Opinion
Case No.: 4:21-CV-00702
2022-03-16
Donna S. YARNELL, Plaintiff, v. CLINTON NO. 1, INC., Defendant.
Jeffery T. Adams, Poague, Wall, Cox & Adams, LLC, Clinton, MO, for Plaintiff. Thaddeus John McDonald, III, McDonald Davidson, P.A., Overland Park, KS, for Defendant.
Jeffery T. Adams, Poague, Wall, Cox & Adams, LLC, Clinton, MO, for Plaintiff.
Thaddeus John McDonald, III, McDonald Davidson, P.A., Overland Park, KS, for Defendant.
ORDER
Fernando J. Gaitan, Jr., United States District Judge
Pending before the Court are (1) Plaintiff's Motion to Remand (Doc. No. 5); and (2) Defendant's Motion To Dismiss (Doc. No. 4). As the Motion to Remand turns on whether the Court has jurisdiction over the claim, the Court turns to the motion to remand.
I. Background
On August 19, 2021, Plaintiff filed her Petition for damages for wrongful death against Defendant in the Circuit Court of Henry County in Clinton, Missouri under Mo. Rev. Stat. § 537.080. The Petition alleges that Defendant violated an agreement with Plaintiff's mother and her family and was negligent in its treatment of Plaintiff's mother. No federal claims appear on the face of the relevant Petition, and complete diversity of citizenship is absent in this case.
Defendant removed the case to federal court on September 29, 2021, asserting that the Court has jurisdiction under the Public Readiness and Emergency Preparedness Act ("PREP Act") and under the federal officer removal statute, 28 U.S.C. § 1442. Plaintiff moved to remand the case on October 18, 2021, arguing that the Petition alleges solely claims under state law and that neither of Defendant's proposed mechanisms for federal jurisdiction applies.
II. Standard
A civil action brought in state court may be removed to a federal district court if the district court has original jurisdiction over the action. 28 U.S.C. § 1441(a). District courts have original jurisdiction of "civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Removal statutes are strictly construed. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108, 61 S.Ct. 868, 85 L.Ed. 1214 (1941). "[T]he party seeking removal and opposing remand ... ha[s] the burden of establishing federal subject matter jurisdiction," and doubts about federal jurisdiction are resolved in favor of remand. In re Bus. Men's Assur. Co. of Am., 992 F.2d 181, 183 (8th Cir. 1993).
In the absence of diversity jurisdiction, removal of an action to federal court is proper only if the claim raises a federal question. Peters v. Union Pac. Ry. Co., 80 F.3d 257, 260 (8th Cir. 1996). Jurisdiction based on a federal question arises in "only those cases in which a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law." Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 27-28, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). However, an action originally filed in state court may be removed to federal court if the action is directed 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 ...." 28 U.S.C. § 1442(a)(1). This federal officer removal statute is an exception to the well-pleaded complaint rule, is to be liberally construed, and "thus the typical presumption against removal does not apply." Buljic v. Tyson Foods, Inc., 22 F.4th 730, 738 (8th Cir. 2021).
Another exception to the well-pleaded complaint rule is a statute that carries complete preemptive force that may transform petitions pleading solely state claims into ones stating a federal claim. See, e.g. , Peters, 80 F.3d at 260. "Once an area of state law has been completely preempted, any claim based on that preempted state law claim is considered ... to raise a federal claim and therefore arises under federal law." Id.
III. Discussion
A. Federal officer jurisdiction
Plaintiff argues that her claims are not subject to federal officer jurisdiction under 28 U.S.C. § 1442, and therefore the case should be remanded to state court. If a party wishing to remove under 28 U.S.C. § 1442 "is not a federal officer or agency, it may remove a case only if it shows that it was ‘acting under’ a federal officer or agency in carrying out the acts that underlie the plaintiff's complaint." Buljic, 22 F.4th at 738. For federal officer jurisdiction to apply, the removing party is required to meet the following elements:
(1) it acted under the direction of a federal officer, (2) there is a causal connection between ... [its] actions and the official authority, (3) ... [the party] has a colorable federal defense to the plaintiff's claims, and (4) ... [the party] is a ‘person,’ within the meaning of the statute.
Id. Because all four requirements must be met and because the second requirement hinges on the first, the principal issue is whether Defendant was acting under the direction of a federal officer.
