Saldana v. Glenhaven Healthcare LLC, __ F.4th __, 2022 WL 518989 (9th Cir. Feb. 22, 2022)
The PREP Act neither requires providers to work under federal officials nor completely preempts state law
Ricardo Saldana died from COVID-19 while living at a Glenhaven nursing home. His relatives sued Glenhaven in superior court for elder abuse, willful misconduct, negligence, and wrongful death. Glenhaven removed the case to federal district court, which remanded for lack of subject matter jurisdiction. Glenhaven appealed, arguing that federal jurisdiction existed due to (1) the federal officer removal statute, 28 U.S.C § 1442, (2) complete preemption of Plaintiffs’ claims under the Public Readiness and Emergency Preparedness (PREP) Act, 42 U.S.C. §§ 247d-6d, 247d-6e, and (3) the complaint’s embedded federal question of PREP Act immunity.
The Ninth Circuit affirmed. First, federal officer removal jurisdiction was lacking. Although the PREP Act and related federal regulations impose extensive COVID-related nursing home safety obligations—and nursing homes are designated as “critical infrastructure” entities by the Cybersecurity and Infrastructure Security Agency—Glenhaven was not acting under a federal official and performing a duty of the federal government. Next, the court explained that the PREP Act does not completely preempt state law. There is no indication Congress intended to displace state-law causes of action, nor that Congress provided a substitute cause of action. The PREP Act “is invoked when ‘the [HHS] Secretary makes a determination that a disease or other health condition or other threat to health constitutes a public health emergency, or that there is a credible risk that the disease, condition, or threat may in the future constitute such an emergency ….’’ 42 U.S.C. § 247d-6d(b)(1). And a provision of the PREP Act confers an exclusive federal claim to remedy certain “willful misconduct.” 42 U.S.C. § 247d-6d(a)(1). Congress’s provision of that narrow claim (and not others, such as negligence) showed it did not “intend[ ] the Act to completely preempt all state-law claims related to the pandemic.” Finally, Glenhaven failed to show an embedded federal question because PREP Act immunity was not an essential element of Plaintiffs’ claims. Even the willful misconduct claim addressed just a subset of Glenhaven’s actions implicating the PREP Act.
The bulletin describing this appellate decision was originally prepared for the California Society for Healthcare Attorneys (CSHA) by H. Thomas Watson and Peder K. Batalden, who are partners at the appellate firm Horvitz & Levy LLP, and is republished with permission.
For more information regarding this bulletin, please contact H. Thomas Watson, Horvitz & Levy LLP, at 818-995-0800 or email@example.com.