LAURA HUDAK, Executrix of the Estate of William P. Koballa, deceased v. ELMCROFT OF SAGAMORE HILLS; ELMCROFT BY ECLIPSE SENIOR LIVING; ECLIPSE SENIOR LIVING, INC.; ECLIPSE PORTFOLIO OPERATIONS, LLC; ECLIPSE PORTFOLIO OPERATIONS II, LLC; JAMIE ASHLEY COHEN
No. 21-3836
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
January 23, 2023
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). File Name: 23a0012p.06. Appeal from the United States District Court for the Northern District of Ohio at Akron. No. 5:21-cv-00060—Sara E. Lioi, District Judge. Argued: December 7, 2022.
Before: MOORE, GIBBONS, and LARSEN, Circuit Judges.
COUNSEL
ARGUED: Teresa Pike Tomlinson, HALL BOOTH SMITH, P.C., Columbus, Georgia, for Appellants. Adam R. Pulver, PUBLIC CITIZEN LITIGATION GROUP, Washington, D.C., for Appellee. ON BRIEF: Teresa Pike Tomlinson, T. Andrew Graham, HALL BOOTH SMITH, P.C., Columbus, Georgia, Keith K. Hansbrough, MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN, Cleveland, Ohio, for Appellants. Adam R. Pulver, Allison M. Zieve, PUBLIC CITIZEN LITIGATION GROUP, Washington, D.C., Patrick T. Murphy, Christian D. Foisy, DWORKEN & BERNSTEIN CO., L.P.A., Cleveland, Ohio, for Appellee. Jeffrey S. Bucholtz, Alexander Kazam, KING & SPALDING LLP, Washington, D.C., Kyle A. Palazzolo, AMERICAN MEDICAL ASSOCIATION, Chicago, Illinois, for Amici Curiae.
KAREN NELSON MOORE, Circuit Judge. In May 2020, Laura Hudak‘s father, William P. Koballa, died of COVID-19. Hudak, acting as executrix of Koballa‘s estate, sued in state court, asserting negligence and related state-law claims against Elmcroft of Sagamore Hills, an assisted-living facility in Ohio, and several entities that own or operate the facility (collectively, “Elmcroft“), for their alleged failure to take care of her father. Elmcroft removed the case from state court to federal court pursuant to the general removal statute,
I. BACKGROUND
A. Statutory Background
The PREP Act lies at the center of this appeal. “Congress enacted the PREP Act in 2005 ‘[t]o encourage the expeditious development and deployment of medical countermeasures during a public health emergency’ by allowing the [Health and Human Services, or HHS] Secretary ‘to limit legal liability for losses relating to the administration of medical countermeasures such as diagnostics, treatments, and vaccines.‘” Cannon v. Watermark Ret. Cmtys., Inc., 45 F.4th 137, 139 (D.C. Cir. 2022) (quoting KEVIN J. HICKEY, CONG. RSCH. SERV., LSB10443, THE PREP ACT AND COVID-19, PART 1: STATUTORY AUTHORITY TO LIMIT LIABILITY FOR MEDICAL COUNTERMEASURES 1 (Apr. 13, 2022)). The Act grants immunity from federal and state liability to “covered person[s] . . . 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 the HHS Secretary has issued a declaration under the Act “with respect to such countermeasure.”
The PREP Act limits both the reach and effect of its immunity provision. The Act provides immunity only from “any claim for loss that has a causal relationship with the administration to or use by an individual of a covered countermeasure[.]”
The PREP Act creates one exception to its grant of immunity. The Act provides for “an exclusive Federal cause of action against a covered person for death or serious physical injury proximately caused by willful misconduct . . . by such covered person.”
In March 2020, the HHS Secretary declared COVID-19 a public-health emergency under the PREP Act. See Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 85 Fed. Reg. 15,198 (Mar. 17, 2020). The Secretary recommended “the manufacture, testing, development, distribution, administration, and use of the Covered Countermeasures[,]” which included “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[.]” Id. at 15,201–202. The Secretary stated that immunity under the Act would extend through October 1, 2024. Id. at 15,202. Since issuing that initial declaration, the Secretary has amended the declaration several times, including most recently in January 2022. See Tenth Amendment to Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 87 Fed. Reg. 982 (Jan. 7, 2022).