While the language of "acting under" is broad, "not all relationships between private entities and the federal government satisfy this element." Id. The private party's actions must "help carry out " governmental tasks and must go beyond merely complying with the law. Id. at 738-39 (emphasis in original). For instance, "[g]overnment contractors fall within the terms of the federal officer removal statute, at least when the relationship between the contractor and the [g]overnment is an unusually close one involving detailed regulation, monitoring, or supervision." Watson v. Philip Morris Companies, 551 U.S. 142, 153, 127 S.Ct. 2301, 168 L.Ed.2d 42 (2007). In Jacks v. Meridian Res. Co., a health insurance company acted under a federal officer or agency when it assisted the government in implementing a health benefits program for federal employees pursuant to the Federal Employees Health Benefits Act (FEHBA) and where the United States Office of Personnel Management had "direct and extensive control over these benefits contracts under the FEHBA." 701 F.3d 1224, 1233 (8th Cir. 2012).
However, "the federal government's mere designation of an industry as important—or even critical ... [is not enough to] federalize an entity's operations and confer federal jurisdiction." Buljic, 22 F.4th at 740 (citing Maglioli v. All. HC Holdings, 16 F.4th 393, 406 (3d Cir. 2021) ). In Buljic, the Court found that a meat and poultry facility was not fulfilling a "basic governmental task or operating pursuant to a federal directive," 22 F.4th at 742, and thus was not acting under federal direction in continuing to operate in March and April of 2020 during the COVID-19 pandemic, despite numerous communications with federal officials and the federal government's designation of the food and agriculture industry as critical infrastructure. 22 F.4th at 739-42. Similarly, in Buljic the Eighth Circuit noted with approval the Third Circuit's holding that a federal agency's "designation of nursing homes as critical infrastructure ... was not sufficient for the ‘acting under’ element because ‘Congress did not deputize all of these private-sector workers as federal officers.’ " Id. at 740 (quoting Maglioli, 16 F.4th at 406 ).
In the instant case, Defendant argues that (1) a primary function of the federal government during the COVID-19 pandemic has been to protect citizens from the virus, (2) the relationship between nursing homes and the federal government became unusually close following the HHS Secretary's declaration, and (3) the designation of businesses as critical infrastructure allowed them to assist the government. The Eighth Circuit's recent ruling in Buljic, however, has clarified that such a designation, even coupled with extensive regulation by and communications from the federal government, does not meet the "acting under" element of the federal officer jurisdiction statute. The Eighth Circuit's favorable citation of the Maglioli court's holding regarding nursing homes suggests that the relationship of the federal government to nursing homes should be treated similarly to that of meat and poultry facilities, which did not meet the "acting under" element in Buljic. Thus, the Court finds that Defendant cannot satisfy the first element of federal officer jurisdiction, rendering removal unwarranted under 28 U.S.C. § 1442, and the Court need not consider the remaining required elements.
B. Complete Preemption Under the PREP Act
Defendant also argues that Plaintiff's state claims are preempted by the PREP Act, which Defendant argues is a complete preemption statute. The PREP Act "protects certain covered individuals—such as pharmacies and drug manufacturers—from lawsuits during a public-health emergency." Maglioli, 16 F.4th at 400. Upon determining that a threat to health amounts to a public health emergency, the Secretary of the Department of Health and Human Services ("HHS") may invoke the Act by publishing a declaration in the Federal Register, "recommending ... the manufacture, testing, development, distribution, administration, or use of one or more covered countermeasures, and stating that subsection (a) [of the Act] is in effect ..." 42 U.S.C. § 247d-6d(b)(1). Under subsection (a), a covered person is immune from liability "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 ..." 42 U.S.C. § 247d-6d(a)(1). The PREP Act states that, once triggered by a declaration of the HHS Secretary, "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 ... use ... prescribing, dispensing, or administration by qualified persons of the covered countermeasure ...." 42 U.S.C. § 247d-6d(b)(8). Two courts have adopted the following summary of the PREP Act:
[T]he PREP Act creates immunity for all claims of loss causally connected to the administration or use of covered countermeasures, which are certain drugs, biological products, or devices. Exceptions to immunity exist for claims of willful misconduct but suit must be brought in the United States District Court for the District of Columbia. All other claims for injuries "directly caused by the administration or use of a covered countermeasure" must be pursued through the Covered Countermeasure Process Fund. State laws that differ or conflict regarding the administration or use of covered countermeasures are preempted.
