Howard Schleider v. GVDB Operations, LLC

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-11765

____________________

HOWARD SCHLEIDER,

FELICE VINARUB,

as Co-Personal Representatives for

The Estate of Sara Schleider, Deceased,

Plaintiffs-Appellees,

versus

GVDB OPERATIONS, LLC,

d.b.a. Grand Villa of Delray East,

JSMGV MANAGEMENT COMPANY, LLC,

a Florida Limited Liability Company,

Defendants-Appellants.

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2 Opinion of the Court 21-11765

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 9:21-cv-80664-WPD

____________________

Before JORDAN, LUCK, and LAGOA, Circuit Judges.

LAGOA, Circuit Judge:

GVDB Operations, LLC, and JSMGV Management Com-

pany, LLC (collectively, “Defendants”), appeal the district court’s

order remanding this case to state court. Howard Schleider and

Felice Vinarub, as co-personal representatives for the Estate of Sara

Schleider (collectively, “Plaintiffs”), initiated this case in Florida

state court. In their complaint, Plaintiffs asserted state-law claims.

They alleged that Defendants failed to prevent the spread of

COVID-19 at their assisted living facility and, as a result, Sara

Schleider contracted COVID-19 and died soon after.

Defendants removed the state court action to federal court

and asserted that the district court had federal subject matter juris-

diction because: (1) Defendants were acting under a federal officer;

(2) Plaintiffs’ claims were completely preempted by the Public

Readiness and Emergency Preparedness Act (the “PREP Act”), 42

U.S.C. §§ 247d-6d, 247d-6e; and (3) Plaintiffs’ claims raised an em-

bedded federal question concerning the PREP Act. The district

court, however, concluded that it lacked subject matter jurisdiction

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21-11765 Opinion of the Court 3

and remanded the case to state court. After careful review, and

with the benefit of oral argument, we affirm.

I. BACKGROUND

In October 2019, Sara Schleider was admitted as a patient at

an assisted living facility owned and operated by Defendants.

Around May 9, 2020, she contracted COVID-19 at Defendants’ fa-

cility and died soon after.

Plaintiffs, as representatives for Sara Schleider’s estate, as-

serted survival and wrongful death claims against Defendants for

violating Florida Statute § 429.28—the “Resident bill of rights”

within Florida’s Assisted Living Facilities Act—in Florida state

court. In support of their claims, Plaintiffs alleged that Defendants

owed a duty to Sara Schleider “to properly hire, retain and super-

vise employees to ensure” that their employees “exercised non-

negligent care.” Plaintiffs also alleged Defendants breached that

duty by generally failing to implement measures to prevent the

transmission of COVID-19 to Sara Schleider. Plaintiffs alleged that

Defendants “complete[ly] fail[ed] to provide[] any appropriate

countermeasures to prevent the rampant spread of COVID-19 at

Defendants’ facility.” And Plaintiffs alleged that Defendants’ negli-

gence was the proximate cause of Sara Schleider’s—and her es-

tate’s—injuries and damages. In the alternative, and in support of

their Florida Statute § 429.28 claims, Plaintiffs also alleged that De-

fendants’ “conduct rose to the level of willful misconduct or gross

negligence” because their “conduct was in disregard of a known or

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4 Opinion of the Court 21-11765

obvious risk that was so great as to make it highly probable that the

harm it caused[] outweighed any actions [they] took.”

Defendants subsequently removed Plaintiffs’ state court ac-

tion to federal district court under 28 U.S.C. §§ 1441(a) and

1442(a)(1). According to Defendants, the district court had subject

matter jurisdiction over the case for three reasons: (1) Defendants

were acting under a federal officer; (2) Plaintiffs’ claims were com-

pletely preempted by the PREP Act; and (3) Plaintiffs’ claims raised

an embedded federal question. 1 In response, Plaintiffs moved to

remand the case to state court, asserting that their complaint as-

serted no causes of action arising under federal law and that De-

fendants were not federal officers.

The district court granted Plaintiffs’ motion and remanded

the case. In so doing, the district court held that Defendants im-

properly removed this case under 28 U.S.C. § 1441(a) because

Plaintiffs’ complaint alleged only state-law claims and that Defend-

ants could not remove the case to federal court based on potential

defenses to Plaintiffs’ claims. The district court further held that

the PREP Act did not completely preempt Plaintiffs’ claims and

that Plaintiffs’ “state-law claims of negligence and wrongful death

based on a nursing home’s inaction in failing to protect against the

spread of COVID-19 . . . are not within the scope of the PREP Act.”

1 After removing this case to federal court, Defendants also moved to dismiss

Plaintiffs’ claims and, in the alternative, to transfer Plaintiffs’ claims to the U.S.

District Court for the District of Columbia. Upon remanding the case to state

court, the district court denied these motions as moot.

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But the district court did not address whether removal was proper

under § 1442(a)(1)—i.e., whether Defendants had acted under a

federal officer. This appeal followed.

II. STANDARD OF REVIEW

“We review de novo the district court’s decision to remand a

case to state court for lack of subject matter jurisdiction.” Lowery

v. Ala. Power Co., 483 F.3d 1184, 1193 (11th Cir. 2007); accord Lloyd

v. Benton, 686 F.3d 1225, 1227 (11th Cir. 2012).

III. FEDERAL QUESTION JURISDICTION

Under 28 U.S.C. § 1441(a), a defendant may remove “any

civil action brought in a State court of which the district courts of

the United States have original jurisdiction.” When, as here, com-

plete diversity citizenship does not exist, the defendant must show

that federal question jurisdiction is present. Id. § 1441(b); see also

Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987) (“Absent diver-

sity of citizenship, federal-question jurisdiction is required.”). “A

removing defendant bears the burden of proving proper federal ju-

risdiction.” Adventure Outdoors, Inc. v. Bloomberg, 552 F.3d 1290,

1294 (11th Cir. 2008). Federal courts have federal jurisdiction over

“all civil actions arising under the Constitution, laws, or treatises of

the United States.” 28 U.S.C. § 1331.

“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.” Caterpil-

lar, 482 U.S. at 392. The well-pleaded complaint rule means that a

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6 Opinion of the Court 21-11765

federal question is “presented” when the complaint—on its face—

invokes federal law as the basis for relief. The plaintiff is thus “the

master of the claim; he or she may avoid federal jurisdiction by ex-

clusive reliance on state law.” Id. However, even if a plaintiff has

pled only state-law claims, a plaintiff may not avoid federal juris-

diction if either: (1) the state-law claims raise substantial questions

of federal law or (2) federal law completely preempts the state-law

claims. See Franchise Tax Bd. v. Constr. Laborers Vacation Tr., 463 U.S.

1, 13 (1983); Dunlap v. G & L Holding Grp., Inc., 381 F.3d 1285, 1289

(11th Cir. 2004).

IV. ANALYSIS

On appeal, Defendants assert that the district court erred in

remanding this case to state court. Specifically, Defendants assert

that the district court had subject matter jurisdiction, and therefore

they had properly removed this case to federal court, because: (1)

Defendants acted under a federal officer; (2) Plaintiffs’ claims are

completely preempted by the PREP Act; and (3) Plaintiffs’ claims

raise an embedded federal question concerning the PREP Act. De-

fendants’ first argument in favor of removal relies on 28 U.S.C.

§ 1442(a)(1), which allows “any officer (or any person acting under

that officer) of the United States or of any agency thereof” to re-

move a case to federal court if certain requirements are met. De-

fendants’ second and third arguments in favor of removal rely on

federal question jurisdiction under § 1441(a).

