Ricardo Saldana died at Glenhaven Healthcare in California on April 13, 2020, allegedly from COVID-19. Four surviving family members sued the nursing facility in California Superior Court, alleging that the facility failed to protect Saldana from the virus. Plaintiffs stated four causes of action: elder abuse, willful misconduct, custodial negligence, and wrongful death. The facility removed the case to federal district court in June 2020. The court granted plaintiffs’ motion to remand the case to Superior Court. The Ninth Circuit Court of Appeals affirms the district court’s decision, on three grounds. Saldana v. Glenhaven Healthcare, LLC, No. 20-56194 (9th Cir. Feb. 22, 2022).
First, addressing the federal officer removal statute, 28 U.S.C. §1442(a)(1), the Ninth Circuit panel describes the federal agency’s communications as “nothing more than regulations and recommendations for nursing homes.” The panel concludes, “Without more than government regulations and recommendations, Glenhaven has failed to establish that it was ‘acting under’ a federal official, and it has not identified a duty of the federal government that it performed.” Similarly, “Glenhaven’s status as a critical infrastructure entity does not establish that it acted under a federal officer or agency, or that it carried out a government duty.”
Second, the Court rejects the facility’s argument that plaintiffs’ claims are completely preempted by the Public Readiness and Emergency Preparedness (PREP) Act, 42 U.S.C. §§247d-6, 247d-63, a 2005 federal law that provides immunity from liability to “covered persons” for using “covered countermeasures.” The sole exception to immunity is for cases of “willful misconduct,” which may be brought only in federal district court in the District of Columbia. The panel finds that the law creates federal court jurisdiction “only for willful misconduct claims and not claims for negligence and recklessness. §247d-6d(c)(1)(B).”
Finally, the panel finds that the district court did not have jurisdiction under the embedded federal question doctrine. Plaintiffs’ claims are raised under state law “and do not raise questions on federal law on the face of the complaint.”
In October 2021, the Third Circuit similarly rejected nursing homes’ arguments that the PREP Act gives federal courts jurisdiction over claims that would ordinarily be brought in state court. Estate of Joseph Maglioli v. Alliance Holdings, LLC, No. 20-2833 (3rd Cir. Oct. 21, 2021).
A similar case involving a Texas nursing facility is pending in the Fifth Circuit.
March 3, 2022 – T. Edelman
 The Third Circuit decision is available at http://www2.ca3.uscourts.gov/opinarch/202833p.pdf and discussed in “Affirmed: Negligence and Wrongful Death Cases Against Nursing Homes During COVID-19 Pandemic Belong in State Court” (CMA Alert, Nov. 4, 2021), https://medicareadvocacy.org/state-courts-will-decide-snf-covid-suits/