Sherod v. Comprehensive Healthcare Mgmt. Serv., LLC, 20cv1198, 2020 WL 6140474, at *6 (W.D. Pa. Oct. 16, 2020) (quoting Jackson v. Big Blue Healthcare, Inc., No. 2:20-cv-2259-HLT-JPO, 2020 WL 4815099, at *5 (D. Kan. Aug. 19, 2020) ). Courts "examine the text and structure of a statute to determine" whether Congress clearly intended "to preempt an area of state law." Peters, 80 F.3d at 261.
1. The PREP Act is not a complete preemption statute because Congress did not explicitly provide for complete preemption in the statutory text.
Following the HHS Secretary's March 2020 declaration under the PREP Act, HHS has suggested, through amended versions of the declaration and through advisory opinions of its general counsel, that the Act is a complete preemption statute. See, e.g. , Maglioli, 16 F.4th at 401, 403. However, courts need not defer to these interpretations because the PREP Act does not grant the Secretary authority to interpret "the scope of federal jurisdiction." Id. at 403 ; see also Smith v. Berryhill, ––– U.S. ––––, 139 S.Ct. 1765, 1778, 204 L.Ed.2d 62 (2019) ; Adams Fruit Co. v. Barrett, 494 U.S. 638, 649-50, 110 S.Ct. 1384, 108 L.Ed.2d 585 (1990) (explaining that deference to an agency regarding a statute's interpretation is not required where the statute "is not administered by the agency but by the courts") (quoting Crandon v. United States, 494 U.S. 152, 177, 110 S.Ct. 997, 108 L.Ed.2d 132 (1990) ); Segel v. Sunray Healthcare Ctr., CV 21-7468 DSF (DFMx), 2021 WL 5755639, at *3 (C.D. Cal. Dec. 2, 2021).
A state claim may be removed to federal court in two circumstances: "when Congress expressly so provides ... or when a federal statute wholly displaces the state-law cause of action through complete pre-emption." Beneficial Nat. Bank v. Anderson, 539 U.S. 1, 8, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003). Statutes that have been found to carry complete preemptive power "provided the exclusive cause of action for the claim asserted and also set forth procedures and remedies governing that cause of action." Id. Only three statutes have been recognized to carry complete preemptive power: § 301 of the Labor Management Relations Act (the LMRA), § 502(a) of the Employee Retirement Income Security Act of 1974 (ERISA), and §§ 85 and 86 of the National Bank Act. City of Oakland v. BP PLC, 969 F.3d 895, 905-06 (9th Cir. 2020). In the Eighth Circuit, "Congressional intent is the touchstone of the complete preemption analysis." Casino Res. Corp. v. Harrah's Ent., Inc., 243 F.3d 435, 438 (8th Cir. 2001) (quoting Magee v. Exxon Corp., 135 F.3d 599, 601–02 (8th Cir. 1998) ).
The Third Circuit has recently interpreted the PREP Act to create specific preemption for claims of willful misconduct while not creating complete preemption. See Maglioli, 16 F.4th at 409-411 ; Segel, 2021 WL 5755639, at *3 n.2 (acknowledging the Third Circuit's interpretation of the PREP Act). While the Eighth Circuit has not considered whether the PREP Act is a complete preemption statute, most courts that have addressed the issue have found that it is not. See, e.g. , Maglioli, 16 F.4th at 410-12 ; Saldana v. Glenhaven Healthcare LLC, 27 F.4th 679, 686-689 (9th Cir. 2022) ; LaMonica v. Heights of Summerlin, LLC., No. 2:21-CV-1040 JCM, 2022 WL 542565, at *5 D. Nev. Feb. 23, 2022 ("[t]he court ... joins ‘nearly every federal district court’ in rejecting ... creative attempts to manufacture federal-court jurisdiction under the auspices of the PREP Act." (quoting Maglioli, 16 F.4th at 393 )); Jalili-Farshchi v. Aldersly, No. 3:21-cv-04727-JD, 2021 WL 6133168, at *2 (N.D. Cal. Dec. 29, 2021) ("[a] consensus is emerging that the PREP Act is not a fourth member of the complete preemption family."); Pirotte v. HCP Prairie Village KS OPCO, No. 21-2346-DDC-KGG, 2022 WL 179444, at *12-13 (D. Kan. Jan. 20, 2022) ; Martin v. Petersen Health Operations, LLC, No. 1:20-cv-1449, 2021 WL 4313604, at *10 (C.D. Ill. Sept. 22, 2021) ("[n]early every district court to consider whether the PREP Act completely preempts similar state-law claims against nursing homes has concluded the PREP Act is not a complete preemption statute ..."). But see Garcia v. Welltower OpCo Group, 522 F.Supp.3d 734, 743 (C.D. Cal. 2021) (relying on Advisory Opinions issued by the HHS Office of General Counsel to find complete preemption); Rachal v. Natchitoches Nursing & Rehab. Ctr. LLC, NO. 1:21-CV-00334, 2021 WL 5449053, at *6 (W.D. La. Apr. 30, 2021) (finding "HHS's interpretation of the PREP Act and its scope ... reasonable").