An order remanding a case to state court for lack of subject

matter jurisdiction ordinarily is not reviewable on appeal. 28

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U.S.C. § 1447(d); see Vachon v. Travelers Home & Marine Ins. Co., 20

F.4th 1343, 1346–47 (11th Cir. 2021). But if one of the asserted

grounds for removal is § 1442 or § 1443, “and the district court or-

der[s] the case remanded to state court, the whole of its order [be-

comes] reviewable on appeal.” BP P.L.C. v. Mayor & City Council of

Baltimore, 593 U.S. 230, 238 (2021). Defendants removed this case

under both § 1441 and § 1442. While the district court did not ad-

dress § 1442 in its remand order, we have previously determined

that a district court’s failure to address a ground for removal con-

stitutes an implicit denial of that ground. See, e.g., Alabama v. Con-

ley, 245 F.3d 1292, 1293 n.1 (11th Cir. 2001). Under BP P.L.C., we

must therefore consider all the grounds Defendants raised in sup-

port of removal. 2

We consider Defendants’ three arguments in support of fed-

eral subject matter jurisdiction—i.e., (1) federal officer removal; (2)

complete preemption; and (3) embedded federal question jurisdic-

tion—in turn. Before addressing these arguments, however, we

provide a brief overview of the PREP Act and the pertinent

COVID-19 declaration made by the Secretary of the United States

Department of Health and Human Services (the “Secretary”).

2 However, as noted by the majority in BP P.L.C., district courts should be

mindful of their ability to deter defendants from raising spurious theories to

seek removal. See 593 U.S. at 245–46; see also 28 U.S.C. § 1447(c) (explaining

that district courts “may order a defendant to pay the plaintiff’s costs and ex-

penses (including attorney’s fees) if it frivolously removes a case from state

court.”

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8 Opinion of the Court 21-11765

A. The PREP Act and COVID-19

1. The PREP Act

The PREP Act, which was enacted in 2005, authorizes the

Secretary to make “a determination that a disease or other health

condition or other threat to health constitutes a public emergency,

or . . . future . . . emergency.” 42 U.S.C. § 247d-6d(b)(1). If such a

determination is made, the Secretary “may make a declaration . . .

recommending, under conditions as the Secretary may specify, the

manufacture, testing, development, administration, or use of one

or more covered countermeasures.”3 § 247d-6(b)(1). The PREP

Act “lies dormant” until the Secretary publishes a declaration rec-

ommending that certain covered countermeasures be taken in re-

sponse to a public-health emergency. Maglioli v. All. HC Holdings

LLC, 16 F.4th 393, 400 (3d Cir. 2021) (citing 42 U.S.C. § 247d-

6d(b)(1)). Once the Secretary publishes a declaration, the PREP Act

provides that “a covered person shall be immune from suit and lia-

bility under Federal and State law with respect to all claims for loss

caused by, arising out of, relating to, or resulting from the admin-

istration to or the use by an individual of a covered countermeas-

ure.” 42 U.S.C. § 247d-6d(a)(1). And “[u]pon the issuance by the

Secretary of a declaration,” the United States Department of the

3 The terms “covered countermeasure” and “covered person” are defined in

the PREP Act. 42 U.S.C. § 247d-6d(i)(1)–(2). As relevant to this appeal, cov-

ered countermeasures include “qualified pandemic or epidemic product[s]”

used to mitigate, prevent, or limit a pandemic, and covered persons include

“program planner[s]” that supervise, administer, or “provide[] a facility to ad-

minister or use a covered countermeasure.” Id. § 247d-6d(i)(2), (6).

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Treasury establishes “an emergency fund designated as the ‘Cov-

ered Countermeasure Process Fund’ for purposes of providing . . .

compensation to eligible individuals for covered injuries directly

caused by the administration or use of a covered countermeasure.”

Id. § 247d-6e(a).

“For most who suffer an injury that falls under the [PREP

Act’s] immunity provision, the sole remedy is compensation from

the ‘Covered Countermeasures Process Fund,’ as determined by

an administrative process.” Mitchell v. Advanced HCS, L.L.C., 28

F.4th 580, 586 (5th Cir. 2022). But the PREP Act does not immun-

ize covered persons from injuries “proximately caused by willful

misconduct.” 42 U.S.C. § 247d-6d(d)(1). Instead, the PREP Act

provides a distinct cause of action for “willful misconduct,” which

is defined as “an act or omission that is taken—(i) intentionally to

achieve a wrongful purpose; (ii) knowingly without legal or factual

justification; and (iii) in disregard of a known or obvious risk that is

so great as to make it highly probable that the harm will outweigh

the benefit.” Id. § 247d-6d(c)(1). And the PREP Act identifies spe-

cific procedures for its willful misconduct claims. But the PREP

Act specifically states that its definition of willful misconduct “shall

be construed as establishing a standard of liability that is more strin-

gent than a standard of negligence in any form or recklessness.” Id.

§ 247d-6d(c)(1)(B).

The PREP Act also establishes exclusive federal jurisdiction

for a willful misconduct claim, as defined by the PREP Act. Id. §

247d-6d((e)(1). The PREP Act states that any such action “shall be

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10 Opinion of the Court 21-11765

filed and maintained only in the United States District Court for the

District of Columbia.” Id. § 247d-6d(e)(1). And the PREP Act iden-

tifies specific procedures to bring willful misconduct claims.

2. The Secretary’s Declaration Concerning COVID-19

In March 2020, the Secretary issued a declaration under the

PREP Act for countermeasures against COVID-19 (the “Declara-

tion”). See Declaration Under the PREP Act for Medical Counter-

measures Against COVID-19, 85 Fed. Reg. 15,198-01 (Mar. 17,

2020). In terms of identifying covered countermeasures, the Dec-

laration stated:

Covered Countermeasures are any antiviral, any

other drug, any biologic, any diagnostic, any other de-

vice, or any vaccine, used to treat, diagnose, cure, pre-

vent, 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 prod-

uct, and all components and constituent materials of

any such product.

Id. at 15,202.

The Secretary has since issued various amendments to the

Declaration, and the Department of Health and Human Services

(“HHS”) has issued advisory opinions and guidance letters con-

cerning the Declaration and its amendments. These amendments,

and the guidance from HHS, have identified additional covered

countermeasures and covered persons. See, e.g., Fourth Amend-

ment to the Declaration, 85 Fed. Reg. 79,190-01, 79,194–196 (Dec.

9, 2020).

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B. Federal Officer Removal

On appeal, Defendants assert that they properly removed

this case to federal court, under § 1442(a)(1), because they acted

under a federal officer. Under § 1442(a)(1), a civil action, initiated

in state court, may be removed to federal court by:

The United States or any agency thereof or any officer

(or any person acting under that officer) of the United

States or of any agency thereof, in an official or indi-

vidual capacity, for or relating to any act under color

of such office or on account of any right, title or au-

thority claimed under any Act of Congress for the ap-

prehension or punishment of criminals or the collec-

tion of the revenue.

“If the statutory prerequisites are satisfied, section 1442(a)(1) pro-

vides an independent federal jurisdictional basis.” Magnin v. Tele-

dyne Cont’l Motors, 91 F.3d 1424, 1427 (11th Cir. 1996).

Defendants are private entities; they are not, themselves, fed-

eral officers. For a private entity to remove a case under

§ 1442(a)(1), the entity must show that it: (1) “is a person within the

meaning of the statute who acted under a federal officer”; (2) “per-

formed the actions for which it is being sued under color of federal

office”; and (3) “raise[d] a colorable federal defense.” Caver v. Cent.

Ala. Elec. Coop., 845 F.3d 1135, 1142 (11th Cir. 2017).

Here, the “acted under a federal officer” prong is dispositive.

