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In Sorace, the Court also took note of, inter alia, a number of decisions issued by other California district courts, also ruling against the defendants in the various cases.
Summary of this case from Gonzalez v. CF Watsonville W. LLCOpinion
21-cv-05714-EMC
11-09-2021
OLGA SORACE, et al., Plaintiffs, v. ORINDA CARE CENTER, LLC, et al., Defendants.
ORDER GRANTING PLAINTIFFS' MOTION TO REMAND, AND DENYING DEFENDANTS' MOTION TO DISMISS DOCKET NOS. 8, 18
EDWARD M. CHEN UNITED STATES DISTRICT JUDGE
On May 13, 2021, Plaintiffs Olga Sorace, deceased, by and through her personal legal representative and successor in interest, Essie Bracknell, and Essie Bracknell, individually, (“Plaintiff/Plaintiffs”) filed this action in Contra Costa County Superior Court. Notice of Removal (State Court Complaint) at 63, Docket No. 1. On July 26, 2021, Defendants Orinda Care Center, LLC, Renew Health Group, LLC, Larry Goldfarb, Crystal Solorzano, Does 1-25, inclusive, Michael Sorace, Sonya Kolinsky, and John Bracknell (“Defendants”) filed a Notice of Removal in this Court. Docket No. 1. On August 2, 2021, Defendants filed a Motion to Dismiss. Defs. MTD, Docket No. 8. On August 16, 2021, Plaintiffs filed a Motion to Remand the matter. Pls. MTR, Docket No. 18. On September 18, 2021, the Court temporarily vacated the hearing on Defendants' Motion to Dismiss so as to hear the Motion to Remand first. Clerk's Notice, Docket No. 22. Currently pending before the Court are Defendants' Motion to Dismiss and Plaintiffs' Motion to Remand. For the following the reasons, the Court GRANTS Plaintiffs' Motion to Remand and DENIES AS MOOT Defendants' Motion to Dismiss.
Michael Sorace, Sonya Kolinsky, and John Bracknell appear to be named in the Complaint as nominal defendants. Plaintiffs do not assert any claims against the nominal defendants.
I.BACKGROUND
Plaintiff Essie Bracknell is the natural daughter of Olga Sorace. Pls. MTR at 1. Notably, Plaintiff filed a complaint in Contra Costa Superior Court alleging claims for: (1) elder abuse and neglect in violation of California Welfare and Institutions Code §§ 15600, et. seq.; (2) violations of patient rights pursuant to California Health and Safety Code § 1430(b); (3) negligence; and (4) wrongful death. Notice of Removal (State Court Complaint) at 1. In her complaint, Plaintiff alleges that Olga Sorace (the “Decedent”) was admitted to the Orinda Care Center, a skilled nursing facility, for long-term care in 2014. Compl. ¶ 38. Plaintiff notes that the Decedent had a “history of Alzheimer's dementia, unsteady gait, hearing problems, balance problems, impaired communication, weakness, impaired cognition, hypertension, and impaired physical mobility. Additionally, she was labeled a fall risk.” Id. ¶ 39. Plaintiff states that because of her physical and mental condition, the Decedent “was dependent on others for her activities of daily living including, but not limited to, personal hygiene, continence care, transferring in and out of bed, eating, drinking, and managing medication.” Id. Plaintiff specifically alleges that Defendants failed to properly assess and gather information to make decisions about suitable interventions “to avoid individualized health risks.” Id. ¶ 40. Additionally, Plaintiff claims that Defendants failed to assess the Decedent, “update her care plans regarding dehydration, provide her with assistance with feeding and drinking, and failed to monitor her signs and symptoms of dehydration and malnutrition.” Id. ¶ 45. Plaintiff further alleges that Defendants' employees began to fail to show up for work and as a result of understaffing, Defendants “failed to provide required care to the facilit[y's] residents and placed them in harm's way.” Id. ¶ 49. The complaint implies that because of Defendants' aforementioned neglect and failure to provide adequate care due to understaffing, the Decedent contracted COVID-19 and had to be transported to John Muir Medical Center. Id. ¶¶ 49-52. Plaintiff claims that the neglect, elder abuse, and inadequate staffing ultimately resulted in the Decedent's death on April 18, 2020. Id. ¶ 53.
As for Plaintiff's first cause of action, she is seeking: compensatory damages, special damages including past hospital, medical, professional, and incidental expenses, interest on compensatory damages, attorneys' fees, punitive damages, and treble damages. Compl., Prayer for Relief ¶ 1. As for the second cause of action, Plaintiff is seeking statutory damages and attorney's fees. Id. ¶ 2. As for the third and fourth causes of actions, Plaintiff requests compensatory damages, special damages including funeral and burial expenses, medical and incidental expenses according to proof, and for interest on any compensatory damages. Id. ¶ 2.
As noted above, on July 26, 2021, Defendants removed this case to this Court, asserting subject matter jurisdiction on three grounds: (1) Plaintiff's claims are completely preempted by the Public Readiness and Emergency Preparedness Act (“PREP Act”), 42 U.S.C. §§ 247-6d and 247-6e; (2) the action raises a substantial and important federal issue, citing Grable & Sons Metal Products v. Darue Engineering & Manufacturing, 545 U.S. 308 (2005); and (3) removal is proper under the federal officer statute (28 U.S.C. § 1442(a)(1)) because Defendant was acting under the direction of a federal officer when it engaged in the allegedly tortious conduct. See Notice of Removal, Docket No. 1. Plaintiff challenges the removal of this action and moves to remand the matter back to Contra Costa County Superior Court. See Motion to Remand, Docket No. 18.
