Ana Martinez was one of 39 residents of Our Lady of Consolation Geriatric Care Center (OLOC), a nursing home in West Islip, New York, who died of COVID-19 in the Spring of 2020. Her daughter, Vivian Rivera-Zayas, filed a lawsuit against OLOC in June 2020, in New York state court, arguing that her mother’s death was the result of OLOC’s inadequate infection control policies and procedures—inadequacies that it had been cited for even before the COVID-19 pandemic.
OLOC removed the case from state court to federal court in reliance on 28 U.S.C. § 1442(a), the federal-officer removal statute. OLOC claimed that it was “acting under” the direction of a federal officer when operating its nursing homes because it was subject to heavy regulation as part of its participation in the Medicare and Medicaid programs and because the federal government had issued guidance on infection control in nursing homes. It also 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 Ms. Rivera-Zayas’s claims and thus provided a basis for federal-court jurisdiction. In August 2021, the district court rejected OLOC’s arguments and remanded the case to state court. OLOC appealed the remand order to the Second Circuit.
Public Citizen represents Ms. Rivera-Zayas on appeal. The appellate brief explains that regulation and non-binding guidance do not create a relationship that satisfies the “acting under” requirement of § 1442(a). the brief also explains that the PREP Act has no application to the claims in this case, which do not arise from OLOC’s “use or administration” of any “covered countermeasures,” as those terms are used in the PREP Act, but from OLOC’s policies of non-use and negligent failure to provide a safe environment for its residents. Moreover, the brief explains, Congress did not confer federal-court jurisdiction over every case that involves the question whether the immunity defense provided by the PREP Act applies to a state-law claim.