To “act[] under” a federal officer, the relevant act “must involve an

effort to assist, or to help carry out, the duties or tasks of the federal

superior.” Watson v. Philip Morris Cos., 551 U.S. 142, 152 (2007)

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12 Opinion of the Court 21-11765

(emphasis omitted). “In other words, the private person must help

federal officers fulfill a basic governmental task that the govern-

ment otherwise would have had to perform.” Caver, 845 F.3d at

1143. And “the relationship between the private person and the

federal officer must be one of ‘subjection, guidance, or control.’”

Id. (quoting Watson, 551 U.S. at 151). For example, we have found

that a private person acted under a federal officer where the person

was expressly delegated authority by the Federal Aviation Admin-

istrator under the Federal Aviation Act. See Magnin, 91 F.3d at 1428.

And we have found that a private firm acted under a federal agency

where the firm acted under an agreement with a federal agency to

provide a service that the federal agency would have otherwise

provided. See Caver, 845 F.3d 1143–44.

“A private firm’s compliance (or noncompliance) with fed-

eral laws, rules, and regulations,” however, “does not by itself fall

within the scope of the statutory phrase ‘acting under’ a federal ‘of-

ficial.’” Watson, 551 U.S. at 153. “[T]hat is so even if the regulation

is highly detailed and even if the private firm’s activities are highly

supervised and monitored.” Id. For example, in Watson, the Su-

preme Court found that a cigarette manufacturer’s compliance

with government-required methods to test cigarettes was insuffi-

cient to show that the manufacturer was “acting under” a federal

officer. Id. at 146–47, 157.

Turning to their argument, Defendants assert that, as part of

the nation’s critical infrastructure and as a program planner under

the Secretary’s COVID-19 Declaration, “the federal government

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enlisted” Defendants “to aid it in fighting the virus’ spread” and

provided guidance on the measures Defendants should take to do

so. Defendants’ argument fails to satisfy § 1442’s “acting under”

requirement for four reasons.

First, recommendations, and even comprehensive regula-

tions, on the protective measures Defendants should have taken

are insufficient. See Watson, 551 U.S. at 153 (explaining that “highly

detailed” regulations, and a high degree of “supervis[ion] and mon-

itor[ing],” do not demonstrate that a private entity was “acting un-

der” a federal officer); Martin v. Petersen Health Operations, LLC, 37

F.4th 1210, 1213 (7th Cir. 2022) (“Private firms retain their private

character even when many aspects of their conduct are controlled

by federal statutes and rules.”).

Second, aside from allegedly complying with “order[s]” and

“instruct[ions]” from the Secretary and HHS, Defendants have

failed to show that they helped or assisted a federal agency to per-

form its duties or tasks. See Watson, 551 U.S. at 152 (“[T]he help or

assistance necessary to bring a private person within the scope of

the statute does not include simply complying with the law” (empha-

sis in original)); see also Caver, 845 F.3d at 1143. Unlike the private

actor in Magnin, Defendants were not acting under an express del-

egation of authority to carry out a federal officer’s duties. See 91

F.3d at 1428. And, unlike the private entity in Caver, Defendants

did not contract with a federal agency to perform a service that the

agency would have otherwise provided. See 845 F.3d at 1143–44.

Because Defendants did “not assist or help carry out the duties of a

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14 Opinion of the Court 21-11765

federal superior[,] . . . [were] not government contractors[,] . . .

[did] not have [a] close relationship with the federal government[,]

. . . [and were neither] delegated federal authority, nor . . . pro-

vide[d] a service that the federal government would otherwise pro-

vide,” Defendants did not act under a federal officer. See Maglioli,

16 F.4th at 405.

Third, Defendants’ alleged status as a program planner is ir-

relevant for federal officer removal. Instead, Defendants’ alleged

status as a program planner, and the authorities they cited in sup-

port, are relevant to immunity under the PREP Act. But Defend-

ants’ potential defense to liability under the PREP Act is not akin

to a delegation of authority to carry out the PREP Act or to assist-

ing in the provision of a service that the federal government would

have otherwise provided.

Fourth, Defendants’ status as a “member of the nation’s crit-

ical healthcare infrastructure” also is irrelevant for purposes of fed-

eral officer removal. As our sister circuits have explained, many

industries have been designated “as essential critical infrastruc-

ture,” but in designating these industries as “critical,” Congress did

not “deputize all of these private-sector workers as federal officers.”

Maglioli, 16 F.4th at 406; see Mitchell, 28 F.4th at 590 (“[D]esignation

of nearly the entire private economy as critical infrastructure can-

not create the kind of relationship required for a private entity to

utilize the federal officer removal statute.”); see also Buljic v. Tyson

Foods, Inc., 22 F.4th 730, 739 (8th Cir. 2021) (“Tyson conflates the

federal government’s designation of the ‘food and agriculture’

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sector as critical infrastructure with a finding that Tyson was ful-

filling a basic governmental task.”), cert. denied, 143 S. Ct. 773

(2023).

We, like our sister circuits that have addressed nearly iden-

tical arguments, therefore conclude that Defendants were not act-

ing under a federal official. See Maglioli, 16 F.4th at 404–06; Mitchell,

28 F.4th at 589–91; Martin, 37 F.4th at 1212–13; Saldana v. Glenhaven

Healthcare LLC, 27 F.4th 679, 684–86 (9th Cir. 2022), cert. denied, 143

S. Ct. 444 (2022). Instead, Defendants operated as a private assisted

living facility that may, or may not, have complied with federal rec-

ommendations and regulations concerning COVID-19.

C. Complete Preemption

The second argument Defendants raise in favor of removal

is that Plaintiffs’ claims are completely preempted by the PREP

Act. “Federal pre-emption is ordinarily a federal defense to the

plaintiff’s suit” that “does not authorize removal to federal court.”

Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987). But complete

preemption “is a doctrine distinct from ordinary preemption [and]

. . . it is a narrowly drawn jurisdictional rule for assessing federal

removal jurisdiction when a complaint purports to raise only state

law claims.” Geddes v. Am. Airlines, Inc., 321 F.3d 1349, 1353 (11th

Cir. 2003).

“Complete preemption occurs when a federal statute both

preempts state substantive law and ‘provides the exclusive cause of

action for the claim asserted.’” Dial v. Healthspring of Ala., Inc., 541

F.3d 1044, 1047 (11th Cir. 2008) (quoting Anderson, 539 U.S. at 8).

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Accordingly, the Supreme Court has explained that it “has found

complete pre-emption” where “the federal statute[] at issue pro-

vided the exclusive cause of action for the claim asserted and also

set forth procedures and remedies governing that cause of action.”

Anderson, 539 U.S. at 8. Complete preemption, however, is rare.

To determine whether a state-law cause of action is com-

pletely preempted, we “look[] beyond the complaint to determine

if the suit is, in reality, ‘purely a creature of federal law,’” such that

the plaintiff’s claim “creat[es] the federal question jurisdiction req-

uisite to removal to federal court[].” Geddes, 321 F.3d at 1353 (quot-

ing Caterpillar, Inc. v. Williams, 482 U.S. 386, 393 (1987)). “[I]f an

individual, at some point in time, could have brought his claim un-

der [the relevant federal statute], and where there is no other inde-

pendent legal duty that is implicated by a defendant’s actions, then

the individual’s cause of action is completely pre-empted by that

federal statute.” Aetna Health Inc. v. Davila, 542 U.S. 200, 210 (2004).

A federal cause of action alone is therefore insufficient; “[t]o give

federal courts exclusive jurisdiction over a federal cause of action,

Congress must, in an exercise of its powers under the Supremacy

Clause, affirmatively divest state courts of their presumptively con-

current jurisdiction.” Yellow Freight Sys., Inc. v. Donnelly, 494 U.S.

820, 823 (1990).

