Mitchell v. Advanced HCS

Case: 21-10477 Document: 00516233741 Page: 1 Date Filed: 03/10/2022

United States Court of Appeals

for the Fifth Circuit

United States Court of Appeals

Fifth Circuit

FILED

March 10, 2022

No. 21-10477 Lyle W. Cayce

Clerk

Troy Mitchell, Individually and on Behalf of the

Estate of Emma Mitchell,

Plaintiff—Appellee,

versus

Advanced HCS, L.L.C., doing business as Wedgewood Nursing

Home; Wedgewood Rehab; Nursing GS, L.L.C.; TOM GS,

L.L.C.,

Defendants—Appellants.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:21-CV-155

Before Owen, Chief Judge, and Clement and Engelhardt, Circuit

Judges.

Kurt D. Engelhardt, Circuit Judge:

Federal courts have limited jurisdiction. We may only adjudicate cases

and controversies to which the federal “judicial Power” extends. U.S.

Const. art. III; see Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 372

(1978) (explaining that “Acts of Congress” likewise limit the jurisdiction of

federal courts). Typically, this power does not extend to state-law disputes

between citizens of the same state. See 28 U.S.C. § 1331; 28 U.S.C. § 1332.

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Defendants-Appellants ask us to exercise power over such a dispute. But the

trio of jurisdictional doctrines they invoke are inapplicable here, so we

cannot. 1 We therefore AFFIRM the district court and REMAND with

directions to further REMAND this case to state court.

I

Emma Mitchell, a resident of Wedgewood nursing home, tragically

passed away in May 2020 from pneumonia, heart disease, and complications

from COVID-19. Plaintiff-Appellee Troy Mitchell (“Mitchell”), son of

Emma Mitchell and executor of her estate, sued Defendants-Appellants

(collectively “Wedgewood”) in Texas state court in December 2020.

Mitchell alleged state-law causes of action for medical negligence, corporate

negligence, and gross negligence. There is no dispute that both parties are

citizens of Texas.

Wedgewood removed the case to federal district court. It argued that

the Public Readiness and Emergency Preparedness Act (“PREP Act” or

“the Act”) completely preempted Mitchell’s state-law claims and created

federal jurisdiction, that it could remove under the federal officer removal

statute, and that jurisdiction existed under the Grable doctrine. Mitchell

moved to remand back to state court. The district court granted the motion,

holding that the Act did not completely preempt Mitchell’s state-law claims.

1

At least two other federal Courts of Appeals have addressed near-identical

arguments in near-identical cases and have likewise rejected them. In Maglioli v. All. HC

Holdings LLC, 16 F.4th 393, 400 (3d Cir. 2021), the Third Circuit held as we do here and

later declined to take the case en banc. Maglioli v. All. HC Holdings LLC, No. 20-2833 (3d.

Cir. Feb. 7, 2022). After oral argument in this case, the Ninth Circuit decided Saldana v.

Glenhaven Healthcare LLC, --- F.4th ----, 2022 WL 518989 (9th Cir. Feb. 22, 2022), holding

likewise. Although not binding on this court, we find the reasoning of our sister circuits

both sound and persuasive, particularly given the similarities between those cases and this

one.

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Mitchell v. Advanced HCS, LLC, No. 4:21-CV-00155-P, 2021 WL 1247884,

at *4–5 (N.D. Tex. Apr. 5, 2021). The court did not, however, address

Wedgewood’s alternate bases for removal. See generally id.

Because this appeal concerns jurisdiction alone, we review the district

court’s holding de novo. Tenth St. Residential Ass’n v. City of Dallas, 968 F.3d

492, 498 (5th Cir. 2020).

II

We first address whether the PREP Act completely preempts

Mitchell’s state-law negligence claims. Generally, a defendant may only

remove a case to federal court if the plaintiff could have originally filed the

case there. 28 USC § 1441(a). If a dispute does not satisfy diversity

jurisdiction then, subject to the “well-pleaded complaint rule,” a complaint

must raise a federal question to be removable. Caterpillar Inc. v. Williams, 482

U.S. 386, 392 (1987). That federal question must be “presented on the face”

of the complaint to satisfy the rule. Id.

Complete preemption is an exception to the well-pleaded complaint

rule. 2 It creates federal jurisdiction if Congress, by statute, “completely pre-

empt[s] a particular area [such] that any civil complaint raising [the] select

group of claims is necessarily federal in character.” Metro. Life Ins., 481 U.S.

at 63–64; see GlobeRanger Corp. v. Software AG, 691 F.3d 702, 705 (5th Cir.

