Declaring “There is no COVID-19 exception to federalism,” the 3rd Circuit Court of Appeals affirmed the district court’s dismissal of two negligence and wrongful death cases that nursing home defendants had moved from state court to federal court. Estate of Joseph Maglioli, et al. v. Alliance HC Holdings LLC, et al, Nos. 20-2833 and 20-2834 (3rd Cir. Oct. 20, 2021). Like the US District Court, the appellate panel rejected the facilities’ claim that the federal Public Readiness and Emergency Preparedness (PREP) Act gives facilities immunity from litigation during the COVID public health emergency.
In the lawsuits that they filed in state court, plaintiffs alleged that the facilities failed to take appropriate measures to protect them from COVID-19 and that the residents’ deaths were a result of facilities’ failure and/or medical malpractice. The 3rd Circuit notes that similar lawsuits against nursing facilities have been filed across the country during the pandemic, that many were removed to federal court by the nursing facilities, and that “Nearly every federal district court to confront these cases has dismissed for lack of jurisdiction and remanded to the state court.” The 3rd Circuit is the first appellate court to consider the issue.
The 3rd Circuit panel:
(1) rejected the nursing homes’ argument that it defer to the agency’s interpretation of the PREP Act, noting that “HHS is not delegated authority under the PREP Act to interpret the scope of federal courts’ jurisdiction;”
(2) held that the facilities cannot rely on the federal-officer removal statute, 28 U.S.C. §1442(a)(1), because they “were not ‘acting under’ the United States, its agencies, or its officers;” and
(3) rejected the argument that the PREP Act “is so pervasive that the estates’ state -law negligence claims are really federal claims under the PREP Act, and are thus removable to federal court [italics in original].”
The 3rd Circuit held “only that (1) the estates’ negligence claims based on New Jersey law do not fall under the PREP Act’s narrow cause of action for willful misconduct, and (2) the PREP Act’s compensation fund is not an exclusive federal cause of action triggering removal jurisdiction.”
The 34-page decision is available at http://www2.ca3.uscourts.gov/opinarch/202833p.pdf
November 4, 2021 – T. Edelman