Plaintiff has not pled a claim for willful misconduct; instead, plaintiff's claims appear to be for negligence.
Here, Defendant urges the Court to find complete preemption in the language of the PREP Act, as supported by Advisory Opinion 21-01 of the HHS Office of General, as well as the HHS Declaration and its Amendments. However, while the PREP Act does provide immunity from liability for losses arising out of or relating to the use of covered countermeasures, the language of the Act does not explicitly state that the Act is a complete preemption statute, and HHS Advisory Opinions and Amendments to the Declaration are not binding on the Court. Given the rarity of complete preemption statutes, the lack of clarity on the point in the statute itself, and the overwhelming majority of district courts to date finding an absence of explicit Congressional intent for complete preemption, the Court finds that PREP Act does not preempt Plaintiff's state law claims.
2. The PREP Act does not apply because the plaintiff's complaint does not allege the use of a covered countermeasure.
The PREP Act applies only to claims relating to a "covered person's" use of "covered countermeasures." 42 U.S.C. § 247d-6d(a)(1). Covered countermeasures include drugs, biological products, or devices used to diagnose, treat, or mitigate a pandemic. 42 U.S.C. § 247d-6d(i)(1). A covered person may be a manufacturer, distributor, or program planner of a covered countermeasure, "a qualified person who prescribed, administered, or dispensed such countermeasure," or an official agent of such a person. 42 U.S.C. § 247d-6d(i)(2). Several courts have considered general negligence claims brought against nursing care facilities relating to failure to prevent the spread of COVID-19 and found that such claims fall outside the PREP Act. See, e.g. , Pirotte, 2022 WL 179444, at *9 (collecting cases); Lollie v. Colonnades Health Care Ctr. Ltd. Co., H-21-1812, 2021 WL 4155805, at *3 (S.D. Tex. Sept. 13, 2021) (collecting cases).
Plaintiff's allegations that Defendant was negligent in its care of her mother by placing her mother with a roommate and by moving her to a hospital against her wishes do not implicate a drug, vaccine, or other product that is a covered countermeasure under the PREP Act. Failing to timely separate Plaintiff's mother from her roommate once the latter had been infected with COVID also does not relate to any product or device. While Plaintiff's Petition does allege a failure on Defendant's part "to follow individualized infection control during the pandemic," it does not mention any covered countermeasures in relation to such infection control. As no allegations implicating a covered countermeasure appear on the face of the Petition, the Court finds that the PREP Act does not apply to Plaintiff's state law claims.
Therefore, after reviewing the parties’ briefs, motions, and the operative Petition, the Court finds that federal jurisdiction is absent in this matter. Plaintiff's Petition does not raise a federal question, Defendant has not shown that federal officer jurisdiction applies, and the PREP Act neither wholly preempts state negligence claims nor applies to Defendant due to a lack of a covered countermeasure implicated in Plaintiff's petition. Therefore, Plaintiff's motion to remand must be GRANTED and this case REMANDED to state court.
IV. Conclusion
For the above stated reasons, the Court GRANTS Plaintiff's motion to remand (Doc. No. 5). The above captioned case is REMANDED to the Circuit Court of Henry County, Missouri. All other pending motions are DENIED AS MOOT.