MAGLIOLI v. ANDOVER SUBACUTE REHABILITATION I

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

ESTATE OF JOSEPH MAGLIOLI, BERNARD

MAGLIOLI, DANTE MAGLIOLI, AND

ESTATE OF DALE AND PETRY Civ. No. 20-6605 (KM)(ESK)

CHRISTOPHER PETRY,

Civ. No. 20-6985 (KM)(ESK)

Plaintiffs,

OPINION

v.

ANDOVER SUBACUTE REHABILITATION

CENTER I; ANDOVER SUBACUTE

REHABILITATION CENTER II; ALTITUDE

HEALTH SERVICES INC.; ALTITUDE

INVESTMENTS, LTD; ALLIANCE

HEALTHCARE; CHAIM “MUTTY”

SCHEINBAUM; LOUIS SCHWARTZ; JOHN

AND JANE DOES 1-10; AND ABC AND XYZ

CORPORATIONS 1-10,

Defendants.

ESTATE OF WANDA KAEGI AND VICTOR

KAEGI, ESTATE OF STEPHEN BLAINE AND

SHARON FARRELL,

Plaintiffs,

v.

ANDOVER SUBACUTE REHABILITATION

CENTER I; ANDOVER SUBACUTE

REHABILITATION CENTER II; ALTITUDE

HEALTH SERVICES INC.; ALTITUDE

INVESTMENTS, LTD; ALLIANCE

HEALTHCARE; CHAIM “MUTTY”

SCHEINBAUM; LOUIS SCHWARTZ; JOHN

AND JANE DOES 1-10; AND ABC AND XYZ

CORPORATIONS 1-10,

Defendants.

KEVIN MCNULTY, U.S.D.J.:

This case, irrespective of fault, is a sad one. These related actions assert

state-law claims of negligence, wrongful death, and medical malpractice on

behalf of residents and patients at Defendants’ nursing care facilities. Plaintiffs

filed these actions in New Jersey state court. Defendants then removed the

actions under 28 U.S.C. §§ 1441 and 1442, primarily asserting that Plaintiffs’

claims were preempted by the Public Readiness and Emergency Preparedness

(“PREP”) Act, and secondarily asserting that Defendants were entitled to a

federal forum as “federal officers” or the equivalent. Plaintiffs have now moved

to remand. (6605 Action, DE 6, DE 7; 6985 Action, DE 5, DE 6)

For the reasons explained in this opinion, I will grant Plaintiffs’ motions

to remand the case to their chosen state forum.

I. Summary1

The facts alleged in this recently-filed complaints are assumed to be true

for present purposes. They have not, of course, been tested by any fact finder.

A. The parties

The allegations of the complaints arise from the treatment of residents at

two nursing facilities in Andover, New Jersey. “Defendant Andover Subacute

Rehabilitation Center I is located at: 1 Obrien Lane, Lafayette Township, NJ

07848.” (6605 2AC ¶ 3) “Defendant Andover Subacute Rehabilitation Center II

is located at: 99 Mulford Road, Lafayette Township, New Jersey 07848.” (Id. ¶

1 Citations to the record will be abbreviated as follows. Citations to page numbers

refer to the page numbers assigned through the Electronic Court Filing system, unless

otherwise indicated:

“DE” = Docket entry number in this case.

“6605 2AC” = The Second Amended Complaint filed by Plaintiffs in 20-cv-6605.

(DE 1-1)

“6985 AC” = The Amended Complaint filed by Plaintiffs in 20-cv-6985. (DE 1-1)

“6605 Action” = The 2:20-cv-6605-KM-ESK Action.

“6985 Action” = The 2:20-cv-6985-KM-ESK Action.

4) “Defendant Alliance Healthcare is a New Jersey domiciled company, with a

business address at:1382 Lanes Mill Road, Lakewood, New Jersey 08701, USA,

and is owned and/or operated by Defendant Chaim ‘Mutty’ Scheinbaum and

Defendant Louis Schwartz.” (Id. ¶ 6)

Plaintiffs were all residents or patients at Defendants’ facilities and died

while in their care, allegedly as a result of Defendants’ failure to exercise due

care with respect to coronavirus infections. (Id. ¶ 2)

B. COVID-19

Beginning in 2019, the virus now known as COVID-19 began spreading

throughout the world. In January 2020, Defendants learned of the virus. (Id. ¶

9) In February 2020, news reports reflected that residents at a healthcare

facility in Washington State became infected with the virus and several

residents died. (Id. ¶ 11)

By now, the virus, the resulting pandemic, and the tragic consequences,

particularly for persons in close quarters like nursing homes, are familiar to all.

COVID-19 is an acute respiratory disease caused by the SARS-CoV-2

betacoronavirus or a virus mutating therefrom. The COVID-19 virus can be

transmitted even by persons who display no symptoms. It spreads “mainly

through close contact [within about six feet] from person-to-person in

respiratory droplets” and from contact with contaminated surfaces. See Ctrs.

for Disease Control and Prevention, How to Protect Yourself & Others,

https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-

sick/prevention.html (last visited July 20, 2020). To thwart the spread of the

illness, the Centers for Disease Control and Prevention (“CDC”) recommend

social distancing (staying at least six feet away from others), wearing cloth face

coverings when around others, regular disinfection of “frequently touched

surfaces,” and washing hands often with soap and water, among other

practices. Id. Obviously, however, the “the best way to prevent illness is to

avoid being exposed to this virus.” Id. There are treatments, but currently there

is no vaccine or cure. Persons with certain chronic underlying medical

conditions are at a greater risk of being affected by COVID-19. (6605 2AC ¶ 10)

C. Outbreak at the Andover Centers

On March 26, 2020, the Andover Centers fell victim to a COVID-19

outbreak. (Id. ¶ 12) Nevertheless, Plaintiffs allege, “Defendants failed to take

the proper steps to protect the residents and/or patients at their facilities from

the Covid-19 virus.” (Id. ¶ 13) Management, say Plaintiffs, at first provided only

a limited number of masks to employees of the facilities, restricting them to the

registered nurses. (Id. ¶ 14) Meanwhile, others who interacted with residents

and patients, such as housekeepers, therapists, and nursing assistants, were

not provided masks. (Id.)