B. Factual and Procedural Background
As alleged in the complaint, Koballa resided with his wife in Elmcroft‘s assisted-care facility in Northfield, Ohio, prior to his death in May 2020. See R. 1-1 (Compl. ¶¶ 3, 12, 34) (Page ID #18–19, 22). In late April 2020, Elmcroft suspended family visitation, required its staff to wear masks and gloves, and instituted other policies in response to the developing COVID-19 pandemic. Id. ¶ 13 (Page ID #19–20). A few days later, on May 4, Koballa started to show signs of sickness. Id. ¶ 15 (Page ID #20). An Elmcroft employee sent an email to Hudak the following day stating that a nurse and a doctor had examined her father and that the doctor believed Koballa was suffering from allergies. Id. ¶¶ 17–18 (Page ID #20). Contrary to that email, however, Koballa had not been seen by either practitioner. Id. Koballa‘s condition continued to deteriorate, and by May 9 he was unable to walk or feed himself. Id. ¶¶ 19–24 (Page ID #20–21). Hudak and her sister, dissatisfied with Elmcroft‘s communications, went to see Koballa in person and “were shocked to observe the physical condition of their father and insisted that he be taken to the hospital.” Id. ¶¶ 27–28 (Page ID #21). When medics arrived at the facility, they observed that Elmcroft employees were not wearing masks. Id. ¶ 29 (Page ID #22). The medics transported Koballa to a hospital, where he tested positive for COVID-19 and died several days later “from hypoxia and COVID Pneumonia.” Id. ¶ 34 (Page ID #22).
Hudak filed a lawsuit in Ohio state court in December 2020, asserting claims under state law for (1) negligence; (2) reckless, intentional, willful, and wanton misconduct; (3) survivorship; (4) wrongful death; and
Shortly after Hudak filed her complaint in state court, Elmcroft removed the case to the District Court for the Northern District of Ohio pursuant to
II. APPELLATE JURISDICTION
At the outset, Hudak challenges our appellate jurisdiction to hear Elmcroft‘s challenge to the district court‘s remand order. Federal law provides as a general rule that “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise[.]”
III. SUBJECT-MATTER JURISDICTION
Turning to Elmcroft‘s challenge, Elmcroft argues that the district court erred in finding that the case could not be removed from state court to federal court under either
A. Standard of Review
“We review de novo the district court‘s determination that it lacked subject-matter jurisdiction and its consequent decision to issue a remand order.” Mays v. City of Flint, 871 F.3d 437, 442 (6th Cir. 2017) (citing Smith v. Nationwide Prop. & Cas. Ins. Co., 505 F.3d 401, 404 (6th Cir. 2007)). “As the party requesting a federal forum,” Elmcroft “bears the burden of establishing federal jurisdiction.” Siding & Insulation Co. v. Acuity Mut. Ins. Co., 754 F.3d 367, 369 (6th Cir. 2014) (citing McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936)).
B. General Removal Under § 1441(a)
Elmcroft first invokes the general removal statute. Pursuant to
1. Complete Preemption
Elmcroft‘s primary argument in support of removal under
Generally, preemption provides a defense, not a basis for removal. See Caterpillar Inc. v. Williams, 482 U.S. 386, 392–93 (1987). Ordinary preemption, for instance, flows from the Supremacy Clause of the United States Constitution and provides only a defense that can be invoked in state or federal court. See Matthews v. Centrus Energy Corp., 15 F.4th 714, 720 (6th Cir. 2021). The “misleadingly named doctrine” of complete preemption, by contrast, refers to a jurisdictional doctrine that is distinct from ordinary preemption. Hogan v. Jacobson, 823 F.3d 872, 879 (6th Cir. 2016) (quoting Hughes v. United Air Lines, Inc., 634 F.3d 391, 393 (7th Cir. 2011)); see also Matthews, 15 F.4th at 720–21 (distinguishing between forms of preemption).
Complete preemption occurs where “the pre-emptive force of a [federal] 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., 482 U.S. at 393 (quoting Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 65 (1987)). “Once an area of state law has been completely pre-empted, any claim purportedly based on that pre-empted state law is considered, from its inception, a federal claim, and therefore arises under federal law.”