Here, Defendants primarily assert that “all claims arising

from a serious injury or death related to a COVID-19 countermeas-

ure” are completely preempted by the PREP Act. Defendants also

assert that Plaintiffs’ state-law causes of action amount to willful

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21-11765 Opinion of the Court 17

misconduct claims under the PREP Act and thus Plaintiffs’ claims

are completely preempted. We address those arguments in turn.

1. The PREP Act does not completely preempt all state law claims

We address first Defendants’ arguments that Plaintiffs’ state-

law causes of action amount to willful misconduct under the PREP

Act and are thus completely preempted. As relevant to this appeal,

the PREP Act: (1) provides an alternative claims process if a defend-

ant is immune from liability under the PREP Act; and (2) creates a

cause of action for willful misconduct.

In providing a potential defense to liability (i.e., immunity

under the PREP Act), however, Congress did not “affirmatively di-

vest state courts of their” jurisdiction over state-law causes of ac-

tion. Donnelly, 494 U.S. at 823. And the PREP Act’s willful miscon-

duct cause of action—in cases where immunity otherwise ap-

plies—is not a catchall cause of action; it is limited to “an act or

omission that is taken—(i) intentionally to achieve a wrongful pur-

pose; (ii) knowingly without legal or factual justification; and (iii)

in disregard of a known or obvious risk that is so great as to make

it highly probable that the harm will outweigh the benefit.” 42

U.S.C. § 247d-6d(c)(1)(A). Indeed, the PREP Act specifically states

that its definition of willful misconduct “shall be construed as es-

tablishing a standard of liability that is more stringent than a stand-

ard of negligence in any form or recklessness.” Id. § 247d-

6d(c)(1)(B). State-law causes of action that fall outside the PREP

Act’s definition of willful misconduct, including state-law causes of

action for negligence, do not have a “parallel federal cause of

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18 Opinion of the Court 21-11765

action” under the PREP Act. Hudson Ins. Co. v. Am. Elec. Corp., 957

F.2d 826, 830 (11th Cir. 1992) (holding that state-law cause of action

was not completely preempted “because [the] potential state cause

of action against Hudson ha[d] no preemptive parallel federal coun-

terpart”). The PREP Act therefore cannot “wholly displace[]”

every “state-law cause of action through complete preemption.”

Dial, 541 F.3d at 1047 (quoting Anderson, 539 U.S. at 8–9).

We thus conclude and agree with our sister circuits that the

PREP Act, including its compensation fund, does not create a gen-

eral cause of action that would completely preempt all state law

claims related to COVID-19 and countermeasures taken, or not

taken, to prevent the virus’s spread. See Mitchell, 28 F.4th at 587.

Accord Saldana, 27 F.4th at 688 (rejecting the “argument that Con-

gress intended the [PREP] Act to completely preempt all state-law

claims related to the pandemic”). 4

4 As previously discussed, the Secretary and HHS have made amendments to

the Secretary’s Declaration. The amendments to the Declaration—but not

the PREP Act itself—also contain statements suggesting that the PREP Act

broadly preempts state law. For example, the Secretary’s fifth amendment to

the Declaration states that “[t]he plain language of the PREP Act makes clear

that there is complete preemption of state law.” Fifth Amendment to Decla-

ration, 86 Fed. Reg. 7,872-02, 7,874 (Feb. 2, 2021). But these conclusory opin-

ions about federal subject matter jurisdiction are not entitled to deference. See

Maglioli, 16 F.4th at 403–04 (holding that “[t]he Secretary’s position on the ju-

risdiction of the federal courts is not entitled to deference” and citing cases for

the proposition that “[f]ederal courts routinely conclude that no deference is

owed” to federal agencies’ interpretations of federal-court jurisdiction).

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21-11765 Opinion of the Court 19

If all this were not enough, Plaintiffs provide another reason

why we must reject Defendants’ complete preemption argument:

causation. As we have explained, the PREP Act provides that, when

the Secretary of Health and Human Services publishes a declara-

tion recommending that certain covered countermeasures be taken

in response to a public-health emergency, “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 cov-

ered countermeasure.” 42 U.S.C. § 247d-6d(a)(1) (emphasis added).

Ms. Schleider died in late June of 2020. At the time of her death

covered countermeasures included “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 com-

ponents and constituent materials of any such product.” 85 Fed.

Reg. 15,198, 15,202 (Mar. 17, 2020). 5

For a covered person to have immunity under the PREP Act,

there must be some nexus—some “causal relationship”—between

the claimed loss and the administration or use of a covered coun-

termeasure. See § 247d-6d(a)(2)(B) (“The immunity under para-

graph (1) applies to any claim for loss that has a causal relationship

with the administration to or use by an individual of a covered

5 Additional covered countermeasures were subsequently added to this list.

See, e.g., Fed. Reg. 79,190, 79,194−96 (Dec. 9, 2020).

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20 Opinion of the Court 21-11765

countermeasure, including a causal relationship with the design, de-

velopment, clinical testing or investigation, manufacture, labeling,

distribution, formulation, packaging, marketing, promotion, sale,

purchase, donation, dispensing, prescribing, administration, licens-

ing, or use of such countermeasure.”) (emphasis added). This

causal relationship is captured by the phrases found in § 247d-

6d(a)(1): “caused by,” “arising out of,” “relating to,” and “resulting

from.”

Plaintiffs expressly allege in their complaint that Defendants

did not take or implement any covered countermeasures under the

PREP Act to prevent the spread of COVID-19 at Ms. Schleider’s

facility. Plaintiffs also attach and cite to an administrative complaint

filed in July of 2020 by Florida’s Agency for Health Care Admin-

istration against GVDB Operations, LLC d/b/a Grand Villa of

Delray East. That administrative complaint alleged in part that De-

fendants failed to follow infection control guidelines issued by the

Centers for Disease Control and Prevention, failed to carry out ad-

ministrative oversight, failed to implement timely procedures to

eliminate the spread of COVID-19 in the memory care unit upon

notification of the first confirmed cases, and failed to implement

and maintain infection control mechanisms to protect from a

known threat. Plaintiffs repeated these same allegations from the

AHCA complaint in their own complaint. For example, they spe-

cifically alleged in Count I (a survival claim under Fla. Stat. §

429.28) and Count II (a wrongful death claim under Fla. Stat. §

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21-11765 Opinion of the Court 21

429.28) that Defendants acted negligently in, among other things,

failing to implement proper COVID-19 prevention precautions.6

These allegations in the complaint control for purposes of

the preemption analysis. See Caterpillar, 482 U.S. at 396−97. And

as the Sixth Circuit has explained, “an allegation that [a defendant]

failed to use a COVID-19 countermeasure [like] . . . facemasks . . .

or to administer another [like] . . . an infection protocol . . . differs

in kind from an allegation that [the defendant’s] administration or

[the patient’s] use of those countermeasures caused [her] death.”

Hudak v. Elmcraft of Sagamore Hills, 58 F.4th 845, 856 (6th Cir. 2023).

So if Defendants here failed to implement, administer, or use any

covered countermeasure, then the death of Ms. Schleider was not

“caused by,” and did not “aris[e] out of,” or “relat[e] to,” or “result[

] from” the “administration to or the use of . . . a covered counter-

measure.” § 247d-6d(a)(1).

All of this means that Defendants here—at least at this stage

of the case—are not entitled to immunity under the PREP Act,

which requires a causal relationship to the use or administration of

a covered countermeasure. See § 247d–6d(a)(2)(B). We agree with

the Fifth, Sixth, and Seventh Circuits and a number of district

courts on this point. See, e.g., Manyweather v. Woodlawn Manor, Inc.,

40 F.4th 237, 245−46 (5th Cir. 2022); Hudak, 58 F.4th at 855−56;

Martin, 37 F.4th at 1213−14; Pirotte v. HCP Prairie Vill. KS OPCO LLC,

6 Plaintiffs also alleged in Counts I and II that Defendants’ conduct rose to the

level of willful misconduct or gross negligence, but those allegations were pled

in the alternative.