Plaintiffs more generally allege, however, that Defendants are liable for

failing to observe a wide range of appropriate safety precautions, specifically:

failing to monitor outside visitors to the facilities, failing to monitor

food preparation and distribution, failing to monitor employees,

and failing to monitor other residents, etc., when the same were

dealing with the residents and/or patients at the facilities in order

to prevent the spread of the Covid-19 virus therein; furthermore,

said Defendants breached their duty to Wanda Kaegi, Stephen

Blaine and the residents and/or patients at the Andover Subacute

Rehabilitation Centers I and II by failing to have (or implement)

proper protocols and procedures, and/or failing to have or provide

personal protective equipment, in place for the prevention of the

spread of the Covid-19 virus, and/or by failing to properly execute

existing protocols and procedures set in place to prevent the

spread of the Covid-19 virus.

(See, e.g., 6985 AC ¶¶ 28, 32, 36; see also 6605 2AC ¶¶ 28, 32, 36)

Joseph Maglioli died on April 9, 2020, and Dale Petry died on April 15,

2020, both from COVID-19 infections. (Id. ¶ 15) Wanda Kaegi died on May 2,

2020 and Stephen Blaine died on April 11, 2020, both from COVID-19

infections. (6985 AC ¶ 15) The complaints allege that at least 50 other patients

were infected at the Andover facilities and died as a result of COVID-19. (6605

2AC ¶ 16; 6985 AC ¶ 16) Plaintiffs attribute all of these deaths to the Andover

facilities’ failure to take proper protective measures. (Id. ¶ 17)

The complaints assert the following claims:

Count 1: Negligence – Wrongful death as to all known Defendants

Count 2: Negligence – Wrongful death as to all fictitious Defendants who

remain unknown.

Count 3: Negligence – Medical Malpractice as to all unknown doctors,

nurses, and medical professionals licensed in New Jersey who

treated Plaintiffs.

Count 4: Negligence as proximate cause of incident/injury

Count 5: Punitive Damages

D. Procedural History

On May 19, 2020, Plaintiffs filed their complaints in the Superior Court

of New Jersey, Law Division, Sussex County. A week later, on May 26, 2020,

Plaintiffs filed amended complaints in both actions.2

On May 29, 2020, Defendants filed a notice of removal of the 6605 Action

and on June 9, 2019, Defendants filed a notice of removal of the 6985 Action.

Both notices of removal recited that the complaints alleged medical negligence

for failure to protect plaintiffs from COVID-19 because Defendants did not

properly administer and utilize personal protective equipment. The complaints

do not in so many words set forth a federal-law cause of action. Nevertheless,

say Defendants, this Court has original jurisdiction pursuant to 28 U.S.C. §

1331 because this action is preempted by a federal statute, namely the Public

Readiness and Emergency Preparedness Act, 42 U.S.C. §§ 247d-6d, 247d-

6e(2006) as modified by the Preparedness Act for Medical Countermeasures

Against COVID-19, 85 Fed. Reg. 15198 (Mar. 17, 2020) (together, for

convenience, the “PREP Act”). (6605 Action, DE 1 at 3-4) Defendants removed

the actions on the basis that the PREP Act “provides liability protections for

pandemic and epidemic products and security countermeasures,” including

“respiratory protective devices.” Defendants state that they are “covered

2 Plaintiffs in the 6605 Action filed an Amended Complaint and a Second

Amended Complaint on the same day, May 26, 2020. (See 6605 Dkt. at DE 1-1)

persons” under the PREP Act and that such “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’

during a health emergency. 42 U.S.C. § 247d–6d(a)(1).” (Id. at 4-5)

Defendants also removed the actions under 28 U.S.C. § 1442(a)(1)

because “‘(1) Defendants are ‘persons’ within the meaning of the statute; (2) the

Plaintiffs’ claims are based upon Defendants’ conduct ‘acting under’ the United

States, its agencies, or its officers; (3) the Plaintiffs’ claims are ‘for, or relating

to’ an act under color of federal office; and (4) Defendants raise a colorable

federal defense to the Plaintiff’s claims.’” (DE 1 at 7 (citing Papp v. Fore-Kast

Sales Co., 842 F.3d 805, 811 (3d Cir. 2016)))

On June 12, 2010, Plaintiffs filed motions to remand these matters to

state court. (6605 Action, DE 6, DE 7; 6985 Action, DE 5, DE 6) Defendants

oppose the motions. (6605 Action, DE 8; 6985 Action, DE 7)

On July 23, 2020, Plaintiffs filed a stipulation of dismissal as to the

Altitude Defendants, which I so-ordered. (6605, DE 10, DE 12; 6985, DE 9, DE

10)

II. Discussion

A. Removal under § 1441

i. Legal Standard

A defendant may remove “any civil action brought in a State court of

which the district courts of the United States have original jurisdiction.” 28

U.S.C. § 1441(a). District courts have “original jurisdiction of all civil actions

arising under the Constitution, laws, or treaties of the United States.” 28

U.S.C. § 1331 (concerning federal question jurisdiction).3

3 Jurisdiction is not claimed under 28 U.S.C. § 1332, and it does not appear from

the allegations that plaintiffs and defendants are of diverse state citizenship. All

references to federal subject matter jurisdiction in this opinion are to federal-question,

or arising-under, jurisdiction under 28 U.S.C. § 1331.

A party’s right to remove a civil action is “determined according to the

plaintiff’s pleading at the time of the petition for the removal.” Pullman Co. v.