II.LEGAL STANDARD
A. Removal
A defendant may remove an action to federal court only where there is either complete diversity among the parties or federal question jurisdiction. 28 U.S.C. § 1441. Federal question jurisdiction exists over all civil actions arising under the Constitution, laws, or treaties of the United States. Id. § 1331. Removal is proper if the case could have originally been filed in federal court. Lee v. Am. Nat'l Ins. Co., 260 F.3d 997, 1004 (9th Cir. 2001).
The “well-pleaded complaint” rule requires a federal question to be present on the face of the complaint at the time of removal for federal question jurisdiction to exist. Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996). Causes of action “arise under” federal law in accordance with 28 U.S.C. § 1331 if federal law creates the cause of action or the complaint necessarily depends on a substantial question of federal law. Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 808 (1988). Federal jurisdiction cannot rest upon an actual or anticipated defense or counterclaim. Vaden v. Discover Bank, 556 U.S. 49, 60 (2009). “The burden of establishing federal subject matter jurisdiction falls on the party invoking removal.” Marin Gen. Hosp. v. Modesto & Empire Traction Co., 581 F.3d 941, 944 (9th Cir. 2009) (citing Toumajian v. Frailey, 135 F.3d 648, 652 (9th Cir. 1998)). Notably, there is a “strong presumption against removal jurisdiction, ” and courts must reject it “if there is any doubt as to the right of removal in the first instance.” Geographic Expeditions, Inc. v. Est. of Lhotka ex rel. Lhotka, 599 F.3d 1102, 1107 (9th Cir. 2010) (quoting Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (per curiam)) (internal quotation marks omitted).
III.DISCUSSION
Here, the complaint does not assert a federal claim for relief. The claims are all based on state law. Defendants argue that this Court has subject matter jurisdiction on three independent grounds: (1) complete preemption under the PREP Act; (2) embedded question of federal law under the Grable doctrine; and (3) federal officer removal. Plaintiffs contend that none of these grounds applies here.
At the outset, it is noteworthy that several courts in the Central and Southern Districts of California have addressed these questions in the context of state law tort suits arising out of COVID-19 deaths in care facilities. See, e.g., Martin v. Serrano Post Acute LLC, No. 20-cv-5937, 2020 WL 5422949, at *1 (C.D. Cal. Sept. 10, 2020); Jackie Saldana v. Glenhaven Healthcare LLC, No. 20-cv-5631, 2020 WL 6713995, at *1 (C.D. Cal. Oct. 14, 2020) (appeal filed Nov. 13, 2020); Est. of McCalebb v. AG Lynwood, LLC, No. 2:20-cv-09746, 2021 WL 911951, at *1 (C.D. Cal. Mar. 1, 2021) (appeal filed Mar. 31, 2021); Smith v. Colonial Care Ctr., Inc., No. 2:21-cv-00494, 2021 WL 1087284, at *1 (C.D. Cal. Mar. 19, 2021) (appeal filed Apr. 19, 2021); Stone v. Long Beach Healthcare Ctr., LLC, No. 21-cv-326, 2021 WL 1163572, at *1 (C.D. Cal. Mar. 26, 2021); Winn v. California Post Acute LLC, No. 21-cv-02854, 2021 WL 1292507, at *1 (C.D. Cal. Apr. 6, 2021) (appeal filed May 7, 2021). In each of these cases, the district court found that it lacked subject matter jurisdiction and remanded the case to state court. Defendants argue that these courts too narrowly interpret the PREP Act and misconstrue Congress's and HHS's intent. Opp'n at 19, Docket No. 23.
A. Complete Preemption
The Supreme Court “has recognized . . . an ‘independent corollary to the well-pleaded complaint rule known as the complete pre-emption doctrine.' ” Retail Prop. Tr. v. United Bhd. of Carpenters & Joiners of Am., 768 F.3d 938, 947 (9th Cir. 2014) (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 393, 107 S.Ct. 2425 (1987)). The complete preemption “doctrine posits that there are some federal statutes that have such ‘extraordinary pre-emptive power' that they ‘convert[ ] an ordinary state common law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.' ” Retail Prop. Tr., 768 F.3d at 947 (quoting Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 65 (1987)). “Complete preemption refers to the situation in which federal law not only preempts a state-law cause of action, but also substitutes an exclusive federal cause of action in its place.” Hansen v. Grp. Health Coop., 902 F.3d 1051, 1057 (9th Cir. 2018) (citations omitted). “Thus, a state claim may be removed to federal court . . . 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 (2003) (fns. omitted).
The Ninth Circuit has instructed that “complete preemption is ‘rare' ” and has recognized that “[o]ther circuits unanimously agree.” Hansen, 902 F.3d at 1057 (citing Retail Prop. Tr., 768 F.3d at 947, ARCO Envtl. Remediation, L.L.C. v. Dep't of Health & Envtl. Quality of Mont., 213 F.3d 1108, 1114 (9th Cir. 2000), Griffioen v. Cedar Rapids & Iowa City Ry. Co., 785 F.3d 1182, 1189 (8th Cir. 2015), Berera v. Mesa Med. Grp., PLLC, 779 F.3d 352, 360 n.9 (6th Cir. 2015), Dutcher v. Matheson, 733 F.3d 980, 985 (10th Cir. 2013), and Cmty. State Bank v. Strong, 651 F.3d 1241, 1261 n.16 (11th Cir. 2011)). Notably, the Supreme Court has identified only three statutes that completely preempt state law claims: (1) § 301 of the Labor Management Relations Act (the LMRA), 29 U.S.C. § 185; (2) § 502(a) of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1132(a); and (3) §§ 85 and 86 of the National Bank Act, 12 U.S.C. §§ 85, 86. City of Oakland v. BP PLC, 969 F.3d 895, 905-06 (9th Cir. 2020).