The Supreme Court has found only three provisions of federal law to be completely preemptive: § 301 of the Labor Management Relations Act (“LMRA“),
Importantly, a federal statute will completely preempt only those state-law claims that fall within the scope of the federal cause of action. See Davila, 542 U.S. at 210 (holding that
Although our court has not previously considered whether the PREP Act completely preempts state-law claims within its ambit, several federal courts of appeals have addressed the issue in similar cases involving claims against assisted-living facilities and nursing homes during the COVID-19 pandemic. See Maglioli v. All. HC Holdings LLC, 16 F.4th 393, 406–13 (3d Cir. 2021); Mitchell v. Advanced HCS, L.L.C., 28 F.4th 580, 584–88 (5th Cir. 2022); Manyweather v. Woodlawn Manor, Inc., 40 F.4th 237, 242–46 (5th Cir. 2022); Martin v. Petersen Health Operations, LLC, 37 F.4th 1210, 1213–14 (7th Cir. 2022); Saldana v. Glenhaven Healthcare LLC, 27 F.4th 679, 687–88 (9th Cir. 2022). These courts have taken different views as to whether the PREP Act completely preempts any state-law claims, but the courts have all held that the Act does not completely preempt claims, like Hudak‘s, that do not allege willful misconduct related to the administration or use of covered COVID-19 countermeasures. We agree.
At the outset, there is no question that the PREP Act has significant “pre-emptive force.” Caterpillar Inc., 482 U.S. at 393. The Act‘s general immunity provision, for instance, provides immunity to “covered person[s]” from “suit and liability under Federal and State law with respect to all claims for loss caused by” the use of a “covered countermeasure.”
The sole cause of action created by the PREP Act is “an exclusive Federal cause of action against a covered person for death or serious physical injury proximately caused by willful misconduct . . . by such covered person.”
We decline to decide whether
Elmcroft challenges this initial basis for our decision on the ground that it is error to focus on the PREP Act‘s standard of liability when determining whether Hudak‘s claims fall within the scope of the Act‘s federal cause of action. In Elmcroft‘s view, “the PREP Act creates a civil cause of action—regardless of the liability standard—for a ‘person who suffered an injury’ relating to a COVID-19 countermeasure,” and the Act thereby completely preempts all claims that relate to covered countermeasures irrespective of whether the claims allege negligence or willful misconduct. Appellant Br. at 30 (citing
To begin, Elmcroft‘s argument cannot be reconciled with the PREP Act‘s plain text. Contrary to Elmcroft‘s assertion, the PREP Act does not create a federal cause of action for all claims arising under the Act. Rather, as discussed, the Act begins by creating a rule of ordinary preemption, providing immunity to covered persons from all federal and state claims for loss caused by the administration or use of covered countermeasures. See
Further, Elmcroft‘s reliance on Davila is misplaced. Elmcroft suggests that Davila requires us to ignore the elements of Hudak‘s claims when determining whether her claims fall within the scope of the PREP Act‘s federal cause of action. But Davila makes clear that a state claim will be completely preempted only if it falls within the scope of an exclusive federal cause of action. 542 U.S. at 210. If a plaintiff could have brought a claim under the federal cause of action (and the claim does not rest on an independent legal duty), then the fact that state law imposes additional pleading requirements will not save their claim from complete preemption.
Even if we were to agree that Hudak asserts a willful misconduct claim, we would hold that Hudak‘s claims fall outside the scope of the PREP Act‘s federal cause of action for a second, independent reason. As noted, a willful misconduct claim brought under the PREP Act must be for a loss that has a “causal relationship with the administration to or use by an individual of a covered countermeasure[.]”