Jenkins, 305 U.S. 534, 537, 59 S. Ct. 347 (1939). “[A] subsequent amendment

to the complaint after removal designed to eliminate the federal claim will not

defeat federal jurisdiction.” Seawright v. Greenberg, 233 F. App’x 145, 148 (3d

Cir. 2007). Nevertheless, a removed action must be remanded (just as any

federal action must be dismissed) “[i]f at any time before final judgment it

appears that the district court lacks subject matter jurisdiction.” 28 U.S.C. §

1447(c). Removal is “strictly construed, with all doubts to be resolved in favor

of remand.” Brown v. JEVIC, 575 F.3d 322, 326 (3d Cir. 2009) (citations

omitted); see also Samuel-Bassett v. KIA Motors Am., Inc., 357 F.3d 392, 396,

403 (3d Cir. 2004) (citations omitted). The removing party bears the burden of

showing that removal is appropriate. See Frederico v. Home Depot, 507 F.3d

188, 193 (3d Cir. 2007).

The “well-pleaded complaint” rule dictates that a plaintiff is ordinarily

entitled to its chosen state-court forum so long as its complaint does not allege

a federal claim on its face. Dukes v. U.S. Healthcare, 57 F.3d 350, 353 (3d Cir.

1995) (citing Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Tr. for S.

Cal., 463 U.S. 1, 27-28, 103 S. Ct. 2841 (1983) (“[A] defendant may not remove

a case to federal court unless the plaintiff’s complaint establishes that the case

arises under federal law.”), superseded by statute, 28 U.S.C. § 1441); see also

Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987) (“The presence or absence

of federal-question jurisdiction is governed by the ‘well-pleaded complaint rule,’

which provides that federal jurisdiction exists only when a federal question is

presented on the face of the plaintiff’s properly pleaded complaint.”). A party

bringing a claim is “the master of the claim,” and as such, “may avoid federal

jurisdiction by exclusive reliance on state law.” Caterpillar, 482 U.S. at 392.

Complete or “field” preemption, however, is an exception to the well-

pleaded complaint rule. “Congress may so completely preempt a particular

area, that any civil complaint raising this select group of claims is necessarily

federal in character. For 20 years, this Court has singled out claims pre-

empted by § 301 of LMRA for such special treatment.” Metro. Life Ins. Co. v.

Taylor, 481 U.S. 58, 63-64 (1987); see also Caterpillar Inc., 482 U.S. at 393

(“Once an area of state law has been completely pre-empted, any claim

purportedly based on that pre-empted state law is considered, from its

inception, a federal claim, and therefore arises under federal law.” (citations

and quotation marks omitted)).

ii. PREP Act

Defendants invoke the Public Readiness and Emergency Preparedness

Act.

[The PREP Act] authorizes the Secretary of Health and Human

Services (the Secretary) to issue a Declaration to provide liability

immunity to certain individuals and entities (Covered Persons)

against any claim of loss caused by, arising out of, relating to, or

resulting from the manufacture, distribution, administration, or

use of medical countermeasures (Covered Countermeasures),

except for claims involving ‘‘willful misconduct’’ as defined in the

PREP Act. Under the PREP Act, a Declaration may be amended as

circumstances warrant.

The PREP Act was enacted on December 30, 2005, as Public

Law 109–148, Division C, Section 2. It amended the Public Health

Service (PHS) Act, adding Section 319F–3, which addresses liability

immunity, and Section 319F–4, which creates a compensation

program. These sections are codified at 42 U.S.C. 247d–6d and 42

U.S.C. 247d–6e, respectively.

85 Fed. Reg. 21,012 (April 15, 2020).

The background provisions of the PREP Act state the following with

respect to such liability protections:

Subject to the other provisions of this section, 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 if a declaration under

subsection (b) has been issued with respect to such

countermeasure.

42 U.S.C. § 247d-6d(a)(1).

In March 2020, however, the Secretary of the Department of Health and

Human Services (“HHS”) published several such “declaration[s] under

subsection (b).” These were designed to provide immunity from liability for

certain activities related to medical countermeasures against the ongoing

COVID-19 pandemic. By declaration dated March 10, 2020, the definition of a

“covered countermeasure” was expanded to include

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 the transmission of SARS-CoV–2 or a

virus mutating therefrom, or any device used in the administration

of any such product, and all components and constituent

materials of any such product.

85 Fed. Reg. 15,198, 15,202 (March 17, 2020). Additional declarations in

March 2020 further expanded the definition of “countermeasures”:

The Coronavirus Aid, Relief, and Economic Security (CARES)

Act, Public Law 116–136 was enacted on March 27, 2020. The

CARES Act amended section 319F–3(i)(1)(D) of the PHS Act, first

added by the Families First Coronavirus Response Act, Public Law

116–127 on March 18, 2020. These amendments created a new

category of covered countermeasures eligible for liability immunity

under the PREP Act, namely, respiratory protective devices

approved by the National Institute for Occupational Safety and

Health (NIOSH) under 42 CFR part 84, or any successor

regulations, that the Secretary determines to be a priority for use

during a public health emergency declared under section 319 of

the PHS Act.

. . .

The Secretary is amending the March 10, 2020 Declaration

under the PREP Act to extend liability immunity to covered

countermeasures authorized under the CARES Act. This

amendment is made in accordance with section 319F–3 of the PHS

Act, which authorizes the Secretary to amend a PREP Act

declaration at any time.

. . .

As amended by the CARES Act, the PREP Act states that a

‘‘Covered Countermeasure’’ must be a ‘‘qualified pandemic or

epidemic product,’’ a ‘‘security countermeasure,’’ a drug, biological

product, or device authorized for emergency use in accordance

with sections 564, 564A, or 564B of the Federal Food, Drug, and

Cosmetic (FD&C) Act, or a respiratory protective device approved

by NIOSH under 42 CFR part 84, or any successor regulations,

that the Secretary determines to be a priority for use during a

public health emergency declared under section 319 of the PHS

Act. Accordingly, in Section VI of the Declaration, the Secretary is

amending the list of medical countermeasures against COVID–19

that are covered countermeasures under the declaration to include

covered countermeasures authorized by the CARES Act, namely

respiratory protective devices approved by NIOSH under 42 CFR

part 84, or any successor regulations, that the Secretary

determines to be a priority for use during a public health

emergency declared under section 319 of the PHS Act.