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22 Opinion of the Court 21-11765

580 F. Supp. 3d 1012, 1023−24 (D. Kan. 2022); Khalek v. South Denver

Rehab., LLC, 543 F. Supp. 3d 1019, 1027−28 (D. Colo. 2021).

2. Plaintiffs’ state-law causes of action are not completely preempted

As noted, the PREP Act provides exclusive federal jurisdic-

tion for its willful misconduct cause of action. See 42 U.S.C. § 247d-

6d(e)(1). But Plaintiffs did not assert an explicit claim for willful

misconduct under, and as defined by, the PREP Act. Instead, Plain-

tiffs asserted state-law causes of action for survival and wrongful

death under Florida Statute § 429.28. On appeal, we must there-

fore determine whether the PREP Act’s willful misconduct cause

of action completely preempts the state-law causes of action

brought by Plaintiffs. See Anderson, 539 U.S. at 8. In so doing, we

must consider whether Plaintiffs’ state-law causes of action are “in

reality, ‘purely a creature of’” the PREP Act’s willful misconduct

cause of action. Geddes, 321 F.3d at 1353 (quoting Caterpillar, 482

U.S. at 393).

Under Florida law, a ‘“[c]laim for residents’ rights violation’

. . . means a negligence claim alleging injury to or the death of a

resident arising out of an asserted violation of the rights of a resi-

dent under § 429.28 or an asserted deviation from the applicable

standard of care.” Fla. Stat. § 429.293(1)(a). And to recover either

survival or wrongful death damages, the remedies specified in

Plaintiffs’ complaint, Plaintiffs must allege “a claim for the resi-

dent’s rights or for negligence.” Id. § 429.29.

Here, in support of their Florida Statute § 429.28 claims,

Plaintiffs alleged that Defendants acted negligently by failing to act

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21-11765 Opinion of the Court 23

“reasonably in the care of” Sara Schleider. Plaintiffs also alleged

Defendants’ negligence was the proximate cause of their injuries

and damages. In asserting state-law causes of action for negligence,

under a negligence theory of liability, Plaintiffs have asserted

“rights and obligations [that are] independent of” the PREP Act’s

definition of willful misconduct. Caterpillar, 482 U.S. at 395; see 42

U.S.C. § 247d-6d(c)(1)(A) (“The criterion stated in [the PREP Act’s

definition of willful misconduct] establish[es] a standard of liability

that is more stringent than a standard of negligence in any form”).

To be sure, within their causes of action under Florida Stat-

ute § 429.28, Plaintiffs also alleged that Defendants’ “conduct rose

to the level of willful misconduct or gross negligence.” And De-

fendants contend that those allegations of willful misconduct are

completely preempted. But complete preemption—a removal

doctrine distinct from ordinary preemption—“is rare.” Maglioli, 16

F.4th at 408. Complete preemption of a state-law cause of action

only occurs where “a federal statute wholly displaces th[at] state-

law cause of action,” Anderson, 539 U.S. at 8—i.e., where “an indi-

vidual . . . could have brought his claim under” a federal statute

that converts his state-law causes of action into a federal claim “and

where there is no other independent legal duty that is implicated

by [the] defendant’s actions,” Davila, 542 U.S. at 210.

For example, in Davila, the Supreme Court determined that

the Employment Retirement Income Security Act (“ERISA”) com-

pletely preempted the relevant plaintiffs’ state-law causes of action.

Id. at 221. In so doing, the Supreme Court first looked to the federal

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24 Opinion of the Court 21-11765

statute and determined that “ERISA includes expansive pre-emp-

tion provisions, which are intended to ensure that employee bene-

fit plan regulation would be ‘exclusively a federal concern.’” Id. at

208 (citation omitted) (quoting Alessi v. Raybestos–Manhattan, Inc.,

451 U.S. 504, 523 (1981)). The Supreme Court then sought to de-

termine whether the plaintiffs’ “causes of action [fell] ‘within the

scope’ of ERISA” by examining the plaintiffs’ complaints and the

relevant state-law causes of action. Id. at 211. As to the plaintiffs’

complaints, the Supreme Court determined that “the only action[s]

complained of” concerned the “administration of . . . ERISA-regu-

lated benefit plan[s].” Id. As to the relevant state-law causes of

action, the Supreme Court held that “[t]he duties imposed . . . do

not arise independently of ERISA” because “the failure of the

[ERISA-regulated] plan itself to cover the requested treatment

would be the proximate cause of” the plaintiffs’ injuries for their

state-law causes of action. Id. at 212–13. The Supreme Court

therefore held that the plaintiffs’ claims were completely

preempted, and were removable to federal court, because they

brought their “suit only to rectify a wrongful denial of benefits

promised under ERISA-regulated plans, and [did] not attempt to

remedy any violation of a legal duty independent of ERISA.” Id. at

214.

Similarly, in Anderson, the Supreme Court held that the rel-

evant plaintiffs’ claims were completely preempted because they

asserted state-law claims for usury against national banks and “the

National Bank Act . . . provide[s] an exclusive federal cause of ac-

tion for usury against national banks.” 539 U.S. at 10–11.

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21-11765 Opinion of the Court 25

Accordingly, the Supreme Court found that there could be “no

such thing as a state-law claim of usury against a national bank”

and thus concluded that the plaintiffs’ cause of action against na-

tional banks “only [arose] under federal law and could . . . be re-

moved.” Id. at 11.

In contrast to the acts examined in Davila and Anderson, the

PREP Act does not broadly preempt all state-law claims concerning

COVID-19 countermeasures—although it does provide a defense

to liability against those claims—and the PREP Act’s cause of ac-

tion for willful misconduct does not preempt state-law causes of

action, like Florida Statute § 429.28, for negligence. And in further

contrast, Plaintiffs’ Florida Statute § 429.28 claims—which allege

that Defendants acted negligently and that Defendants’ negligence

proximately caused Plaintiffs’ injuries—complain of actions that

are outside the scope of the PREP Act’s cause of action for willful

misconduct. 7 In other words, Plaintiffs have not brought their “suit

only to rectify” willful misconduct under the PREP Act because

they are “attempt[ing] to remedy [a] violation of a legal duty inde-

pendent of” the PREP Act’s cause of action for willful miscon-

duct—i.e., Defendants’ duty to exercise non-negligent care under

Florida Statute § 429.28. Cf. Davila, 542 U.S. at 210–14.

7 Because Plaintiffs alleged that Defendants are liable for violating Florida Stat-

ute § 429.28 under a negligence theory of liability, we need not decide whether

the PREP Act would preempt a claim, under Florida Statute § 429.28, prem-

ised exclusively on willful misconduct.