2

Complete preemption should not be confused with ordinary or defensive

preemption. Complete preemption gives federal courts the power to adjudicate a case in

the first place, Elam v. Kan. Cty. S. Ry. Co., 635 F.3d 796, 803 (5th Cir. 2011), while

defensive preemption is “an affirmative defense that a defendant can invoke ‘to defeat a

plaintiff’s state-law claim on the merits by asserting the supremacy of federal law.’” Spear

Mktg. Inc. v. BancorpSouth Bank, 844 F.3d 464, 467 n.3 (5th Cir. 2016) (quoting Cmty. State

Bank v. Strong, 651 F.3d 1241, 1261 n.16 (11th Cir. 2011)). Because defenses are not raised

on the face of the complaint, defensive preemption does not create federal question

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

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2012). That happens when a federal law creates an “exclusive cause of

action” and “set[s] forth procedures and remedies governing that cause of

action,” such that it “wholly displaces the state-law cause of action.”

Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 8 (2003).

To establish complete preemption, Wedgewood must therefore show

that: “(1) the statute contains a civil enforcement provision that creates a

cause of action that both replaces and protects the analogous area of state

law; (2) there is a specific jurisdictional grant to the federal courts for

enforcement of the right;” and (3) there is a clear congressional intent that

the federal cause of action be exclusive. Gutierrez v. Flores, 543 F.3d 248, 252

(5th Cir. 2008) (quoting Johnson v. Baylor Univ., 214 F.3d 630, 632 (5th Cir.

2000)). Once established, the question becomes whether Mitchell “could

have brought” his state-law claims under the federal cause of action. Aetna

Health Inc. v. Davila, 542 U.S. 200, 210 (2004). If so, they are completely

preempted.

A

Because this issue turns on the provisions of the PREP Act, we must

consider those provisions. 3 The Act contains a broad grant of immunity from

3

Wedgewood cites various agency documents, most notably an Advisory Opinion

by the Department of Health and Human Services’ Office of the General Counsel, in

support of its argument that the PREP Act completely preempts state-law negligence

claims. See Dep’t of Health & Human Servs., Off. of the Gen. Counsel,

Advisory Opinion 21-01 on the Pub. Readiness and Emergency

Preparedness Act Scope of Preemption Provision 2–3, (Jan. 8, 2021). But

agency interpretations of “[t]he scope of judicial review” are not entitled to Chevron

deference. Smith v. Berryhill, 139 S. Ct. 1765, 1778 (2019); see Texas v. EPA, 829 F.3d 405,

417 (5th Cir. 2016) (citations omitted) (holding that this court has the exclusive power to

determine its own jurisdiction and declining to afford deference); see generally Chevron,

U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). Nor are these

interpretations entitled to Skidmore deference. See generally Skidmore v. Swift & Co., 323

U.S. 134 (1944). As the district court noted, the Advisory Opinion “cites no cases”

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any suit “for loss[es] caused by, arising out of, relating to, or resulting from

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

countermeasure.” 42 U.S.C. § 247d-6d(a)(1). Thus, there must be a “causal

relationship” between an injury and the “administration to or use by an

individual of a covered countermeasure.” Id. § (a)(2)(B). These protections

only apply, however, if the Secretary of the Department of Health and

Human Services (the “Secretary” of “HHS”) makes a declaration through

the Federal Register, identifies a current or impending public health

emergency, identifies covered countermeasures, states that the immunity

provision is in effect, and meets other statutory requirements in the

declaration. Id. § (b). Courts lack jurisdiction to review any action by the

Secretary in making a declaration. Id. § (b)(7). Likewise, declarations

preempt state law. Id. § (b)(8).

For most who suffer an injury that falls under the immunity provision,

the sole remedy is compensation from the “Covered Countermeasures

Process Fund,” as determined by an administrative process. 42 U.S.C.

§ 247d-6e(a). This is likewise an exclusive remedy. Id. § (d)(4). There is an

exception for “death or serious physical injury proximately caused by willful

misconduct.” Id. § (d)(1). The United States District Court for the District

of Columbia has exclusive jurisdiction to adjudicate these willful-misconduct

claims. Id. § (e)(1). Generally, claimants must first exhaust the administrative

remedies discussed above before going to court. 42 U.S.C. § 247d-6e(d)(1).

supporting its conclusion. Mitchell, 2021 WL 1247884, at *4. Worse still, a “growing

consensus” of district courts—and the Third Circuit—rejected the agency’s position. Id.

at *2–3 (gathering cases); see Maglioli, 16 F.4th at 404. These documents therefore lack the

“power to persuade” and we do not afford them any deference. Cf. Skidmore, 323 U.S. at

140.