85 Fed. Reg. 21,012, 21,013; see also 42 U.S.C. §§ 247d, 247d-6d(i)(1)(D)(“[A]

respiratory protective device that is approved by the National Institute for

Occupational Safety and Health under part 84 of title 42, Code of Federal

Regulations (or any successor regulations), and that the Secretary determines

to be a priority for use during a public health emergency declared under

section 247d of this title.”).4

A few more definitions are pertinent.

A “person” is defined to “include[] an individual, partnership,

corporation, association, entity, or public or private corporation, including a

Federal, State, or local government agency or department.” 42 U.S.C. § 247d-

6d(i)(5). A “program planner” means

a State or local government, including an Indian tribe, a person

employed by the State or local government, or other person who

supervised or administered a program with respect to the

administration, dispensing, distribution, provision, or use of a

security countermeasure or a qualified pandemic or epidemic

product, including a person who has established requirements,

provided policy guidance, or supplied technical or scientific advice

or assistance or provides a facility to administer or use a covered

countermeasure in accordance with a declaration under

subsection (b).

4 These provisions went into effect in March and will remain in effect until the

final day of the emergency declaration or October 1, 2024. 85 Fed. Reg. 21,012,

21,014.

Id. § 247d-6d(i)(6).

The PREP Act defines the term “covered person,” “when used with

respect to the administration or use of a covered countermeasure,” to mean

(A) the United States; or

(B) a person or entity that is--

(i) a manufacturer of such countermeasure;

(ii) a distributor of such countermeasure;

(iii) a program planner of such countermeasure;

(iv) a qualified person who prescribed, administered, or dispensed

such countermeasure; or

(v) an official, agent, or employee of a person or entity described in

clause (i), (ii), (iii), or (iv).

Id. § 247d-6d(i)(2).

A “qualified person” “when used with respect to the administration or use

of a covered countermeasure” is defined as

(A) a licensed health professional or other individual who is authorized to

prescribe, administer, or dispense such countermeasures under the

law of the State in which the countermeasure was prescribed,

administered, or dispensed; or

(B) a person within a category of persons so identified in a declaration by

the Secretary under subsection (b).

Id. § 247d-6d(i)(8).

“Administration” is undefined in the PREP Act, but the Act enables the

Secretary of HHS to further outline relevant conditions. Recently, the Secretary

clarified that definition:

Administration of a 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

purpose of distributing and dispensing countermeasures.

See https://www.phe.gov/Preparedness/legal/prepact/Pages/COVID19.aspx.5

Even the seemingly broader category of “decisions directly relating” to the

countermeasures, within the meaning of this definition, is bound to the

“physical provision of the countermeasures to recipients,” or “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 purpose of distributing and

dispensing countermeasures.” Id.

5 The Secretary’s declaration further states as follows:

The definition of “administration” extends only to physical provision of a

countermeasure to a recipient, such as vaccination or handing drugs to

patients, and to activities related to management and operation of programs

and locations for providing countermeasures to recipients, such as decisions

and actions involving security and queuing, but only insofar as those activities

directly relate to the countermeasure activities. Claims for which Covered

Persons are provided immunity under the Act are losses caused by, arising out

of, relating to, or resulting from the administration to or use by an individual of

a Covered Countermeasure consistent with the terms of a Declaration issued

under the Act. Under the definition, these liability claims are precluded if

they allege an injury caused by a countermeasure, or if the claims are

due to manufacture, delivery, distribution, dispensing, or management

and operation of countermeasure programs at distribution and

dispensing sites.

Thus, it is the Secretary’s interpretation that, when a Declaration is in effect,

the Act precludes, for example, liability claims alleging negligence by a

manufacturer in creating a vaccine, or negligence by a health care provider in

prescribing the wrong dose, absent willful misconduct. Likewise, the Act

precludes a liability claim relating to the management and operation of a

countermeasure distribution program or site, such as a slip-and-fall injury or

vehicle collision by a recipient receiving a countermeasure at a retail store

serving as an administration or dispensing location that alleges, for example,

lax security or chaotic crowd control. However, a liability claim alleging an

injury occurring at the site that was not directly related to the countermeasure

activities is not covered, such as a slip and fall with no direct connection to the

countermeasure’s administration or use. In each case, whether immunity is

applicable will depend on the particular facts and circumstances.

Id. (emphasis added). The guidance is general in that its examples tend to identify only

the clear cases at either end of the spectrum—i.e., those obviously immune (actual

administration of countermeasures to a patient) and those obviously not immune (a

slip and fall at a medical facility). The rest are relegated to an assessment of

“particular facts and circumstances.”

Finally, Section 247d-6d does contain an explicit provision regarding

preemption, though it does not apply here:

During the effective period of a declaration under subsection (b), or at

any time with respect to conduct undertaken in accordance with such

declaration, no State or political subdivision of a State may establish,

enforce, or continue in effect with respect to a covered countermeasure

any provision of law or legal requirement that—

(A) is different from, or is in conflict with, any requirement

applicable under this section; and

(B) relates to the design, development, clinical testing or

investigation, formulation, manufacture, distribution, sale,

donation, purchase, marketing, promotion, packaging, labeling,

licensing, use, any other aspect of safety or efficacy, or the

prescribing, dispensing, or administration by qualified persons

of the covered countermeasure, or to any matter included in a

requirement applicable to the covered countermeasure under this

section or any other provision of this chapter, or under the Federal

Food, Drug, and Cosmetic.

42 U.S.C. § 247d-6d(b)(8). As discussed herein, this provision pertains to a

form of preemption, “conflict preemption,” but does not by itself mandate a

federal forum or completely preempt all claims arising out of the adequacy, or

not, of the medical care afforded by these defendants when infected with the

COVID-19 virus.

iii. Analysis

There is no question that the COVID-19 pandemic has required a

coordinated effort between federal, state, and municipal governments. Long-

term care facilities, such as the nursing facilities at issue here, have in one

sense borne the tragic cost of this virus. In another sense, they have been on

the front lines of combating this deadly disease and providing necessary care,

at great personal risk, to those particularly susceptible to the virus. One

question here is whether the PREP Act and its immunities are so broad as to

cover these state-law negligence claims against the providers of such care.

