statute does not include simply complying with the law.” Id. Indeed, even “a highly regulated” private entity “cannot find a statutory basis for removal in the fact of federal regulation alone.” Id. at 153. This holds true “even if the regulation is highly detailed and even if the private [entity‘s] activities are highly supervised and monitored.” Id. Instead, “there must exist a ‘special relationship’ between” the federal and private entities. Isaacson, 517 F.3d at 137 (quoting Watson, 551 U.S. at 157). For example, such a special relationship exists with respect to “a private contractor supplying the Government with a product it needed during war—‘a product that, in the absence of Defendants, the Government would have had to produce itself.‘” Gordon v. Air & Liquid Sys. Corp., 990 F. Supp. 2d 311, 317 (E.D.N.Y. 2014) (quoting Isaacson, 517 F.3d at 137); see also Hicksville Water Dist. v. Jerry Spiegel Assocs., Inc., No. 19-CV-6070 (PKC) (SMG), 2020 WL 3129162, at *4 (E.D.N.Y. June 12, 2020) (finding that a government sub-contractor who was under contract “to research and develop nuclear material,” and whose work was “closely controlled and supervised [by the government],” was a person “acting under” a federal officer). On the other hand, a health center that receives federal grants and that “is subject to a host of federal requirements and regulations pertaining to the health services it provides, and the manner in which it expends its funds,” is not “acting under” a federal officer within the meaning of the statute. See Veneruso v. Mount Vernon Neighborhood Health Ctr., 586 F. App‘x 604, 607-08 (2d Cir. 2014) (summary order).
Defendants have not demonstrated that they are persons “acting under” a federal officer. Defendants assert that they were “acting under specific federal instructions/regulations since the [CMS] and the [CDC] specifically compelled healthcare providers and nursing homes to respond to the COVID-19 pandemic.” (Notice of Removal, Dkt. 1, ¶ 13; see also Defs.’ Opp., Dkt. 13, at 21-24.) Defendants point out that they “had no independent decision making ability” in terms of following CDC regulations as directed by the New York State Department of Health. (Defs.’ Opp., Dkt. 13, at 22.) But these assertions do not evince a “special relationship” with the federal government or otherwise show that Defendants were anything more than “highly regulated” private persons or entities complying with federal laws and regulations. See Watson, 551 U.S. at 152-53; see also Veneruso, 586 F. App‘x at 607-08. Indeed, as the United States District Court for the District of New Jersey recently observed in a case like this one, brought against owners and operators of private nursing facilities:
Defendants’ line of reasoning would have very far-reaching consequences. Consider, for example, that during this pandemic many private persons or entities have received federal funds under the CARES act and its Paycheck Protection Program (“PPP“), and may point to their dutiful compliance with CDC guidelines for limiting occupancy, face coverings, and health and sterilization measures. Small and large entities alike, including nonprofits, restaurants, vineyards, construction companies, and religious organizations, have accepted such funding, all while attempting to implement measures to curb the spread of COVID-19. Under Defendants’ line of
reasoning, all of these entities would be acting under a federal officer for purposes of [ 28 U.S.C.] § 1442(a)(1) .
Estate of Maglioli, 2020 WL 4671091, at *13 (internal citations omitted). This Court, like the District of New Jersey and every other federal court to have examined the issue, agrees that the federal-officer statute cannot be read as broadly as Defendants would like it to be. See id.; see also Saldana, 2020 WL 6713995, at *3; Martin, 2020 WL 5422949, at *1.
Accordingly, the Court finds that Defendants are not persons “acting under” a federal officer, and do not otherwise qualify for federal-officer removal. Removal under
CONCLUSION
Plaintiff‘s motion to remand is granted. This case is remanded to the Supreme Court of New York, Kings County, under Index No. 507780/2020, as the Court lacks subject-matter jurisdiction and Defendants do not qualify for federal-officer removal.
SO ORDERED.
/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: February 2, 2021
Brooklyn, New York
Notes
Grable, 545 U.S. at 315.Whether Grable was given notice within the meaning of the federal statute is thus an essential element of its quiet title claim, and the meaning of the federal statute is actually in dispute; it appears to be the only legal or factual issue contested in the case. The meaning of the federal tax provision is an important issue of federal law that sensibly belongs in a federal court.