Moreover, in the Ninth Circuit, “complete preemption for purposes of federal jurisdiction under § 1331 exists when Congress: (1) intended to displace a state-law cause of action, and (2) provided a substitute cause of action.” Id. (citing Hansen, 902 F.3d at 1057). As such, before complete preemption can apply to a plaintiff's state law claims, “the claims at issue must fall within the scope of the relevant federal statute.” Jackson v. Big Blue Healthcare, Inc., 2020 WL 4815099, at *3-4 (D. Kan. Aug. 19, 2020) (citing Beneficial Nat. Bank v. Anderson, 539 U.S. at 9 n.5).
The party invoking federal jurisdiction bears the burden of demonstrating that the federal statute applies and completely preempts at least one of the other party's state law claims. See Reiten v. CIGNA Health & Life Ins. Co., No. 20-cv-2330, 2020 WL 1862462, at *3 (C.D. Cal. Apr. 14, 2020) (“As the party seeking to invoke federal jurisdiction, [the defendant] bears the burden of proving that [the] plaintiff's claim is completely preempted.”); see also Smallwood v. Allied Van Lines, Inc., 660 F.3d 1115, 1120 (9th Cir. 2011) (“[T]he district court had subject matter jurisdiction if at least one of [the plaintiff's] claims was completely preempted by the [federal statute].”).
1. The PREP Act
Here, Defendants assert that the PREP Act provides for complete preemption. The Court thus first describes the Act. If the Secretary (the “Secretary”) of the Department of Health and Human Services (“HHS”) “determin[es] that a disease or other health condition or other threat to health constitutes a public health emergency, ” the PREP Act gives the Secretary the authority to “make a declaration, through publication in the Federal Register, recommending, under conditions as the Secretary may specify, the manufacture, testing, development, distribution, administration, or use of one or more covered countermeasures …” 42 U.S.C. § 247d-6d(b)(1). Notably, the Secretary issued such a declaration with respect to the ongoing COVID-19 pandemic. See Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 85 Fed. Reg. 15198, 15198 (Mar. 17, 2020) (the “Declaration”). The PREP Act provides immunity from liability with respect to the administration or use of a recommended covered countermeasure.
To date, the Secretary has issued nine amendments to the Declaration. See First Amended Decl., 85 Fed. Reg. 21012 (Apr. 15, 2020); Second Amended Decl., 85 Fed. Reg. 35100 (June 8, 2020); Third Amended Decl., 85 Fed. Reg. 52136 (Aug. 24, 2020); Fourth Amended Decl., 85 Fed. Reg. 79190 (Dec. 9, 2020); Fifth Amended Decl., 86 Fed. Reg. 7872 (Feb. 2, 2021); Sixth Amended Decl., 86 Fed. Reg. 9516 (Feb. 16, 2021); Seventh Amended Decl., 86 Fed. Reg. 1446202 (Mar. 11, 2021); Eighth Amended Decl., 86 Fed. Reg. 41977 (Aug. 4, 2021); and Ninth Amended Decl., 86 Fed. Reg. 51160 (Sept. 14, 2021).
Public Readiness and Emergency Preparedness Act, COVID-19 PREP ACT Declarations, https://www.phe.gov/Preparedness/legal/prepact/Pages/default.aspx (last visited Oct 26, 2021).
The PREP Act defines a “covered countermeasure” as (1) a “qualified pandemic or epidemic product, ” (2) a “security countermeasure, ” (3) a drug, biological product, or device that is authorized for emergency use, or (4) a “respiratory protective device that is approved by the National Institute for Occupational Safety and Health . . ., and that the Secretary determines to be a priority for use during a public health emergency[.]” 42 U.S.C. § 247d-6d(i)(1). The Declaration explains that a covered countermeasure includes “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 “any device used in the administration of any such product, and all components and constituent materials of any such product.” Declaration at 15202.
Particularly relevant to Defendants' position is the Fourth Amendment to the Declaration in which the Secretary defined the “administration” of a covered countermeasure as follows:
Administration of the Covered Countermeasure means 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 the purpose of distributing and dispensing countermeasures.
Where 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 42 U.S.C. 247d-6d. For example, consider a situation where there is only one dose . . . of a COVID-19 vaccine, and a person in a vulnerable population and a person in a less vulnerable population both request it from a healthcare professional. In that situation, the healthcare professional administers the one dose to the person who is more vulnerable to COVID-19. In that circumstance, the failure to administer the COVID-19 vaccine to the person in a less-vulnerable population “relat[es] to . . . the administration to” the person in a vulnerable population. The person in the vulnerable population was able to receive the vaccine only because it was not administered to the person in the less-vulnerable population. Prioritization 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 this Declaration's liability protections.85 Fed. Reg. at 79197.
Notably, the PREP Act's immunity provision 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[.]” 42 U.S.C. § 247d-6d(a)(1). The PREP Act's immunity provision provides as follows:
The immunity under paragraph (1) applies to any claim for loss that has a causal relationship with the administration to or use by an individual of a covered countermeasure, including a causal relationship with the design, development, clinical testing or investigation, manufacture, labeling, distribution, formulation, packaging, marketing, promotion, sale, purchase, donation, dispensing, prescribing, administration, licensing, or use of such countermeasure.42 U.S.C. § 247d-6d(a)(2)(B). If the PREP Act applies, the only remedies available to an injured person are: (i) compensation for covered injuries from an administrative “Covered Countermeasures Process Fund” administered by the Secretary, or (ii) an action filed in the U.S. District Court for the District of Columbia if there is “death or serious physical injury proximately caused by willful misconduct.” 42 U.S.C. §§ 247d-6d(d)(1), 247d-6e. It does not provide generally for a federal claim that can be brought in district court.