Another is whether, even assuming the PREP Act limits the scope of what

plaintiffs may sue for, it completely preempts all such claims and requires that

they be given a federal forum.

A court must first look to the plain language of a statute in determining

its meaning, and often must look no farther. United States v. Gregg, 226 F.3d

253, 257 (3d Cir. 2000); United States v. Gollapudi, 130 F.3d 66, 70 (3d Cir.

1997). “If the language of the statute expresses Congress’s intent with

sufficient precision, the inquiry ends there and the statute is enforced

according to its terms.” Gregg, 226 F.3d at 257; see also Barrios v. Att’y Gen.,

399 F.3d 272, 277 n.11 (3d Cir. 2005). The plain language may be set aside

only if strict application would produce an absurd result, one that is clearly

contrary to legislative intent. See id.; see also Gollapudi, 130 F.3d at 70 (“Only

the most extraordinary showing of contrary intentions in the legislative history

will justify a departure from that language.” (internal quotation marks and

brackets omitted)). Statutes should, if possible, be construed to function as a

“harmonious whole.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120,

133 (2000). Thus, “[c]ourts should disfavor interpretations of statutes that

render language superfluous.” Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253

(1992); see also TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001).

The PREP Act provides immunity for a covered person against claims of

loss caused by or relating to the manufacture, distribution, administration, or

use of medical countermeasures. Plaintiffs contend that Defendants do not fall

within the scope of the PREP Act, in that the claims are not directed against

Defendants’ role in the manufacturing, distribution, administration, or use of a

covered countermeasure. (6605 Action, DE 6-1 at 12-13) Defendants respond

that the negligence claims here fall within the PREP Act, because they do

“originate[] and arise[] from Defendants’ allocation, use, distribution,

procurement and administration of various ‘covered countermeasures’ in

responding to, mitigating, or otherwise preventing the transmission of the

COVID-19 virus, including, but not limited to, PPE.” (6605 Action, DE 8 at 11)

My view of the matter is closer to that of Plaintiffs. The PREP Act, as

amended, is an emergency response to the pandemic. Its evident purpose is to

embolden caregivers, permitting them to administer certain encouraged forms

of care (listed COVID “countermeasures”) with the assurance that they will not

face liability for having done so. Nothing in the language of the Act suggests

that it was intended to more broadly displace state-law causes of action for,

e.g., malpractice or substandard care—even if proper care possibly would have

entailed administration of such countermeasures.

I start with the question of preemption. In general, preemption takes

three forms:

(1) “express” preemption, applicable when Congress expressly

states its intent to preempt state law; (2) “field” preemption,

applicable when “Congress' intent to pre-empt all state law in a

particular area may be inferred [because] the scheme of federal

regulation is sufficiently comprehensive” or “the federal interest is

so dominant that the federal system will be assumed to preclude

enforcement of state laws on the same subject;” and (3) “conflict”

preemption, applicable when “state law is nullified to the extent

that it actually conflicts with federal law,” even though Congress

has not displaced all state law in a given area.

Fellner v. Tri–Union Seafoods, L.L.C., 539 F.3d 237, 242–43 (3d Cir. 2008).

Two types of preemption potentially apply to Plaintiffs’ claims. Field, or

implied, preemption applies when federal law “so thoroughly occupies a

legislative field as to make reasonable the inference that Congress left no room

for the States to supplement it.” Orson, Inc. v. Miramax Film Corp., 189 F.3d

377, 381 (3d Cir. 1999) (quoting Cipollone v. Liggett Group, Inc., 505 U.S. 504,

516 (1992)) (internal quotation marks omitted). State law may also be displaced

under conflict preemption when the state law in questions presents a conflict

with federal law either because “it is impossible to comply with both the state

and the federal law” or “the state law stands as an obstacle to the

accomplishment and execution of the full purposes and objectives of

Congress.” Id. at 382 (internal citations omitted).

The largely unstated premise of the Defendants’ argument is that if the

PREP Act applies in any manner, they are entitled to a federal-court forum by

virtue of field preemption. That is by no means clear; to say that federal law

applies in some manner is not to say that the case must be heard in federal

court. Ordinarily, under the well-pleaded complaint rule, a federal-law defense

to liability does not require that a state-law case be removed to federal court.6

The PREP Act does not so provide, and it is not the source of the Plaintiffs’

claims. Defendants cite 42 U.S.C. § 247d-6d(e)(1)—a subsection of the very

PREP Act provision involved here—which provides that “[a]ny action under

subsection (d) shall be filed and maintained only in the United States District

Court for the District of Columbia.” To me, that demonstrates only that

Congress knew very well how to provide for an exclusive federal forum when it

wanted to—i.e., for actions under subsection (d), which this is not.

6 As a point of comparison, Section 301 of the LMRA explicitly grants federal

courts jurisdiction over “[s]uits for violation of contracts between an employer and a

labor organization representing employees in an industry affecting commerce.” 29

U.S.C. § 185. The Supreme Court has held that “questions relating to what the parties

to a labor agreement agreed, and what legal consequences were intended to flow from

breaches of that agreement, must be resolved by reference to uniform federal law,

whether such questions arise in the context of a suit for breach of contract or in a suit

alleging liability in tort.” Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 211 (1985).

Thus, “LMRA § 301 completely preempts a state cause of action ... when the resolution

of said action is ‘substantially dependent upon analysis of the terms of an agreement

made between the parties in a labor contract.’” Id. at 220.

The PREP Act does not contain language mandating a federal forum. Nor does

its language completely displace state law as to all matters touching on the COVID-19

pandemic. Indeed, the Act contains a limited preemption clause, suggesting that

Congress thought about how far preemption should go, and drew the line well short of

what Defendants are proposing here. Only claims related to the administration of

designing, manufacturing, and distributing covered countermeasures to individuals is

preempted. That is, “no State or political subdivision of a State may establish, enforce,

or continue in effect with respect to a covered countermeasure any provision of law or

legal requirement that . . . (A) is different from, or is in conflict with, any requirement

applicable under this section; and (B) relates to the design, development. . .

manufacture, distribution, sale, donation, purchase, marketing, promotion,

packaging, labeling, licensing, use, any other aspect of safety or efficacy, or the

prescribing, dispensing, or administration by qualified persons of the covered

countermeasure. . . .” 42 U.S.C. § 247d-6d(b)(8).