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26 Opinion of the Court 21-11765

Therefore, the PREP Act’s willful misconduct cause of ac-

tion does not completely preempt, i.e., “wholly displace[],” Plain-

tiffs’ “state-law cause[s] of action” for survival and wrongful death

under Florida Statute § 429.28. Dial, 541 F.3d at 1047 (quoting An-

derson, 539 U.S. at 8–9). And Plaintiffs’ allegations of willful mis-

conduct, within their broader state-law causes of action for negli-

gence under Florida Statute § 429.28, do not convert Plaintiffs’

state-law claims into claims that are completely preempted by the

PREP Act’s narrow cause of action for willful misconduct. 8 See,

e.g., Maglioli, 16 F.4th at 411 (holding that the plaintiffs’ state-law

causes of action for negligence “could not have [been] brought . . .

under § 247d-6d(d)(1) of the PREP Act,” notwithstanding the plain-

tiffs’ allegations that the defendants “conduct was grossly reckless,

willful, and wanton”); Solomon v. St. Joseph Hosp., 62 F.4th 54, 61 (2d

Cir. 2023) (“[C]laims for medical malpractice, negligence, and gross

negligence are plainly not ‘within the scope’ of willful misconduct

[under the PREP Act].”); Hudak, 58 F.4th at 855 (“[T]he PREP Act

8 At oral argument, Plaintiffs conceded that they included these allegations to

support a future claim for punitive damages. (Oral Arg. Recording, 21-

11765.mp3 at 26:00–26:30.) But Plaintiffs have not yet asserted an independent

claim for willful misconduct, and a claim for willful misconduct does not ap-

pear to be a prerequisite for recovering punitive damages. See Fla. Stat.

§ 429.29 (stating that a plaintiff may seek “punitive damages for violation of

the rights of a resident or negligence”). In any event, speculation as to a future

claim for willful misconduct is not grounds for removal. See Caterpillar, 482

U.S. at 398 (“The fact that a defendant might ultimately prove that a plaintiff’s

claims are pre-empted . . . does not establish that they are removable to federal

court.”).

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21-11765 Opinion of the Court 27

does not create a federal cause of action for all claims arising under

the Act.”); Saldana, 27 F.4th at 688 (“But finding that one claim may

be preempted is different than finding that the federal statutory

scheme is so comprehensive that it entirely supplants state law

causes of action, such as the Saldanas’ other causes of action for

elder abuse, custodial negligence, and wrongful death.”) (citation

and internal quotation marks omitted).

In sum, because Plaintiffs’ state-law causes of action for neg-

ligence under Florida Statute § 429.28 cannot be brought under the

PREP Act’s cause of action for willful misconduct, Plaintiffs’ state-

law causes of action are not completely preempted by that cause of

action. Indeed, Defendants seem to concede that if Plaintiffs’ iso-

lated allegations of willful misconduct, within their broader causes

of actions under Florida Statute § 429.28, are preempted by the

PREP Act’s cause of action for willful misconduct, then Plaintiffs

will still have “residual negligence claims.” Defendants’ preemp-

tion argument is therefore an ordinary preemption defense—i.e.,

that Plaintiffs’ claims should be dismissed to the extent that they

are asserting claims for willful misconduct under the PREP Act, not

that Plaintiffs’ claims under Florida Statute § 429.28 are wholly dis-

placed by the PREP Act’s cause of action for willful misconduct.

And “a case may not be removed to federal court on the basis of”

an ordinary federal preemption defense. Geddes, 321 F.3d at 1352–

53 (emphasis in the original).

D. Embedded Federal Question

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28 Opinion of the Court 21-11765

Defendants’ final argument in favor of removal is that Plain-

tiffs’ claims raise an embedded federal question concerning “the ap-

plication or non-application of the PREP Act.” In support of this

argument, Defendants rely on Grable & Sons Metal Products, Inc. v.

Darue Engineering & Manufacturing, 545 U.S. 308 (2005).

In Grable, the Supreme Court recognized that “in certain

cases federal-question jurisdiction will lie over state-law claims that

implicate significant federal issues.” 545 U.S. at 312. This doctrine

“captures the commonsense notion that a federal court ought to be

able to hear claims recognized under state law that nonetheless

turn on substantial questions of federal law.” Id. But federal courts

have rejected a more “expansive view that [the] mere need to apply

federal law in a state-law claim will suffice” to trigger the doctrine.

Adventure Outdoors, Inc., 552 F.3d at 1300 (quoting Grable, 545 U.S.

at 313).

The Grable doctrine provides that even when a state court

complaint pleads only state law causes of action “federal jurisdic-

tion over a state law claim will lie if a federal issue is: (1) necessarily

raised, (2) actually disputed, (3) substantial, and (4) capable of reso-

lution in federal court without disrupting the federal-state balance

approved by Congress.” Gunn v. Minton, 568 U.S. 251, 258 (2013).

However, the Grable doctrine is “still 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.” Caterpillar Inc., 482 U.S. at

392. A plaintiff invoking Grable as the basis for federal jurisdiction

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21-11765 Opinion of the Court 29

must still show that the alleged federal issue arises on the face of

the complaint. “Th[is] rule makes the plaintiff the master of the

claim; he or she may avoid federal jurisdiction by exclusive reliance

on state law.” Id.

Here, Plaintiffs have asserted claims that arise under Flor-

ida’s “Resident bill of rights” for assisted living facilities. Defend-

ants contend that federal jurisdiction exists under Grable because of

the application of the PREP Act to Plaintiffs’ claims based on two

of Defendants’ potential defenses to liability: (1) ordinary preemp-

tion under the PREP Act; and (2) immunity under the PREP Act.

We conclude that this argument fails, and that Grable does not con-

fer federal jurisdiction. First, the complaint does not satisfy the

well-pleaded complaint rule. No federal claim appears on the face

of the state court complaint. Second, the application of the PREP

Act to Plaintiffs’ claims based on potential defenses of ordinary

preemption and immunity under the PREP act do not confer fed-

eral jurisdiction under Grable. These defenses cannot support fed-

eral jurisdiction. Indeed, it is a bedrock principle that a complaint

“brought upon a state statute does not arise under an act of Con-

gress or the Constitution of the United States.” Gully v. First Nat.

Bank in Meridian, 299 U.S. 109, 116 (1936). And it is established law

that “[a] defense that raises a federal question is inadequate to con-

fer federal jurisdiction.” Merrell Dow Pharm. Inc. v. Thompson, 478

U.S. 804, 808 (1986). Indeed, “it is now settled law that a case

may not be removed to federal court on the basis of a federal de-

fense, including the defense of preemption, even if the defense is

anticipated in the plaintiff’s complaint, and even if both parties

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30 Opinion of the Court 21-11765

concede that the federal defense is the only question truly at issue.”

Caterpillar Inc., 482 U.S. at 393. This type of defensive preemption,

sometimes called “ordinary preemption,” which “asserts that the

state claims have been substantively displaced by federal law,” is

also subject to the well-pleaded complaint rule. See Geddes, 321

F.3d at 1352. Thus, while ordinary preemption provides an affirm-

ative defense to state-law claims, it will not provide a basis for re-

moval to federal court. See Conn. State Dental Ass’n v. Anthem Health

Plans, Inc., 591 F.3d 1337, 1343-44 (11th Cir. 2009).

“Grable emphasized that it takes more than a federal element

‘to open the “arising under” door.’ This case cannot be squeezed

into the slim category Grable exemplifies.” Empire Healthchoice As-

sur., Inc. v. McVeigh, 547 U.S. 677, 701 (2006) (citation omitted). We

thus conclude that the district court correctly determined that Gra-

ble does not provide a basis for federal jurisdiction.

V. CONCLUSION

For all these reasons, we affirm the district court’s order re-

manding this case to state court.

AFFIRMED.

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21-11765 LUCK, J., dissenting 1

LUCK, Circuit Judge, dissenting:

I.

I agree with the majority opinion on the complete preemp-

tion basics. I agree that Aetna Health Inc. v. Davila’s two-part test

determines if the doctrine applies—we must ask if (1) Congress has

created an exclusive federal cause of action and (2) the plaintiff al-

leged a state-law “claim [that] comes within the scope of [it].” 542

U.S. 200, 207–08 (2004) (quoting Beneficial Nat’l Bank v. Anderson,

539 U.S. 1, 8 (2003)).

I also agree with the majority opinion on how Davila prong

one applies to this case. The PREP Act creates an exclusive federal

cause of action against covered persons. See 42 U.S.C.