2. Applicability of the PREP Act
Before addressing the more global question of complete preemption, the Court notes that it spears that Plaintiffs' claims do not even fall within the scope of the PREP Act. Plaintiffs allege that Decedent's death was the result of Defendants' inaction with regard to her individualized care plan (hydration, nutrition, etc.) and inadequate staffing. Compl. ¶¶ 39-53. Defendants argue that the PREP Act applies to Plaintiff's claims because the Secretary's Fourth Amendment makes clear that the failure to use a covered countermeasure can fall within the PREP Act's protections and that the failure to properly implement an effective infection control program by its very nature implicates the use of covered countermeasures such as, personal protective equipment and COVID-19 testing. Opp'n at 10.
Although, the HHS Secretary's Fourth Amendment makes clear that an “inaction claim” is not necessarily beyond the scope of the PREP Act, such claims appear to only fall under the scope of the PREP Act where: (1) there are limited covered countermeasures; and (2) there was a failure to administer a covered countermeasure to one individual because it was administered to another individual. 85 Fed. Reg. at 79197 (illustrating a causal relationship between (1) administering and (2) not administering a covered countermeasure where person-A “was able to receive the [single covered countermeasure] only because it was not administered to” person B). Therefore, pursuant to the HHS Secretary's Fourth Amendment, “there appears to only be immunity for ‘inaction claims' when the failure to administer a covered countermeasure to one individual has ‘a close causal relationship' to the administration of that covered countermeasure to another individual.” Stone, 2021 WL 1163572, at *4 (citing Anson v. HCP Prairie Village KS Opco LLC, 2021 WL 308156 (D. Kan. Jan. 29, 2021)). For example, “[p]rioritization or purposeful allocation of a Covered Countermeasure, particularly if done in accordance with a public authority's directive, can fall within the PREP Act and th[e] Declaration's liability protections.” 85 Fed. Reg. at 79197. However, “other ‘inaction claims' may not.” Stone, 2021 WL 1163572, at *4.
Plaintiffs do not allege that the Decedent's cause of death was causally connected to the administration or use of any covered countermeasure in their complaint. Rather, Plaintiffs allege that Decedent's death was the result of Defendants' inaction, not with respect to rationing a covered countermeasure, but with regard to the Decedent's general individualized care plan (hydration, nutrition, etc.) and inadequate staffing. Compl. ¶¶ 39-53. Plaintiff's complaint does not explicitly allege that Defendants failed to create a proper infection control mechanism to avoid the transmission of the COVID-19 virus or that Defendants failed to properly train staff with regard to the COVID-19 virus and utilize personal protective equipment. Several district courts have concluded this kind of inaction - where the plaintiff explicitly faults a nursing home defendant for failing to create and maintain a proper infection control program during the pandemic - do not fall within the scope of the PREP Act. See, e.g., Estate of McCalebb, 2021 WL 911951, at *1, 5 (concluding that the action does not appear to be about a purposeful allocation of scarce resources where the plaintiff alleged that, inter alia, the defendant failed to follow, implement, and adhere to all CDC guidelines on how to protect and treat the decedent in light of the risk of COVID-19, and where “the gravamen of the Complaint is that Defendant was generally neglectful in operating the Facility”); Robertson v. Big Blue Healthcare, Inc., 2021 WL 764566, at *2, 7-9 (D. Kan. Feb. 26, 2021) (concluding that inaction claims premised on a failure to take preventative measures to stop the spread of COVID-19, including allegations that the defendants failed to “follow proper infection control protocols” and “provide personal protective equipment (‘PPE') to staff” do not fall within the scope of the PREP Act).
The Court agrees. None of the Defendants' conduct alleged by Plaintiffs qualifies as administration or use of a covered countermeasure within the meaning of the PREP Act. There is no causal connection between the injury and the use or administration of a covered countermeasure. That the claims herein - typical of claims arising from alleged inadequate care in facilities for the elderly - do not, on their face, fall within the purview of the PREP Act underscores the thin thread upon which the claim of complete preemption rests.
3. Lack of Complete Preemption
The PREP Act does not provide a basis for complete preemption, because it does not satisfy the Ninth Circuit's two pronged complete preemption test. First, the PREP Act does not completely replace state law claims related to COVID-19. As the above discussion demonstrates, common claims of inadequate health care, even where resulting COVID-19 infections, do not fall within the purview of the PREP Act. More specifically, numerous courts have held that the PREP Act does not prevent a plaintiff from bringing state law claims based on an alleged failure to use covered countermeasures. See, e.g., Estate of Maglioli v. Andover Subacute Rehab. Ctr. I, 2020 WL 4671091, at *1, *9 (D. N.J. Aug. 12, 2020) (holding that the failure to “observe a wide range of appropriate safety precautions” “would not be preempted by the PREP Act, which is designed to protect those who employ countermeasures, not those who decline to employ them”); Jackson, 2020 WL 4815099, at *8 (holding the PREP Act does not apply to “the non-administration or non-use of covered countermeasures” and concluding that the PREP Act did not apply to the plaintiff's claims because “[d]efendants fail[ed] to point to any claim in the complaint where Plaintiff alleges that the administration or use of any of these things [covered countermeasures] caused the decedent's death”). As the court in Stone emphasized, “[t]hese cases plainly hold that the PREP Act does not ‘wholly displace' state law claims that implicate healthcare entities and COVID-19.” Stone, 2021 WL 1163572, at *5 (citing Parker v. St. Jude Operating Co., LLC, 2020 WL 8362407, at *5 (D. Or. Dec. 28, 2020); Beneficial Nat'l Bank, 539 U.S. at 8).