Moreover, even if I accept that the PREP Act does contain an express

provision regarding preemption, see 42 U.S.C. § 247d-6d(b)(8), at most this

provision restricts any state from passing a law that conflicts with the federal

government’s requirements for the “design, development, clinical testing or

investigation, formulation, manufacture, distribution, sale, donation, purchase,

marketing, promotion, packaging, labeling, licensing, use, any other aspect of

safety or efficacy, or the prescribing, dispensing, or administration” of covered

countermeasures. Id. But, Plaintiffs acknowledge that they are not suing

Defendants for any act taken in conformity with these protected acts vis-à-vis

countermeasures.

Defendants do not deny that the PREP Act and its “COVID-19 directives

were designed to maximize the availability of PPE and testing for those who

needed it most, including specific instructions as to how to administer and

preserve PPE.” (6605 Action, DE 8 at 16) That this is the very purpose of the

PREP Act is confirmed by the statute’s plain language. Section 247d-6d covers

“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 if a

declaration under subsection (b) has been issued with respect to such

countermeasure.” “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.” Id. § 247d-6d(a)(2)(B).

Here, declarations under subsection (b) were concededly issued. These

cover the manufacturing, distribution, and administration of “qualified

pandemic” products and respiratory protective devices. The Act, as extended by

the declarations, therefore covers the administration and distribution of

products meant to curb the spread of COVID-19. It does not, by its plain terms,

cover more generally the care received by patients in healthcare facilities.

Suppose, for example, a facility was threatened with or subjected to an

outbreak of COVID-19 and the physicians in charge made a decision to do

nothing. In the broadest sense, this decision would relate to countermeasures,

in the sense that it embodied a decision not to employ them. Assuming that

such a decision lay outside the realm of reasonable medical judgments, it could

give rise to a malpractice claim. And such a malpractice claim would not be

preempted by the PREP Act, which is designed to protect those who employ

countermeasures, not those who decline to employ them.

Such an interpretation of the PREP Act is consistent with guidance from

the Secretary of HHS, who declared that “the Act precludes, for example,

liability claims alleging negligence by a manufacturer in creating a vaccine, or

negligence by a health care provider in prescribing the wrong dose, absent

willful misconduct.”

https://www.phe.gov/Preparedness/legal/prepact/Pages/COVID19.aspx. The

Secretary’s interpretation is a useful guide to the PREP Act’s purpose as

perceived by those who have been charged with the authority to issue

declarations and implement the Act.

All of the foregoing provisions concerning the scope of the PREP Act

suggest that it does not “occupy the field” of negligence or malpractice claims,

even if that negligence or malpractice happens to relate to the COVID-19

illness. Its effect is confined, for example, to the administration of certain

countermeasures, and requires case by case analysis. In short, I think the

PREP Act limits the range of what the plaintiff can sue for—whether in state or

federal court—but does not rule out all such claims. Plaintiffs, in pursuing

their claims in state court, may find that their claims are confined by those

limitations. I believe, however, that the Act still leaves room for ordinary claims

of negligent or substandard care. The allegations of the complaints fit that

description, and Plaintiffs acknowledge that that is the nature of the claims.

Defendants rely heavily on Parker v. St. Lawrence Cty. Pub. Health Dep’t,

102 A.D.3d 140 (3d Dep’t App. Div. 2012), but that case is distinguishable.

(See 6605 Action, DE 8 at 13-15) In Parker, “in response to an outbreak of the

H1N1 influenza virus, the Secretary determined that a public health emergency

existed and issued declarations recommending the administration of the

influenza antiviral vaccination.” Id. at 141. Thereafter, the parents of a minor

brought a negligence action against a school district who administered the

vaccination without their permission. Id. In finding that the PREP Act

preempted plaintiff’s claims, the court stated that “immunity provisions of the

PREP Act are triggered where, as here, the vaccines are purchased pursuant to

a federal contract or agreement” and because administering the vaccine was

explicitly defined in the PREP Act as a covered countermeasure. Id. at 142–43.

Here, by contrast, the complaints do not allege that Plaintiffs’ injuries

arose from, e.g., Defendants’ administration to them of vaccines or medicines

(or for that matter protective gear)—activities that the PREP Act promotes by

affording immunity. Nor do Plaintiffs run afoul of conflict preemption by

seeking a state law ruling requiring what federal law prohibits, or prohibiting

what federal law promotes. Indeed, Plaintiffs are claiming (inter alia) that the

Defendants committed negligence in that, among other things, they failed to

take countermeasures, some of them allegedly federally required. Whether that

is true must await fact finding, but that is the claim. Plaintiffs thus assert

that—because of those failures and other, see infra—the quality of the care

they received fell short of what a nursing home facility should have done to

protect them from infection by the coronavirus. Such claims concerning the

quality of care do not fall within the scope of the PREP Act.

That interpretation has support by negative implication. In recognition

that the PREP Act does not cover the kinds of claims asserted here, many

states have filled the gap with executive orders that provide for such immunity.

Indeed, New Jersey is among those states:

Any healthcare facility, within the meaning of N.J.S.A. 26:13-2,

any modular field treatment facility, and any other site designated by the

Commissioner of the Department of Health for temporary use for the

purpose of providing essential services in support of the State’s COVID-

19 response, including hotels and student dormitories, shall be immune

from civil liability for any damages alleged to have been sustained as a

result of an act or omission undertaken in good faith in the course of

providing services in support of the State’s COVID-19 response by one or

more of its agents, officers, employees, servants, representatives or

volunteers, if, and to the extent, such agent, officer, employee, servant,

representative or volunteer is immune from liability, whether or not such

immunity is otherwise available under current law. Such immunity shall

not extend to acts or omissions that constitute a crime, actual fraud,

actual malice, gross negligence or willful misconduct.