Elmcroft disputes this straightforward reading of the PREP Act by pointing to a portion of the HHS Secretary‘s March 2020 declaration that addressed the “administration” of covered countermeasures. Appellant Reply Br. at 12–15 (citing Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 85 Fed. Reg. 15,198 (Mar. 17, 2020)). Under the PREP Act, the Secretary has the authority under certain circumstances to issue a declaration recommending “the manufacture, testing, development, distribution, administration, or use of one or more covered countermeasures, and stating that [the Act‘s immunity provision] is in effect with respect to the activities so recommended.”
physical provision of the countermeasures to recipients, or activities and decisions directly relating to public and private delivery, distribution and dispensing of the countermeasures to recipients, management and operation of countermeasure programs, or management and operation of locations for purpose of distributing and dispensing countermeasures.
Id. at 15,202. Seizing on the final clause of this paragraph, Elmcroft argues that Hudak‘s claims allege a causal connection between Koballa‘s death and Elmcroft‘s management and operation.
The Secretary‘s declaration, though broad, does not rescue Elmcroft from the fundamental flaw in its argument. Setting aside the issue of what, if any, deference we owe to the Secretary‘s reading of the PREP Act, the declaration does not suggest that the term “administration” extends to all activities associated with the management or operation of a facility. Cf. Appellant Reply Br. at 14. Rather, the declaration states that the term encompasses management and operation activities
In sum, because Hudak does not allege that Elmcroft engaged in willful misconduct in the administration or use of a covered COVID-19 countermeasure, the PREP Act does not “provide[] the exclusive cause of action for the claim asserted” and does not completely preempt Hudak‘s state-law claims. Beneficial Nat‘l Bank, 539 U.S. at 8. Accordingly, the district court did not err in finding that Elmcroft could not remove the case on that basis under
2. Substantial Federal Question
Elmcroft next argues that removal to federal court was appropriate under
The Supreme Court has “identified a ‘special and small category’ of cases in which arising under jurisdiction” lies over claims originating in state rather than federal law. Gunn v. Minton, 568 U.S. 251, 258 (2013) (quoting Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 699 (2006)). Under Grable, “federal jurisdiction over a state law claim will lie if 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.”
C. Federal-Officer Removal Under § 1442(a)(1)
Turning to the second removal statute at issue, Elmcroft argues that the case is removable under the federal-officer removal statute.5 Section 1442(a)(1) permits a defendant to remove to federal court a state-court action brought against:
[t]he United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.
Where, as here, “the removing party is not a federal officer, we apply a three-part test to determine whether removal is proper.” Nappier v. Snyder, 728 F. App‘x 571, 574 (6th Cir. 2018). “The removing party must demonstrate that: (1) it is a ‘person’ within the meaning of the statute who ‘acted under a federal officer‘; (2) ‘it performed the actions for which it is being sued under color of federal office‘; and (3) ‘it raised a colorable federal defense.‘”
To demonstrate that it was acting under a federal officer, the removing party must show that it was “in a relationship with the federal government where the government [was] functioning as the defendant‘s superior.” Mays, 871 F.3d at 444. This relationship “typically involves ‘subjection, guidance, or control’ exercised by the government over the removing party. Watson v. Philip Morris Cos., 551 U.S. 142, 151 (2007) (quoting Webster‘s New International Dictionary 2765 (2d ed. 1953)). “In addition, precedent and statutory purpose make clear that the private person‘s ‘acting under’ must involve an effort to assist, or to help carry out, the duties or tasks of the federal superior.”
Elmcroft‘s reliance on Bennett, 607 F.3d 1076, and Caver v. Central Alabama Electric Cooperative, 845 F.3d 1135 (11th Cir. 2017), is misplaced. In both cases, private entities had agreements with the federal government under which the entities provided a service subject to the government‘s extensive direction and control. In Bennett, for instance, we held that a mold remediation firm hired by the Federal Aviation Administration (“FAA“) was “acting under” the FAA for purposes of removal under
Similarly, the Eleventh Circuit held in Caver that a rural electric cooperative was “acting under” a federal officer within the meaning of
Here, by contrast, Elmcroft asserts only that it operated a facility that came under significant federal regulation as part of the federal government‘s response to the COVID-19 pandemic. Elmcroft did not have an agreement with the federal government, did not produce a good or perform a service on behalf of the government, and has not shown that the federal government
IV. CONCLUSION
Elmcroft may invoke the PREP Act as a potential defense to Hudak‘s claims in state court, but it has not met its burden of showing that the Act supports removal of her claims to federal court under either