Nor is the second prong of the Ninth Circuit's complete preemption test satisfied; the PREP Act does not provide a substitute cause of action for Plaintiff's claims based on Defendants' alleged negligence. See Estate of McCalebb, 2021 WL 911951. “Instead, when applicable, the PREP Act provides immunity to defendants on state law negligence claims.” Parker, 2020 WL 8362407, at *5. As the district court in Estate of McCalebb, recently explained:
Other than for willful misconduct, Congress provided no federal remedy that could be pursued through a federal cause of action. Instead, Congress established an emergency fund to provide adequate compensation to eligible individuals for covered injuries directly caused by the administration or use of a covered countermeasure. The HHS Secretary is responsible for establishing procedures to administer this compensation program. The Secretary's determination of eligibility and compensation under the program is final and not subject to judicial review.
In this case, Plaintiffs have brought negligence claims. If their negligence claims were preempted, then Plaintiffs would have to look to the Secretary's compensation program for relief. Under Ninth Circuit law, such administrative relief is not the type of displacement remedy that triggers complete preemption. For purposes of complete preemption, the displacement remedy must supply a federal cause of action. An administrative remedy will not suffice because the complete-preemption doctrine rests on the theory that any state claim within its reach is transformed into federal claims. This transformation is the source of original federal jurisdiction by supplying a federal cause of action.
The PREP Act does not create original federal jurisdiction over a covered claim for negligence or recklessness. On the contrary, Congress precluded it by vesting exclusive jurisdiction in the HHS Secretary. In this circumstance, allowing removal to federal court on complete-preemption grounds is internally inconsistent: the district court must have jurisdiction for removal to be proper, but the court must then dismiss the removed case because only the administrative agency, not federal courts, have primary jurisdiction. Thus, the PREP Act does not completely preempt such covered claims.2021 WL 911951, at * 4 (internal quotations, citations, footnotes, and alterations omitted). Thus, the PREP Act does not appear to satisfy the Ninth Circuit's two-pronged complete preemption test.
More fundamentally, unlike the rare three instances in which Congress has found that the need for uniformity of federal law is so compelling as to require complete preemption of the field to the total exclusion of state law (see City of Oakland, 969 F.3d at 905-06), there is no indication of such Congressional intent here. The purpose of the PREP Act is specific - to grant the Secretary of HHS the authority to devise specific countermeasures in the face of a public health crisis and encourage implementation of those countermeasures by providing immunity for providers who implement those countermeasures.
It is therefore not surprising that nearly all courts addressing this issue have consistently held that the PREP Act does not satisfy these requirements for complete preemption. See, e.g., Robin Roebuck v. Mayo Clinic, No. 21-cv-00510, 2021 WL 1851414, at *5 (D. Ariz. May 10, 2021) (“[T]he Court joins the growing consensus finding that the PREP Act is not a complete preemption statute. The PREP Act does not satisfy the Ninth Circuit's complete preemption test because it does not completely replace state law claims related to COVID-19 and does not provide a substitute cause of action for [Plaintiff's] medical negligence claim.”); Golbad v. GHC of Canoga Park, No. 2:21-cv-01967, 2021 WL 1753624, at *2 (C.D. Cal. May 4, 2021) (“[S]imply put, the PREP Act does not satisfy the Ninth Circuit's two-part complete preemption test.”); Padilla v. Brookfield Healthcare Ctr., No. 21-cv-2062, 2021 WL 1549689, at *4 (C.D. Cal. Apr. 19, 2021) (“Nearly every other federal court addressing the issue of complete preemption has found that the PREP Act is not a statute with complete preemptive effect.”); see also Bolton v. Gallatin Ctr. for Rehab. & Healing, LLC, No. 3:20-cv-00683, 2021 WL 1561306, at *7 (M.D. Tenn. Apr. 21, 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, or at least does not have such an effect on claims like those presented here.”) (internal quotation marks and citation omitted).
To be sure, in the Fourth Amendment to the Declaration, the HHS Secretary: (1) opined that “[t]here are substantial federal legal and policy issues, and substantial federal legal and policy interests within the meaning of Grable & Sons Metal Products, Inc. v. Darue Eng'g. & Mf'g., 545 U.S. 308 (2005), in having a uniform interpretation of the PREP Act;” and (2) clarified that the Declaration “must be construed in accordance with the Department of Health and Human Services (HHS) Office of the General Counsel (OGC) Advisory Opinions on the Public Readiness and Emergency Preparedness Act and the Declaration (Advisory Opinions)” and expressly incorporated the Advisory Opinions for that purpose. 85 Fed. Reg. at 79191, 79197. On January 8, 2021, OGC issued an Advisory Opinion, which opined 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.” HHS OGC Advisory Opinion 21-01 at 2. The January 8, 2021 Advisory Opinion also opined that “the Fourth Amendment to the Secretary's Declaration supports the Grable doctrine.” Id. at 4. The Advisory Opinion, however, cautions that “[i]t is not a final agency action or a final order. It does not have the force or effect of law.” Id. at 5.
The Department of Health & Human Services, Advisor Opinion 21-01 On the Public Readiness and Emergency Preparedness Act Scope of Preemption Provision (Jan. 8, 2021), https://www.hhs.gov/guidance/sites/default/files/hhs-guidance-documents/2101081078-joadvisory-opinion-prep-act-complete-preemption-01-08-2021-final-hhs-web.pdf.