§ 247d-6d(d)(1). The cause of action, as the majority opinion con-

cludes, is not a “catchall” that completely preempts all state-law

claims related to COVID-19 and countermeasures taken or not

taken. Instead, the PREP Act’s “exclusive [f]ederal cause of action”

is “for death or serious physical injury proximately caused by will-

ful misconduct . . . by [a] covered person.” Id.

But where I part from the majority opinion is on Davila

prong two. Under the second prong, a state-law claim is “within

the scope of” an exclusively federal one “if [the plaintiff], at some

point in time, could have brought his claim under [the exclusive

cause of action], and where there is no other independent legal

duty that is implicated by a defendant’s actions.” Davila, 542 U.S.

at 210 (citation omitted).

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2 LUCK, J., dissenting 21-11765

The majority opinion concludes that prong two is satisfied

only if a plaintiff alleges claims that are “purely . . . creature[s] of

the PREP Act’s willful-misconduct cause of action” or are “wholly

displace[d]” by it. The majority opinion then says that the com-

plaint in this case lacks purely federal claims because, although

parts of the four Assisted Living Facilities Act counts alleged willful

misconduct, other parts of them alleged negligence. In other

words, the majority opinion concludes that Davila prong two isn’t

satisfied because no claim seeks to exclusively or “only . . . rectify

willful misconduct.” But Davila prong two doesn’t require that the

state-law claims precisely duplicate the PREP Act’s cause of action.

So long as at least some portions of the claims alleged willful mis-

conduct within the PREP Act’s scope, that’s enough.

That’s the approach we’ve taken when applying Davila

prong two in the ERISA context. In Connecticut State Dental As-

sociation v. Anthem Health Plans, Inc., for example, two plaintiff-

dentists contracted with the defendant health-plan provider “to

provide professional services in exchange for compensation.” 591

F.3d 1337, 1342 (11th Cir. 2009). The plan provider allegedly un-

derpaid the dentists, so they filed a five-count complaint asserting

state-law claims for breach of contract, breach of the duty of good

faith and fair dealing, unfair trade practices, negligent misrepresen-

tation, and unjust enrichment. Id. The provider removed the case

to federal court and the district court denied the dentists’ motion

to remand. Id.

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21-11765 LUCK, J., dissenting 3

We affirmed the district court’s denial because ERISA cre-

ated an exclusive cause of action and “portions of the[ dentists’]

claims” fell within the scope of it. 1 Id. at 1343–44, 1350–53. The

claims’ substance, we explained, implicated whether the dentists

had a “right of payment” under the provider contracts and, if so,

the “rate of payment” the dentists were due. Id. at 1350–51. The

right of payment allegations “concern[ed] coverage issues that [fell]

within ERISA” but the rate of payment ones did not. Id. (citing

Lone Star OB/GYN Assocs. v. Aetna Health Inc., 579 F.3d 525, 531

(5th Cir. 2009)). Faced with what was “really a hybrid claim, part

of which [wa]s within [ERISA] and part of which [wa]s beyond the

scope of ERISA,” we still concluded Davila prong two was satisfied.

Id. at 1350–53. It was enough that the right of payment allegations

“stray[ed] from the boundaries of the[ p]rovider [a]greements into

ERISA territory” although the rate of payment ones “[we]re based

on a separate legal duty.” Id. at 1353. With Davila satisfied as to

parts of the claims, there was federal jurisdiction over the entire

suit. Id. (“[W]here removal jurisdiction exists over a completely

preempted claim, the district court has jurisdiction over any claims

joined with the preempted claim.” (citations omitted)).

We applied Davila prong two the same way in Borrero v.

United Healthcare of New York, Inc., 610 F.3d 1296 (11th Cir.

2010). The Borrero complaints asserted state-law claims based on

1

We reversed the denial as to a separate complaint filed by a dental associa-

tion. Conn. State Dental, 591 F.3d at 1357.

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4 LUCK, J., dissenting 21-11765

“[m]any . . . allegations . . . , for practices like downcoding and

bundling,” that “d[id] not implicate ERISA.” Id. at 1304–05 (em-

phasis added). Pointing to those allegations, “based predominantly

on [provider] contracts,” the plaintiffs argued none of their claims

were completely preempted by ERISA. Id. at 1303–04. But even

with the many non-ERISA downcoding and bundling allegations,

“at least some of the allegations”—those regarding “wrongfully de-

nied benefits”—“[we]re dependent on ERISA, [and] those claims

[we]re completely preempted.” Id. at 1304–05 (emphasis added);

see also id. at 1303 (reasoning that the plaintiffs “ha[d] not pursued

exclusively state law claims, but instead ha[d] cast their pleadings

in a way that implicate[d] federal law as well”). So, we concluded,

federal jurisdiction existed to entertain the entire suit. See id. at

1304 (“This gives a federal court federal question jurisdiction over

th[e preempted] claims and supplemental jurisdiction over the re-

maining claims.”).

Our approach in Connecticut State Dental and Borrero is

consistent with the Supreme Court’s. In Davila, for example, the

Supreme Court explained that prong two is satisfied so long as a

state-law claim could’ve been brought under federal law and is at

least partially dependent on it. See 542 U.S. at 213–14 (concluding

the plaintiffs’ claims fell within ERISA’s scope because “interpreta-

tion of . . . [their] benefit plans form[ed] an essential part of their

[state-statutory] claim”). It’s only when a state-law claim is “en-

tirely independent” that it falls outside the scope of an exclusive

cause of action. Id. (emphasis added) (“[The defendants]’ potential

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21-11765 LUCK, J., dissenting 5

liability . . . derives entirely from the particular rights and obliga-

tions established by the benefit plans. So, unlike the state-law

claims in Caterpillar [Inc. v. Williams, 482 U.S. 386 (1987), the

plaintiffs]’ causes of action are not entirely independent of the fed-

erally regulated contract itself.”). And, the Court continued, we

cannot deem a state-law claim entirely independent simply because

it’s not “strictly duplicative” of a federal one or it “attempts to au-

thorize remedies beyond those authorized by [a federal one].” Id.

at 214–16; see id. at 212–14 (rejecting the plaintiffs’ argument that

their state-statutory claim wasn’t dependent on ERISA because the

statute imposed a “duty of ordinary care” not provided for in

ERISA or an ERISA plan); id. at 216 (citing Ingersoll-Rand Co. v.

McClendon, 498 U.S. 133, 136 (1990), and Metropolitan Life Insur-

ance Co. v. Taylor, 481 U.S. 58, 61 (1987), where the Court found

ERISA preempted claims for “mental anguish” damages despite

“there [being] no [mental anguish] element in an ordinary suit

brought under ERISA”); id. at 214–15 (explaining again that the

Court has found complete preemption where the plaintiffs “sought

remedies [under state law] beyond those authorized under

ERISA”). Requiring strict duplicates “would elevate form over sub-

stance” and risk undermining Congress’s intent to make certain

federal remedies exclusive. Id. at 214–16 (marks and citation omit-

ted).

Looking to the substance of plaintiffs’ state-law claims here,

Davila prong two is satisfied because “at least some portions” of

the plaintiffs’ claims are within the scope of the PREP Act’s

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6 LUCK, J., dissenting 21-11765

exclusive cause of action for death caused by covered persons’ will-

ful misconduct. See Conn. State Dental, 591 F.3d at 1342; see also

Borrero, 610 F.3d at 1303–05. Each count alleged that the defend-

ant facility operators’ “acts and omissions” caused Schleider’s death

from COVID-19. 2 And each count asserted that those acts and

omissions “rose to the level of willful misconduct” and “w[ere] in

disregard of a known or obvious risk that was so great as to make

it highly probable that the harm [they] caused[] outweighed any

actions [the operators] took.” “Specifically,” the plaintiffs alleged,

the operators’ conduct rose to willful misconduct in three ways:

(1) they “[f]ailed to provide or require personal protective equip-

ment to workers and residents,” (2) they “[f]ailed to put in place

adequate protection measures in the face of a global pandemic

which put at high risk[] its patients,” and (3) they “[w]ithheld infor-

mation” from their staff, residents, and residents’ family members.