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The Act defines willful misconduct as “an act or omission that is taken

intentionally to achieve a wrongful purpose; knowingly without legal or

factual justification; and 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) (cleaned up). The Act also provides that the

definition of willful misconduct “shall be construed as establishing a standard

for liability that is more stringent than a standard of negligence in any form

or recklessness.” Id. § (c)(1)(B).

In sum, once the Secretary promulgates a declaration, most injuries

caused by a covered person administering a covered countermeasure are

subject to the sole remedy of a compensation fund. There is a narrow

exception for willful-misconduct claims, which proceed under an exclusive

federal cause of action in the United States District Court for the District of

Columbia, but only after the claimant has exhausted administrative remedies.

B

The Act does not completely preempt Mitchell’s state-law negligence

claims. First, the only cause of action it creates is for willful misconduct. See

42 U.S.C. § 247d-6e(d)(1). Assuming—without deciding—that the willful-

misconduct cause of action is completely preemptive, the question is whether

Mitchell “could have brought” the instant claims under that cause of action.

Aetna Health, 542 U.S. at 210. He could not. The Act clearly states that its

willful-misconduct cause of action creates “a standard for liability that is

more stringent than a standard of negligence in any form or recklessness.” 42

U.S.C. § 247d-6d(c)(1)(B) (emphasis added). Mitchell only asserts

negligence causes of action. Thus, the existence of the willful-misconduct

cause of action cannot completely preempt his claims. See Maglioli, 16 F.4th

at 409–10 (concluding that the Act is completely preemptive as to willful-

misconduct claims, but not as to state-law negligence claims).

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Second, the compensation fund that the Act creates is not completely

preemptive under this court’s precedents. To begin, a “compensation fund

is not a cause of action.” Id. at 411. It may be a civil-enforcement provision,

but such provisions must nevertheless “create[] a cause of action.”

Gutierrez, 543 F.3d at 252. As the Third Circuit noted, “neither the Supreme

Court nor any circuit court has extended complete preemption to a statute

because it created a compensation fund.” Maglioli, 16 F.4th at 412. We

decline to do so here.

Assuming arguendo that the compensation fund suffices as a cause of

action, the Act nevertheless does not create “a specific jurisdictional grant to

the federal courts for enforcement of the right.” Gutierrez, 543 F.3d at 252.

Instead, the Secretary oversees administration of the fund. 42 U.S.C. § 247d-

6e(a–b). Worse, the statute expressly withdraws jurisdiction from any court,

state or federal, concerning “any action [taken] by the Secretary” in doing

so. Id. § (b)(5)(C). The Act therefore fails to meet the second prong of our

complete-preemption test.

At oral argument, counsel for Wedgewood highlighted Elam as a case

supporting complete preemption here. Elam is instructive, but not in the way

Wedgewood imagines. That case concerned the Interstate Commerce

Commission Termination Act (“ICCTA”). Elam, 635 F.3d at 804. The

ICCTA created the Surface Transportation Board (“STB”) and gave that

body “exclusive federal regulatory jurisdiction” to regulate the railroads

“and [created] exclusive federal remedies” for violations of those

regulations. Id. But those exclusive federal remedies include, inter alia, a

general remedy for damages that “may” be brought as “a complaint with the

Board” or as “a civil action.” 49 U.S.C. § 11704(c)(1). Jurisdiction over those

civil actions resides with “the district courts of the United States” and

“State court[s] of general jurisdiction having jurisdiction of the parties.” Id.

§ (d)(1). In other words, the STB makes the rules, and an injured party can

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choose whether to file a complaint with the STB or have their day in court.

The plaintiff’s claim in Elam was completely preempted because it was based

on a state statute, “the effect of [which] [wa]s to economically regulate

[railroad] switching operations. Elam, 635 F.3d at 807 (5th Cir. 2011). The

ICCTA granted sole authority to do so to the STB, so that claim was

completely preempted.