However, the Court is not persuaded this Opinion changes the analysis. “[T]he Office of the General Counsel interpretation is not entitled to Chevron deference.” Dupervil v. Alliance Health Operations, 516 F.Supp.3d 238, 252 (E.D. N.Y. Feb. 2, 2021). It is not a duly promulgated regulation interpreting the statute. 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). Instead, it is entitled only to the limited difference afforded by Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). See Id. (In applying the Fair Labor Standards Act, the Supreme Court explained that “[w]e consider that the rulings, interpretations and opinions of the Administrator under this Act, while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgement to which courts and litigants may properly resort for guidance. [However, ] [t]he weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.”). The Advisory Opinion is not persuasive. Both the Supreme Court and the Ninth Circuit have held that a federal statute is completely preemptive only where it provides an exclusive federal cause of action; yet, the Advisory opinion fails to cite any case law for its proposition that an exclusive federal administrative remedy is sufficient to implicate complete preemption. The Advisory Opinion “lacks the ‘power to persuade.'” Dupervil, 516 F.Supp.3d at 252 (quoting Skidmore, 323 U.S. at 140); see also Evon Smith v. Colonial Care Center, Inc., 2021 WL 1087284, at *6 (C.D. Cal. Mar. 19, 2021) (finding that the defendants' argument that the plaintiff's claims were completely preempted because of the Advisory Opinion was contrary to law and as such, “the OGC's January 8, 2021 Advisory Opinion lacks the power to persuade”); Estate of McCalebb, 2021 WL 911951, at *3 (“Neither the Secretary nor the OGC provides any significant analysis of Grable's narrow holding and its two-pronged test. Deference to the Secretary's jurisdictional assertion is not due, and adherence to his conclusory assertion is not warranted.”).
Defendants also rely on Garcia, 522 F.Supp.3d 734 and Rachal, 2021 U.S. Dist. LEXIS 105847 in asserting complete preemption. Opp'n at 11. Neither are persuasive. In denying the Plaintiff's motion for remand, the district court in Garcia heavily relied on the OGC's Advisory Opinion to find that the PREP act was a complete preemption statute. See Garcia, 522 F.Supp.3d 745 (“because the OGC stated that the PREP Act is a complete preemption statute, the Court finds that an adequate basis for federal question jurisdiction exists” and did not decide whether “federal question jurisdiction exists because of either the Grable [d]octrine or because the claims fall squarely within the PREP Act.”). For the reasons stated above, this Court disagrees. See Golbad, 2021 WL 1753624, at *3 (noting that “[t]he court in Garcia deferred to the HHS Secretary's opinion of PREP Act complete preemption, but failed to consider the Ninth Circuit's two-part complete preemption test.”). In Rachal, the district court found that the defendants, a nursing and rehabilitative center, were “clearly ‘covered persons,' ” under the PREP Act, but that it was “not clear from the face of the petition that the entirety of the claims at issue relate to [the] [d]efendants' administration or use of covered countermeasures.” Rachal, 2021 U.S. Dist. LEXIS 105847, at *9. On that basis, the Rachal court denied the defendants' motion to dismiss and ordered the parties to engage in a 90-day discovery period, during which the parties were directed to conduct discovery as to the nature of the plaintiff's claims, including the defendant's specific acts of alleged misconduct and whether those acts were “covered countermeasures” under the PREP Act. Id. at *14. Notably, the district court in Rachal did not address whether the PREP Act is a complete preemption statute.
The Court concludes complete preemption does not apply.
B. Imbedded Federal Question Under the Grable Doctrine
Under the Grable doctrine, in order for a state law claim to provide federal question jurisdiction, the “state law claim [must] necessarily raise a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities.” Grable & Sons Metal Products, Inc., 545 U.S. at 314. Further, the Supreme Court has stated “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." Gunn v. Minton, 568 U.S. 251, 258 (2013). “[I]t is not enough that the federal issue be significant to the particular parties in the immediate suit; that will always be true when the state claim ‘necessarily raise[s]' a disputed federal issue, as Grable separately requires. The substantiality inquiry under Grable looks instead to the importance of the issue to the federal system as a whole.” Gunn, 568 U.S. at 260 (italics in original).
District courts have consistently rejected healthcare providers' or assisted living facilities' arguments that claims arising out of patients or residents getting COVID-19 raise embedded federal issues with respect to the PREP Act. See, e.g., Stone, 2021 WL 1163572, at *7 (“The federal issue relates to Defendant's defense, not the claims alleged by Plaintiff. As such, the federal issue is not necessarily raised.”); Lyons v. Cucumber Holdings, LLC, 520 F.Supp.3d 1277, 1288 (“the federal issue raised relates to Defendants' defense” so the court concluded that it did not have subject matter jurisdiction based on embedded federal question grounds); Estate of McCalebb, 2021 WL 911951, at *3 (“Defendant has not demonstrated that federal jurisdiction lies under Grable” and “Plaintiff' state claims do not require an interpretation, or challenge the constitutional validity, of a federal statute.”)
The Court agrees with these decisions. The Grable doctrine relies on the claims made by the plaintiff, not the defenses raised by the defendant. Plaintiffs have raised standard medical negligence and elder abuse claims arising under California law and those claims do not necessarily raise a federal issue. Defendants appear to be the only parties that raise a federal issue, for example in asserting their immunity defense under the PREP Act. Opp'n at 20-23. This is not enough to implicate Grable. “No federal issue is ‘necessarily raised' by Plaintiffs' complaint because an interpretation of the PREP Act is not an essential element of any of Plaintiffs' state law claims.” Hopman v. Sunrise Villa Culver City, No. 2:21-cv-01054, 2021 WL 1529964, at *6 (C.D. Cal. Apr. 16, 2021); see also Padilla, 2021 WL 1549689 (finding no subject matter jurisdiction under Grable based on PREP Act defense). Moreover, as noted above, issues raised by Plaintiffs that have no causal connection with any PREP Act countermeasures; nothing requires interpretation of the PREP Act. In any event, “a case may not be removed to federal court on the basis of a federal defense, including the defense of pre-emption, even if the defense is anticipated in the plaintiff's complaint, and even if both parties concede that the federal defense is the only question truly at issue.” Caterpillar Inc., 482 U.S. at 393.
Accordingly, it appears that this Court does not have subject matter jurisdiction based on an embedded federal question under Grable. See, e.g., Robertson, 2021 WL 764566, at * (D. Kan. Feb. 26, 2020) (“To be certain, Defendants intend to assert the PREP Act as a defense to Plaintiff's claim. But that is not enough.”); Dupervil, 516 F.Supp.3d at 258 (“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.”).
