A resident of a Florida assisted living facility died shortly after contracting COVID-19. The representatives of her estate brought an action in state court against the owners and operators of the facility, alleging that the defendants failed to prevent the spread of the virus at the facility and asserting only state-law claims. The defendants removed the case to federal court, claiming that the case was removable under 28 U.S.C. § 1442 because the defendants were “acting under a federal officer”, and under 28 U.S.C. § 1441 because the plaintiffs’ claims were completely preempted by the federal Public Readiness and Emergency Preparedness (“PREP”) Act and/or the claims raised an embedded federal question concerning the PREP Act. The district court granted the plaintiffs’ motion to remand the case to state court. Because one of the asserted grounds for removal was under § 1442 (and despite the fact that the district court’s order did not address removal under § 1442), the order was appealable under 28 U.S.C. § 1447(d).
A divided panel of the Eleventh Circuit affirmed. Schleider v. GVDB Ops., LLC, 2024 WL 4630723 (11th Cir. Oct. 31, 2024). The majority opinion, written by Judge Lagoa, began with a discussion of relevant aspects of the PREP Act. The Act authorizes the Secretary of Health and Human Services to make a determination that a particular disease or health condition constitutes a public emergency. After making such a determination, the Secretary “may make a declaration . . . recommending . . . the manufacture, testing, development, administration, or use of one or more countermeasures.” When the Secretary makes a PREP Act determination as to a specific disease, “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.” That immunity, however, does not extend to certain “willful misconduct,” defined as “an act or omission that is taken—(i) intentionally to achieve a wrongful purpose; (ii) knowingly without legal or factual justification; and (iii) in disregard of a known or obvious risk that is so great as to make it highly probable that the harm will outweigh the benefit.” The PREP Act establishes exclusive federal jurisdiction for a willful misconduct claim. The Secretary issued a PREP Act declaration with respect to COVID-19 in March 2020.
The court quickly disposed of the defendants’ argument that the claims against them were removable because the defendants were “acting under a federal officer” within the meaning of § 1442. The defendants are private parties, and to have acted “under” a federal officer they must have been assisting in the carrying out of a federal officer’s duties. A private actor’s mere compliance with federal laws or regulations is insufficient, and the defendants’ claim that they were complying with “orders” or “instructions” from the Secretary and HHS did not make the case removable under § 1442.
Next the court addressed the defendants’ argument that the plaintiffs’ claims were completely preempted by the PREP Act. Noting that complete preemption is “rare,” the court determined that “state-law causes of action that fall outside the PREP Act’s definition of willful misconduct, including state-law causes of action for negligence, do not have a ‘parallel federal cause of action’ under the PREP Act.” Accordingly, the court joined the Fifth, Sixth, and Seventh Circuits in concluding that “the PREP Act, including its compensation fund, does not create a general cause of action that would completely preempt all state law claims related to COVID-19 and countermeasures taken, or not taken, to prevent the virus’s spread.” The court also noted that immunity under the PREP Act applies to claims for loss caused by the use of a covered countermeasure, and the plaintiffs’ complaint included no allegation that the defendants used any such countermeasure.
Finally, the court held that the PREP Act did not completely preempt the plaintiffs’ claims in the case before it, because the plaintiffs’ complaint asserted rights and obligations (including those imposed by Florida’s Assisted Living Facilities Act) that are “independent of” the PREP Act’s definition of willful misconduct. The court acknowledged that the plaintiff’s complaint did include allegations of “willful misconduct or gross negligence,” presumably in aid of a claim for punitive damages, but this was insufficient to trigger “complete preemption—a removal doctrine distinct from ordinary preemption.” The allegations of willful misconduct might permit an ordinary preemption defense, rendering the claims subject to dismissal to the extent they assert claims for wrongful misconduct under the PREP Act, but under the “well pleaded complaint” rule, a case cannot be removed on the basis of a federal preemption defense.
Judge Luck, dissenting, would hold that it was sufficient for federal-question jurisdiction that portions of the plaintiffs’ claims alleged willful misconduct within the PREP Act’s scope. “Because parts of the claims strayed into PREP Act territory,” he wrote, “the district court had jurisdiction over the entire suit—including supplemental jurisdiction over the negligence parts.”