The plaintiffs even provided “[a] specific example” of the third the-

ory—that the operators “refused to respond to . . . Schleider’s fam-

ily when they repeatedly requested information about her status

and condition.”

These willful misconduct allegations parrot the elements of

a PREP Act cause of action. 42 U.S.C. § 247d-6d(d)(1) (creating the

exclusive cause of action “against a covered person for

death . . . proximately caused by willful misconduct . . . by such

2

Plaintiffs conceded during oral argument that the operators are “covered per-

sons.” See 42 U.S.C. § 247d-6d(d)(1), (i)(2).

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21-11765 LUCK, J., dissenting 7

covered person” (emphasis added)); id. § 247d-6d(c)(1)(A) (listing

the cause of action’s elements as “an act or omission that is

taken . . . intentionally to achieve a wrongful purpose,” “know-

ingly” without justification, and “in disregard of a known or obvi-

ous risk that is so great as to make it highly probable that the harm

will outweigh the benefit” (emphasis added)). Indeed, the plaintiffs

conceded during oral argument that they alleged willful miscon-

duct to pursue punitive damages under Florida’s Assisted Living

Facilities Act, which required that “the defendant had actual

knowledge of the wrongfulness of the conduct and the high prob-

ability that injury or damage to the claimant would result and, de-

spite that knowledge, intentionally pursued that course of con-

duct.” See Fla. Stat. § 429.297(2)(a). This is a close match with the

“willful misconduct” required under the PREP Act’s exclusive

cause of action. See 42 U.S.C. § 247d-6d(c)(1)(A).

To be sure, the plaintiffs’ claims also include many negli-

gence allegations beyond the scope of the PREP Act’s cause of ac-

tion. But we found Davila prong two was satisfied although the

Borrero claims were based on “[m]any . . . allegations” not within

the scope of the federal action. Borrero, 610 F.3d at 1304–05. And

we found Davila prong two was satisfied in Connecticut State Den-

tal although “part[s] of” the claims were “beyond the scope” of the

federal action. Conn. State Dental, 591 F.3d at 1351; see also id. at

1342, 1350–51 (noting that “[t]he crux of the allegations” was un-

derpayment, but a “closer look” showed the allegations also con-

cerned the plaintiffs’ right of payment under ERISA). We should

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8 LUCK, J., dissenting 21-11765

do the same here. The plaintiffs’ claims are not “entirely independ-

ent of the” PREP Act, see Davila, 542 U.S. at 213–14, because the

willful misconduct allegations “stray . . . into [PREP Act] terri-

tory,” see Conn. State Dental, 591 F.3d at 1353. Because parts of

the claims strayed into PREP Act territory, the district court had

jurisdiction over the entire suit—including supplemental jurisdic-

tion over the negligence parts. See Conn. State Dental, 591 F.3d at

1353; Borrero, 610 F.3d at 1304–05.

II.

As an alternative reason for finding that Davila prong two

was not satisfied, the majority opinion concludes that omissions—

the failure to administer or use covered countermeasures—fall out-

side the scope of the PREP Act. Because it views the plaintiffs’

complaint as alleging only omissions rather than affirmative acts,

the majority opinion concludes that the facility operators “are not

entitled to immunity under the PREP Act” and, therefore, none of

the claims are completely preempted by the Act. For two reasons,

I think the majority opinion’s alternative reason for affirming

misses the mark.

First, the PREP Act’s “exclusive [f]ederal cause of action” for

“willful misconduct” includes willful “omission[s].” See 42 U.S.C.

§ 247d-6d(c)(1)(A), (d)(1). The PREP Act uses “act or omission”

throughout the provisions defining this “exclusive [f]ederal cause

of action.” See id. (emphasis added). It’s in the definition of “willful

misconduct,” id § 247d-6d(c)(1)(A); it’s in the grant of regulatory

authority to define the scope of the cause of action, id. § 247d-

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21-11765 LUCK, J., dissenting 9

6d(c)(2)(A); it’s in the statutory defenses, id. § 247d-6d(c)(4); it’s in

the statutory exclusions, id. § 247d-6d(c)(5); and it’s even in the

statutory pleading requirements. Id. § 247d-6d(d)(3)(A).

Applying the exclusive federal cause of action’s pleading re-

quirements here, the complaint alleges that the facility operators’

omissions related to the failure to administer or use covered coun-

termeasures amounted to “willful misconduct” and caused Schlei-

der’s death from COVID-19. These alleged willful omissions could

have been brought as a claim under the PREP Act’s exclusive fed-

eral cause of action and do not involve an independent legal duty

outside the PREP Act’s scope. See id. § 247d-6d(c), (d). So, Davila

part two is satisfied based on the alleged willful omissions alone.

See 542 U.S. at 210.

The majority opinion reaches the conclusion that it does by

focusing on the PREP Act’s immunity provision instead of the pro-

visions defining the scope of the exclusive federal cause of action.

The facility operators “are not entitled to immunity under the

PREP Act,” the majority opinion says. But “immunity under the

PREP Act” is a defense to liability and is separate and distinct from

the scope of the exclusive federal cause of action. See Geddes v.

Am. Airlines, Inc., 321 F.3d 1349, 1352–53 (11th Cir. 2003) (explain-

ing that affirmative defenses are irrelevant to complete preemp-

tion). “Rather than . . . a defense,” complete preemption is a “ju-

risdictional rule” that is implicated “when a complaint purports to

raise only state law claims” but actually raises claims within an ex-

clusive federal cause of action, “transform[ing] the state claim[s]

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10 LUCK, J., dissenting 21-11765

into [federal] one[s]” for jurisdictional purposes. See id. at 1353.

The relevant inquiry for complete preemption compares the alle-

gations in the complaint to the statute creating the exclusive federal

cause of action. See, e.g., Conn. State Dental, 591 F.3d at 1350–

1354 (comparing ERISA’s civil enforcement provision to the alle-

gations in the plaintiffs’ complaint). By looking to the immunity

provision, the majority opinion overlooks the most relevant parts

of the PREP Act defining the cause of action as including “omis-

sion[s].” See 42 U.S.C. § 247d-6(c), (d).

Second, even if the exclusive federal cause of action in the

PREP Act only included acts and not omissions, the plaintiffs’ com-

plaint alleges affirmative “acts” (in addition to omissions) related to

the administration and use of covered countermeasures. The com-

plaint, for example, alleged that the facility operators denied em-

ployees’ requests for covered countermeasures, that the facility op-

erators’ employees improperly used covered countermeasures,

that the facility operators had training on the use of covered coun-

termeasures but the training was inadequate, and that the facility

operators denied its employees and its residents information about

countermeasures. The complaint makes plain that it alleges acts of

“malfeasance,” and those “acts . . . rose to the level of willful mis-

conduct.” So, even if “willful misconduct” somehow does not in-

clude willful “omission[s],” the complaint still falls within the scope

of the PREP Act’s exclusive federal cause of action because it al-

leges willful “acts” related to the administration and use of covered

countermeasures. See 42 U.S.C. § 247d-6d(c)(1)(A), (d)(1).

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21-11765 LUCK, J., dissenting 11

III.

Because I believe the plaintiffs’ complaint is completely

preempted by the exclusive federal cause of action in the PREP Act,

I respectfully dissent.