C. Federal Officer Removal
Federal officer removal is available under 28 U.S.C. § 1442(a) if “(a) [the removing party] is a ‘person' within the meaning of the statute; (b) there is a causal nexus between its actions, taken pursuant to a federal officer's directions, and plaintiff's claims; and (c) it can assert a ‘colorable federal defense.' ” Fidelitad, Inc. v. Insitu, Inc., 904 F.3d 1095, 1099 (9th Cir. 2018). This is an exception to the well-pleaded complaint rule, which typically requires a federal question to be pleaded in the complaint in order for the district court to have subject matter jurisdiction based on a federal question. See N.G. v. Downey Reg'l Med. Ctr., 140 F.Supp.3d 1036, 1039 (C.D. Cal 2015).
Here, there does not appear to be a dispute as to whether the removing parties (Defendants) are “persons” for purposes of the federal officer removal statute. The next inquiry is whether Defendants acted “pursuant to a federal officer's directions, ” whether there is a “causal nexus” between Defendants' actions and Plaintiffs' claims, and whether Defendants can assert a colorable federal defense. Notably, Defendants point to government regulations and public directives regarding the response to the COVID-19 pandemic. The court in Fidelitad stated that, “[f]or a private entity to be acting under a federal officer, the private entity must be involved in an effort to assist, or to help carry out, the duties or tasks of the federal superior.” Fidelitad, Inc., 904 F.3d at 1095. However, a “private firm's compliance (or noncompliance) with federal laws, rules, and regulations does not by itself fall within the scope of the statutory phrase ‘acting under' a federal ‘official.' And that is so even if the regulation is highly detailed and even if the private firm's activities are highly supervised and monitored.” Watson v. Philip Morris Companies, Inc., 551 U.S. 142, 153 (2007).
Defendants argue that the government regulations and public directives implemented during the COVID-19 pandemic are tantamount to directions from a federal officer. See Notice of Removal ¶¶ 51-61. For instance, Defendants argue that at “all relevant times [Defendant] Orinda [Care Center]-as part of the nation's critical infrastructure-was acting at the specific direction of federal authorities to address the on-going federal effort and national state of emergency to contain the COVID-19 pandemic and prevent the spread of the virus. Id. ¶ 62. Here, Defendants fail to establish that their alleged conduct at issue in this case was “pursuant to a federal officer's directions.” See Stirling v. Minasian, 955 F.3d 795, 800 (9th Cir. 2020). Defendants point to only general regulations and directives regarding the provision of medical services, and argue that, as a skilled nursing facility, they are subject to a high degree of federal regulation. Reply at 27-31. As noted above, there appears to be no causal relationship between the claims in this suit and the implementation of Covered Countermeasures by Defendants.
Unsurprisingly, similar arguments have been consistently rejected by district courts considering similar claims against assisted living facilities based on their actions during the COVID-19 pandemic. See, e.g., Nava v. Parkwest Rehab. Ctr. LLC, No. 2:20-cv-07571, 2021 WL 1253577, at *2 (C.D. Cal. Apr. 5, 2021) (holding that “general regulations and directives” and being “subject to a high degree of federal regulation” is not enough for federal officer removal); Saldana, 2020 WL 6713995, at *3 (rejecting the defendants' argument that “in taking steps to prevent the spread of COVID-19, [they] did so in compliance with CDC and CMS directives, which were aimed at helping achieve the federal government's efforts at stopping or limiting the spread of COVID-19” as insufficient for federal officer removal because “[t]he directions Defendants point to are general regulations and public directives regarding the provision of medical services.”); Martin, 2020 WL 5422949 (finding that the COVID-19 directives that the defendant relied on were nothing more than “general regulations and public directives regarding the provision of medical services”) (quoting Watson, Inc., 551 U.S. at 153).
Accordingly, the Court finds that Defendants have not established that removal is proper based on the federal officer removal statute and GRANTS Plaintiffs' Motion to Remand.
