Perez v. Southeast SNF, L.L.C.

In the spring of 2020, eighteen residents of Southeast Nursing and Rehabilitation Center, a San Antonio skilled nursing facility and nursing home, including Ricardo Lozano, Robert Strait, and Elodia Salinas, died of COVID-19. The families of Mr. Lozano, Mr. Strait, and Mr. Salinas then filed lawsuits against Southeast in Texas state court, arguing that the deaths of their loved ones were the result of Southeast’s persistent understaffing and failure to take basic safety precautions in response to the threat of the coronavirus. They alleged that Southeast had a history of inadequate infection control procedures, failed to implement new procedures in response to COVID-19, failed to isolate residents whom it knew to be exposed to the coronavirus, and failed to provide adequate medical care after their loved ones were diagnosed with COVID-19.

Southeast removed the cases from state court to federal court, arguing that the federal court had jurisdiction because the cases raised federal questions. It argued that the Public Readiness and Emergency Preparedness (PREP) Act, a statute enacted in 2005 to encourage the production and distribution of vaccines, “completely preempted” the families’ claims and thus provided a basis for federal-court jurisdiction. It also argued that federal questions were “embedded” in the families’ Texas negligence claims. Southeast also invoked 28 U.S.C. § 1442(a), the federal-officer removal statute, claiming that it was “acting under” the direction of a federal officer when operating its nursing home because the federal government had issued guidance on infection control in nursing homes. In April 2021, the district court rejected Southeast’s arguments and remanded all three cases to state court. Southeast appealed the remand orders to the Fifth Circuit.

Public Citizen represents the families on appeal. As explained in the appellate brief, the PREP Act has no application to the Families’ claims, which do not arise from Southeast’s “use by or administration to an individual” of any “covered countermeasures,” as those terms are used in the PREP Act. Rather, the families’ claims arise from Southeast’s policies of non-use and negligent failure to provide a safe environment for its residents, and inadequate medical care. Moreover, the brief explains that Congress did not confer federal-court jurisdiction for every case that involves the question whether the immunity defense provided by the PREP Act applies to a state-law claim. Finally, the brief points to Supreme Court case law that makes clear that regulation and non-binding guidance do not create a relationship that satisfies the requirements for establishing federal-officer removal.

The Fifth Circuit ruled in the plaintiffs’ favor and affirmed the district court’s remand order in March 2022.