Exec. Order 112, https://nj.gov/infobank/eo/056murphy/pdf/EO-112.pdf

(emphasis added). The New Jersey Executive order thus provides an instructive

contrast. The drafters of the PREP Act, if they had meant to cover any negligent

act or omission “in the course of” providing COVID-related health care, could

easily have done so. The language of the federal Act, however, is far narrower.

This, too, suggests that Plaintiffs’ claims of negligence in connection with

caring for these nursing home residents do not fall within the preemptive scope

of the PREP Act.

I have referred to alleged acts of negligence, including failure to take the

countermeasures enumerated in the PREP Act, “and others.” By that, I mean

that many of the measures with which Defendants allegedly failed to comply

were acts such as “social distancing, quarantining, lockdowns, and others.”

(6055 Action, DE 8 at 16) These are not covered “countermeasures” under the

PREP Act at all. Any claim that Defendants failed to comply with them is not

within the scope of the Act, which covers “qualified pandemic or epidemic

products”—products including “a drug (as such term is defined in section

201(g)(1) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321(g)(1)),

biological product (as such term is defined by section 262(i) of this title), or

device (as such term is defined by section 201(h) of the Federal Food, Drug and

Cosmetic Act (21 U.S.C. 321(h)).” 42 U.S.C. § 247d-6d(i)(7). Practices such as

social distancing are not covered by the Act. These claims would not fall within

its preemptive scope and mandate a federal forum. And more broadly, the

availability of such measures, assuming they go beyond federal requirements,

do not give rise to conflict preemption. Nothing in the PREP Act suggests a

legislative intent to prohibit the states from imposing higher or additional

measures through the case by case operation of negligence law.

I pause to state what I am not deciding. I do not rule that the Defendants

are, or are not, entitled to a PREP Act defense to this or that claim. That is for

the state courts to decide on remand. What I am deciding is that the PREP Act

does not so occupy the field as to squeeze out state court jurisdiction over what

are state-law claims of negligence and require an exclusive federal forum.

Consequently, I find that removal was improper under 42 U.S.C. § 1441 and

would grant the motion to remand on that basis.

B. Removal under § 1442(a)(1)

Alternatively, however, Defendants argue that removal under Section

1442(a)(1) was also warranted. They argue that their response to the

coronavirus pandemic, alleged by Plaintiffs to have been insufficient, was part

of a national response effort to curb the spread of COVID-19, and it complied

with federal guidelines. Defendants point out in addition, that they are heavily

regulated by Medicare guidelines in exchange for Medicare and Medicaid funds.

(DE 8 at 24-34) For all these reasons, say Defendants, they enjoy the status of

agents of the United States, who are entitled to a federal forum for claims

against them. (DE 8 at 30) For the reasons outlined below, I disagree and will

remand.

i. Legal Standard

Section 1442(a) provides as follows:

(a) A civil action ... that is commenced in a State court and that is

against or directed to any of the following may be removed by them

to the district court of the United States for the district and

division embracing the place wherein it is pending:

(1) The United States or any agency thereof ... for or relating

to any act under color of such office or on account of any

right, title or authority claimed under any Act of Congress for

the ... collection of the revenue.

....

(d) In this section, the following definitions apply:

(1) The terms “civil action” and “criminal prosecution”

include any proceeding (whether or not ancillary to another

proceeding) to the extent that in such proceeding a judicial

order, including a subpoena for testimony or documents, is

sought or issued. If removal is sought for a proceeding

described in the previous sentence, and there is no other

basis for removal, only that proceeding may be removed to

the district court.

28 U.S.C. § 1442.7

“Section 1442(a) is an exception to the well-pleaded complaint rule,

under which (absent diversity) a defendant may not remove a case to federal

court unless the plaintiff’s complaint establishes that the case arises under

federal law.” In re Commonwealth’s Motion to Appoint Counsel Against or

Directed to Def. Ass’n of Phila., 790 F.3d 457, 466 (3d Cir. 2015) (quotation and

citation omitted). Under this section, “a colorable federal defense is sufficient to

confer federal jurisdiction.” Id.

The Third Circuit draws a distinction between removal under § 1441,

which is “to be strictly construed against removal and all doubts should be

resolved in favor of remand,” Boyer v. Snap–On Tools Corp., 913 F.2d 108, 111

(3d Cir. 1990) (quotation and citation omitted), and § 1442(a), which is to be

“broadly construed.” Sun Buick, Inc. v. Saab Cars USA, Inc., 26 F.3d 1259,

1262 (3d Cir. 1994); See In re Commonwealth’s Motion to Appoint Counsel

Against or Directed to Def. Ass’n of Phila., 790 F.3d at 467. Still, “[that] broad

language is not limitless. And a liberal construction nonetheless can find limits

7 Section 1442, often referred to as the “federal officer removal statute,” has been

twice amended, first in 1996 and a second time in 2011. I note briefly that in 1996,

Congress amended § 1442(a)(1) to allow for removal by “the United States or any

agency thereof.” Federal Courts Improvement Act of 1996, Pub. L. No. 104-317, § 206,

110 Stat. 3847, 3850 (codified as amended at 28 U.S.C. § 1442). Before 1996, removal

was limited to “[a]ny officer of the United States or any agency thereof, or person

acting under him, for any act under color of such office.” The 1996 amendment

explicitly reversed International Primate Protection League v. Administrators of the

Tulane Education Fund, 500 U.S. 72, 79-87 (1991), wherein the Supreme Court held

that federal agencies were not entitled to removal under the statute.

in a text’s language, context, history, and purposes.” Watson v. Philip Morris

Cos., 551 U.S. 142, 147 (2007).

In order to establish a proper basis for removal under § 1442, the

removing party must show that “(1) it is a ‘person’ within the meaning of the

statute; (2) the [plaintiff’s] claims are based upon the [removing party’s]

conduct ‘acting under’ the United States, its agencies, or its officers; (3) the

[plaintiff’s] claims against it are ‘for, or relating to’ an act under color of federal

office; and (4) it raises a colorable federal defense to the [plaintiff’s] claims.” In

re Commonwealth’s Motion to Appoint Counsel Against or Directed to Def. Ass’n

of Phila., 790 F.3d at 467.

ii. Analysis

I apply the Commonwealth requirements, all of which must be satisfied to

justify removal and require denial of remand on the basis of 28 U.S.C. § 1442.