The plain text of the PREP Act, as discussed above, compels the

opposite conclusion. Like the ICCTA, there is clear congressional intent that

the prescribed remedies be exclusive. But unlike the ICCTA, the PREP Act

does not create a general cause of action that would preempt state-law

negligence claims. Nor does it contain “a specific jurisdictional grant to the

federal courts” to adjudicate any such cause of action. Gutierrez, 543 F.3d at

252. The features of the ICCTA that make it completely preemptive are

conspicuously absent in the PREP Act.

The Second Circuit’s consideration of a different analogous statute is

likewise instructive. See In re WTC Disaster Site, 414 F.3d 352 (2d Cir. 2005).

That statute was the Air Transportation Safety and System Stabilization Act

of 2001 (“ATSSSA”) enacted after the September 11th terrorist attacks. Id.

at 373. Those eligible for recovery could either pursue compensation from

the ATSSSA’s Victim Compensation Fund or assert a statutory federal cause

of action in the United States District Court for the Southern District of New

York. Id. at 373–75. The court found that the statute’s language showed a

clear intent to displace state law, but it distinguished between the cause of

action and the compensation fund. Id. at 375–76; see Maglioli, 16 F.4th at 412

(discussing In re WTC and noting that it “distinguished the cause of action

from the compensation fund”). It held that the exclusive federal cause of

action was completely preemptive as the statute expressly made that cause of

action exclusive and conferred jurisdiction over all claims to the district

court. In re WTC, 414 F.3d at 375–76.

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Like the ATSSSA, the PREP Act creates an exclusive federal cause of

action. Like the ATSSSA, the cause of action is different from the

compensation fund. But the ATSSSA’s cause of action is a general one that

is not limited to willful misconduct. And, as the district court explained, “the

ATSSSA permits a (specific) federal court to adjudicate ATSSSA claims

fully on the merits under section 408 of that statute, [while] the PREP Act

permits no such thing.” Mitchell, 2021 WL 1247884, at *4. Like the ICCTA,

there are material differences between the ATSSSA and the PREP Act.

Those differences cut decisively against complete preemption of Mitchell’s

claims.

Because the compensation fund created by the Act does not satisfy

this Circuit’s test for complete preemption, and because Mitchell could not

have brought his claims under the willful-misconduct cause of action, those

claims are not completely preempted. We therefore agree with the district

court and affirm its holding.

III

Wedgewood next argues that Mitchell’s claims raise a significant

federal issue that creates federal jurisdiction under the Grable doctrine. This

argument falls flat.

In Grable, the Supreme Court recognized that “in certain cases

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

significant federal issues.” Grable & Sons Metal Prods., Inc. v. Darue Eng’g &

Mfg., 545 U.S. 308, 312 (2005). Grable applies if: “(1) resolving a federal issue

is necessary to resolution of the state-law claim; (2) the federal issue is

actually disputed; (3) the federal issue is substantial; and (4) federal

jurisdiction will not disturb the balance of federal and state judicial

responsibilities.” The Lamar Co., L.L.C. v. Miss. Transp. Comm’n, 976 F.3d

524, 529 (5th Cir. 2020) (internal quotations and citations omitted). These

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conditions are difficult to meet. Id. Like most federal question doctrines,

Grable is applied in the shadow of the well-pleaded complaint rule. Id. (citing

Gutierrez, 543 F.3d at 251). Thus, the court looks to the face of a plaintiff’s

well-pleaded complaint to determine whether the issues it raises implicate

Grable. Id. The category of cases that satisfy these requirements is “‘special

and small.’” Bd. of Comm’rs of Se. La. Flood Prot. Auth.-E. v. Tenn. Gas

Pipeline Co., 850 F.3d 714, 721 (5th Cir. 2017) (quoting Gunn v. Minton, 568

U.S. 251, 258 (2013)). The type of claim that creates a federal question under

Grable is typically a state-law claim premised on some component of federal

law. For example, a negligence claim that is premised on the existence of a

duty established by federal law creates a federal question. Id. at 722–23.

Wedgewood argues that the PREP Act’s broad grant of immunity, its

exclusive remedial scheme, and agency guidance documents create a

significant federal issue in the context of the COVID-19 pandemic. That

argument fails because the relevance of the Act’s immunity provisions is

defensive, as is its preemptive effect. To the extent agency action compelled

Wedgewood’s conduct here, Wedgewood may assert an additional

preemption defense. See Greenwich Ins. Co. v. Miss. Windstorm Underwriting

Ass’n, 808 F.3d 652, 655 (5th Cir. 2015). But when a federal issue is raised

“[a]s a defense, it does not appear on the face of a well-pleaded complaint.”