IV.DEFENDANTS' REQUEST FOR JUDICIAL NOTICE
On August 2, 2021, Defendants filed a Request for Judicial Notice in support of the Notice of Removal, specifically requesting that the Court take judicial notice of: Ex. 1- Plaintiff's Complaint for Damages filed on May 13, 2021; Ex. 2 - United States, Department of Health and Human Services (“HHS”) “Notice of Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19.” 85 Fed. Reg. 52, 15198 (Mar. 17, 2020); Ex. 3 - HHS “Amendment to Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19.” 85 Fed. Reg. 73, 21012 (Apr. 15, 2020); Ex. 4 - HHS “Second Amendment to Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19.” 85 Fed. Reg. 110, 35100 (June 8, 2020); Ex. 5 - HHS “Fourth Amendment to the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19.” 85 Fed. Reg. 237, 79190 (Dec. 9, 2020); Ex. 6 - HHS August 14, 2020, correspondence from Robert Charrow, General Counsel for the Office of the Secretary of HHS, to Thomas Barker of Foley Hoag, LLP; Ex. 7 - HHS Advisory Opinion 20-04 issued October 22, 2020 as amended October 23, 2020, by General Counsel Robert Charrow; Ex. 8 - HHS Advisory Opinion on the Public Readiness and Emergency Preparedness Act and The March 10, 2020 Declaration Under the Act, April 17, 2020, as modified on May 19, 2020, by General Counsel Robert Charrow; Ex. 9 - HHS Advisory Opinion 21-01, PREP Act Scope of Preemption Provision, issued January 8, 2021, by General Counsel Robert Charrow; Ex. 10 - United States, Food and Drug Administration (“FDA”) List of Covered Countermeasures subject to Emergency Use Authorizations by the United States FDA; Ex. 11 - United States, Centers for Disease Control and Prevention (“CDC”) CDC Health Advisory dated Jan. 8, 2020, “Outbreak of Pneumonia of Unknown Etiology (PUE) in Wuhan, China”; Ex. 12 - CDC Update and Interim Guidance dated January 17, 2020, “Outbreak of 2019 Novel Coronavirus (2019-nCoV) in Wuhan, China” with guidance to state and local health departments and healthcare providers; Ex. 13 - CDC Interim Infection Prevention and Control Recommendations for Patients with Known or Patients Under Investigation for 2019 Novel Coronavirus (2019-nCoV) in a Healthcare Setting, dated January 24, 2020; Ex. 14 - CDC Health Update and Interim Guidance on Outbreak of 2019 Novel Coronavirus (2019-nCoV), dated Feb. 1, 2020; Ex. 15 - State of California, Health and Human Services Agency, CA Department of Public Health (“CDPH”). All Facilities Letters (AFLs) disseminating information and directives issued by the CDC with respect to identification of Patients Under Investigation and infection prevention and control; AFLs 20-09, 20-10, 20-11, 20-13, and 20-15; Ex. 16 - United States, Centers for Medicare and Medicaid Services (“CMS”). Memorandum QSO 20-09-ALL dated Feb. 6, 2020, instructing healthcare providers to adhere to CDC directives regarding the use of standard, contact, and airborne precautions when interacting with Persons Under Investigation; Ex. 17 - CDC Update and Interim Guidance on the Outbreak of 2019 Novel Coronavirus (COVID-19), dated Feb. 28, 2020; Ex. 18 - CDC “Strategies to Prevent the Spread of COVID-19 in Long-Term Care Facilities (LTCF)”, dated Mar. 1, 2020; Ex. 19 - CDPH All Facilities Letter AFL 20-17, dated Mar. 3, 2020; Ex. 20 - United States, Centers for Medicare and Medicaid Services (“CMS”) CMS Memorandum QSO 20-14-NH to State Survey Agency Directors regarding “Guidance for Infection Control and Prevention of Coronavirus Disease 2019 (COVID-19) in Nursing Homes, ” dated Mar. 4, 2020; Ex. 21 - CDC “Updated Guidance on Evaluating and Testing Persons for Coronavirus Disease 2019 (COVID-19)”, dated Mar. 8, 2020; Ex. 22 - CDC “Interim Infection Prevention and Control Recommendations for Patients with Suspected or Confirmed Coronavirus Disease 2019 (COVID-19) in Healthcare Settings”, dated Mar. 10, 2020; Ex. 23 - CMS Memorandum QSO 20-17-ALL regarding “Guidance for Use of Certain Industrial Respirators by Health Care Personnel”, dated Mar. 10, 2020; Ex. 24 - CDPH All Facilities Letter AFL 20-22.1 regarding “Guidance for Limiting the Transmission of COVID-19 in Long-Term Care Facilities”, dated Mar. 11, 2020; Ex. 25 - CMS Memorandum QSO-20-14-NH regarding “Guidance for Infection Control and Prevention of Coronavirus Disease 2019 (COVID-19) in Nursing Homes (REVISED)”, dated March 13, 2020; Ex. 26 - CDC documents containing strategies for optimizing limited supplies of eye protection, isolation gowns, N95 respirators, and face masks, dated Mar. 17, 2020; Ex. 27 -CMS Memorandum QSO 20-20-ALL regarding “Prioritization of Survey Activities”, dated Mar. 20, 2020; Ex. 28 - CDC publication entitled “Preparing for COVID 19: Long-term Care Facilities, Nursing Homes”, dated Mar. 21, 2020; Ex. 29 - CDC “COVID-19 Long-Term Care Facility Guidance”, dated Apr. 2, 2020; Ex. 30 - HHS “Fifth Amendment to Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19”, effective Jan. 28, 2021; Ex. 31 - Statement of Interest of United States submitted in Bolton v. Gallatin Center for Rehabilitation & Healing, LLC, No. 3:20-cv-00683 (M.D. Tenn.), dated Jan. 21, 2021; Ex. 32 - United States District Court, Central District of California. Civil Minutes dated Feb. 10, 2021. [IN CHAMBERS] Order Regarding Plaintiff's Motions for Remand and Defendant's Motion to Dismiss Complaint in Garcia v. Welltower OpCo Group LLC, No. 8:20- CV-02250, at *8-9 (C.D. Cal. Feb. 10, 2021); Ex. 33 - HHS “Sixth Amendment to Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, effective Feb. 20, 2021; Ex. 34 - HHS “Seventh Amendment to Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, effective Mar. 11, 2021. Defs. RJN, Docket No. 9.
Notably, Defendants failed to attach these documents as exhibits to their request for judicial notice. See Defs. RJN, Docket No. 9. However, the Court can properly take judicial notice of these document because this information was made publicly available by government entities and neither party disputes the authenticity. See Fed. R. Evid. 201; Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998-99 (9th Cir. 2010) (“It is appropriate to take judicial notice of this information, as it was made publicly available by government entities . . ., and neither party disputes the authenticity . . . or the accuracy of the information displayed therein.”). Accordingly, this Court GRANTS Defendants' request for judicial notice.
V.CONCLUSION
In light of the foregoing, the Court finds that Defendants have failed to carry their burden to show removal was proper. The Court therefore GRANTS Plaintiffs' Motion to Remand the matter to the Contra Costa County Superior Court and DENIES Defendants' Motion to Dismiss as moot. Additionally, in granting the motion for removal, the Court makes clear that it makes no decision as to whether Plaintiffs' 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 Dupervil, 516 F.Supp.3d at 257.
This order disposes of Docket Nos. 8 and 18.
IT IS SO ORDERED