Requirement 1 is not an issue. Plaintiffs do not contest that Defendants

are “persons” within the meaning of Section 1442.

Requirement 2, however—that Defendants were “acting under” a federal

officer or agency—is not met.

To establish that it was “acting under” a federal officer within the

meaning of section 1442(a)(1), the private actor defendant must demonstrate

that it performed the complained-of activity at the direction of a federal

authority. Willingham v. Morgan, 395 U.S. 402, 409 (1969). In Watson, the

Supreme Court acknowledged that the removal statute applies to private

persons who lawfully assist a federal officer in the performance of his or her

official duty. To fall under the scope of the statute, however, a private person

must do more than “simply [comply] with the law.” 551 U.S. at 151–52. Thus

even a “highly regulated firm cannot find a statutory basis for removal in the

fact of federal regulation alone.” Id. at 153. To satisfy the requirement of “acting

under” a government agency, a private actor must perform “a job that, in the

absence of a contract with a private firm, the government itself would have had

to perform.” Id. at 154.

Here, the only connection to the federal government is that Defendants—

owners and operators of privately owned nursing facilities—are required to

comply with detailed federal regulations when operating these facilities and

when providing care. (DE 8 at 26–32) Defendants state that, by providing

medical treatment for patients, complying with Medicare and Medicaid

regulations, and therefore receiving Medicare and Medicaid payments from the

federal government, they were assisting a federal officer in the performance of

an official duty. (Id. at 26–28) They add that federal guidelines required them to

implement measures to limit the spread of COVID-19, guidelines which they

did not violate. (Id. at 28-32) These allegations of compliance with federal law,

even in a regulated setting, are insufficient to establish that Defendants were

“acting under” a federal officer or agency. See, e.g., Mennonite Gen. Hosp., Inc.

v. Molina Healthcare of Puerto Rico, 319 F. Supp. 3d 587, 595 (D.P.R.

2018)(“With respect to their involvement in the Medicaid program, Defendants

are certainly subject to detailed federal regulations and they may even be

‘highly supervised and monitored.’ Watson, 551 U.S. at 153, 127 S.Ct. 2301.

But beyond that, Defendants have not shown anything to indicate that they

‘assist, or to help carry out, the duties or tasks of the federal superior.’”).

Defendants’ line of reasoning would have very far-reaching

consequences. Consider, for example, that during this pandemic many private

persons or entities have received federal funds under the CARES act and its

Paycheck Protection Program (“PPP”), and may point to their dutiful compliance

with CDC guidelines for limiting occupancy, face coverings, and health and

sterilization measures. Small and large entities alike, including nonprofits,

restaurants, vineyards, construction companies, and religious organizations,

have accepted such funding, all while attempting to implement measures to

curb the spread of COVID-19. See https://home.treasury.gov/policy-

issues/cares-act/assistance-for-small-businesses/sba-paycheck-protection-

program-loan-level-data. Under Defendants’ line of reasoning, all of these

entities would be acting under a federal officer for purposes of § 1442(a)(1).

Watson stands in the way of any interpretation that all of those persons and

entities are, or are acting on behalf of, federal agents. I believe it is

impermissible to read Section 1442 so broadly.

Even assuming that requirements 1 and 2 are both met, however,

Defendants have requirement 3 to deal with. Defendants fail to establish that

the acts alleged by Plaintiffs to be negligent were performed pursuant to the

direct orders of a federal officer. Removal under § 1442(a)(1) “‘must be

predicated upon a showing that the acts forming the basis of the state suit

were performed pursuant to an officer’s direct orders or comprehensive and

detailed regulations.’” Orthopedic Specialists of N.J. PA v. Horizon Blue

Cross/Blue Shield of N.J., 518 F. Supp. 2d 128, 135-36 (D.N.J. 2007)

(emphasis added) (quoting N.J. Dep’t of Envtl. Prot. v. Dixo Co., No. CV 06–

1041–SRC, 2006 WL 2716092, at *2 (D.N.J. Sept. 22, 2006)). A private party

must also demonstrate that the federal officer had “direct and detailed control”

over the action in question. Id. at 134 (internal quotation marks omitted). Put

another way,

Removal must be predicated upon a showing that the acts forming

the basis of the state suit were performed pursuant to an officer’s

direct orders or comprehensive and detailed regulations. By

contrast, if the corporation establishes only that the relevant acts

occurred under the general auspices of federal direction then it is

not entitled to § 1442(a)(1) removal.

Dixo, 2006 WL 2716092, at *2 (citing Good v. Armstrong World Indus., Inc., 914

F.Supp. 1125, 1128 (E.D. Pa. 1996)). Here, Plaintiffs allege negligence

stemming from the medical care they received while patients and residents at

Defendants’ facilities. Defendants do not contend that the purportedly

negligent medical care administered was under the direct and detailed control

of a federal agency or officer. Rather, Defendants generally contend that there

is a nexus between Plaintiffs’ negligence claims and the infection control

procedures they followed as part of the federal government’s nationwide

COVID-19 response. (6605 Action, DE 8 at 8) This statement falls short of

establishing that the federal government, either by command or comprehensive

regulations, directed and controlled the specific conduct that caused Plaintiffs’

injuries.

Defendants do not qualify as federal officers or as entities acting under a

federal officer. Thus, removal is improper under 42 U.S.C. § 1442(a)(1).

III. Conclusion

For the reasons set forth above, I find that this matter was not properly

removed because the complaints fail to set forth a basis for this Court’s subject

matter jurisdiction. The matters will be remanded to New Jersey Superior

Court, Sussex County. An appropriate order accompanies this Opinion.

Dated: August 12, 2020

/s/ Kevin McNulty

____________________________________

Kevin McNulty

United States District Judge