Metro. Life Ins., 481 U.S. at 63 (citation omitted). Thus, these federal issues

are neither raised nor disputed on the face of the complaint, and Grable does

not apply.

IV

Finally, Wedgewood argues that it may avail itself of the federal officer

removal statute, which allows qualifying persons to “remove cases to federal

court that ordinary federal question removal would not reach . . . , so long as

the officer asserts a federal defense in the response” to a complaint. Latiolais

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v. Huntington Ingalls, Inc., 951 F.3d 286, 290 (5th Cir. 2020) (en banc)

(discussing 28 U.S.C. § 1442(a)). The statute is construed broadly and in

favor of a federal forum. Williams v. Lockheed Martin Corp., 990 F.3d 852, 859

(5th Cir. 2021). “[T]o remove under section 1442(a), a defendant must show

(1) it has asserted a colorable federal defense, (2) it is a ‘person’ within the

meaning of the statute, (3) that has acted pursuant to a federal officer’s

directions, and (4) the charged conduct is connected or associated with an

act pursuant to a federal officer’s directions.” Latiolais, 951 F.3d at 296. The

“archetypal” case arises when a government contractor is sued. Williams,

990 F.3d at 859; see, e.g., Latiolais, 951 F.3d at 289 (contractor allegedly

installed asbestos on a U.S. Navy ship at the direction of the Navy).

Wedgewood fails to satisfy the third prong of this test because it was

not “act[ing] pursuant to a federal officer’s directions.” Latiolais, 951 F.3d

at 296. The statute requires that a private-party defendant show that they

were “acting under” a federal officer or agency. 28 U.S.C. § 1442(a)(1).

“Acting under” is a broad phrase. Watson v. Philip Morris Cos., 551 U.S. 142,

147 (2007). But it is not limitless. It requires that a private party have a

subordinate relationship to the federal officer or agency in question. Such

relationships typically involve “subjection, guidance, or control.” Id. at 151

(citations omitted). Further, the relationship “must involve an effort to

assist, or to help carry out, the duties or tasks of the federal superior.” Id. at

152 (citations omitted). “[S]imply complying with the law” is not enough. Id.

“The upshot is that a highly regulated firm cannot find a statutory

basis for removal in the fact of federal regulation alone . . . even if the

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

supervised and monitored.” Id. at 153. For example, government contractors

who “go[] beyond simple compliance” by “help[ing] officers fulfill other

basic governmental tasks” qualify under the statute. Id. at 154; see also

Maryland v. Soper (No. 1), 270 U.S. 9, 30 (1926) (chauffeur for prohibition

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agents); Davis v. South Carolina, 107 U.S. 597, 600 (1883) (U.S. Army

corporal assisting revenue agent); In re Commonwealth’s Motion to Appoint

Couns. Against or Directed to Def. Ass’n of Phila., 790 F.3d 457, 469 (3d Cir.

2015) (nonprofit community defenders).

Wedgewood raises three principal arguments for why it was “acting

under” the government and may utilize the removal statute. Each fails.

A

First, Wedgewood argues that it was designated as “critical

infrastructure” and “enlisted” in the government’s efforts to combat

COVID-19, subjecting it to “the federal government’s direction under its

close supervision.” Wedgewood does not, however, cite any record evidence

of enlistment, direction, or close supervision. As for critical infrastructure

designation, the Eighth Circuit recently rejected that argument—in

persuasive fashion—in Buljic v. Tyson Foods, Inc., 22 F.4th 730, 739–42 (8th

Cir. 2021). That case involved a food processing company which was part of

an industry that had been designated “critical infrastructure”—along with

the rest of the “food and agriculture” sector—under the same Presidential

Policy Directive that Wedgewood invokes here. Id. at 739–40 (citing and

discussing Presidential Policy Directive 21 – Critical Infrastructure Security

and Resilience, DCPD-201300092 (Feb. 12, 2013) [hereinafter PPD-21]).

But, as the Eighth Circuit noted, “[t]he 2013 list [of critical infrastructure]

included sectors as broad as “‘Commercial Facilities,’ ‘Financial Services,’

and ‘Healthcare.’” Id. at 740. It would be absurd for “mere designation of

an industry as important—or even critical—[to be] sufficient to federalize an

entity’s operations and confer federal jurisdiction.” Id. (citing Maglioli, 16

F.4th at 406).

Nor do more specific critical-infrastructure designations pursuant to

PPD–21 help matters. The Third Circuit noted that such designations

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include “doctors, weather forecasters, clergy, farmers, bus drivers,

plumbers, dry cleaners, and many other workers.” Maglioli, 16 F.4th at 406

(discussing Cybersecurity & Infrastructure Sec. Agency,

Advisory Memorandum on Ensuring Essential Critical

Infrastructure Workers’ Ability to Work During the

Covid-19 Response 7 (Dec. 16, 2020) [hereinafter CISA

Memorandum]). These “inten[tionally] . . . overly inclusive,” CISA

Memorandum at 7, designations cannot suffice to “deputize all of these

private-sector workers as federal officers.” Maglioli, 16 F.4th at 406. Indeed,

under Wedgewood’s theory, all lawyers are federal officers. See CISA

Memorandum at 19.

As the Third and Eighth Circuits concluded, designation of nearly the

entire private economy as critical infrastructure cannot create the kind of

relationship required for a private entity to utilize the federal officer removal

statute. Such a broad expansion of federal jurisdiction is supported by

“[n]either [the] language, nor [the] history, nor [the] purpose” of the statute.

Watson, 551 U.S. at 153.

B

Second, Wedgewood argues that the Centers for Disease Control and

Prevention (“CDC”) and the Centers for Medicare and Medicaid Services

(“CMS”) “engaged nursing homes in a uniquely mandated role to aid in the

government’s efforts.” For support, Wedgewood cites numerous agency-

authored documents in the record. These are unavailing. They consist of

permissive guidance, publishing of best practices, helpful suggestions, or a

combination thereof. They set forth aspirations and expectations, not

mandates. “[V]erbiage denoting guidance, not control,” is insufficient to

establish the kind of relationship necessary to invoke the statute. Maglioli, 16

F.4th at 405 (citing Watson, 551 U.S. at 153). The closest any of these

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documents come to any mandatory direction is the intermittent statement by

CMS that it will conduct surveys “to investigate compliance” with existing

regulations. But close monitoring of mere compliance is not enough. Watson,

551 U.S. at 153. 4 Instead, the Supreme Court has made it “clear” that the

type of relationship necessary for removal “must involve an effort to assist, or

to help carry out, the duties or tasks of the federal superior.” Id. at 152 (first

emphasis added). That kind of relationship is absent here.

C

Finally, Wedgewood urges this court to adopt a “regulation plus”

theory. That theory provides that comprehensive and detailed regulations

alone may allow a private entity to remove under the statute. Bakalis v.

Crossland Sav. Bank, 781 F. Supp. 140, 145 (E.D.N.Y. 1991). Bakalis

constitutes the sum total of authority that Wedgewood cites in support of this

theory and, as Wedgewood admits, Bakalis was decided before Watson.

Watson expressly rejected any notion that “the fact of federal regulation

alone” could suffice under the statute “even if the regulation is highly

4

In its reply brief, Wedgewood cites a statement by CMS that calls its efforts

“unprecedented targeted direction.” Ctrs. for Medicare & Medicaid Servs.,

COVID-19 Long-Term Care Facility Guidance (Apr. 2, 2020). But by its own

terms, that document is discussing “new recommendations” about what nursing homes and

long-term care facilities “should” do, including “immediately ensur[ing] that they are

complying with all CMS and CDC guidance.” Id. (emphasis added).

Close examination of the documents that constitute this “unprecedented targeted

direction” bolsters the conclusion that this statement is mere press-release puffery. These

“strict infection control and other screening recommendations” are just that. Id. (emphasis

added). Although the press release announcing visitor restrictions refers to the agency

“direct[ing] nursing homes,” the actual document does not direct anything. Like all the

others, it merely recommends that “[f]acilities should restrict visitation of all visitors and

non-essential health care personnel.” Ctrs. for Medicare & Medicaid Servs.,

Guidance for Infection Control and Prevention of Coronavirus

Disease 2019 (COVID-19) in Nursing Homes 2 (Mar. 13, 2020) (emphasis

added).

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

monitored.” 551 U.S. at 153. Wedgewood cites no authority applying a

“regulation plus” framework after Watson, and we decline to revive that

theory.

V

At bottom, Wedgewood attempts to both transform a preemption

defense into a grant of jurisdiction and recast private healthcare companies

as deputies of the federal government. We reject these overtures. In doing so,

we agree with the only other federal circuit courts to address these same

arguments. Mitchell’s state-law negligence claims will be adjudicated in state

court. AFFIRMED and REMANDED with directions to further

REMAND this case to the appropriate state court.

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