In May 2020, Ricardo Saldana died of COVID-19 at a California nursing home owned and operated by Glenhaven Healthcare. His surviving family members then filed a lawsuit against Glenhaven in California state court, arguing that his death was the result of Glenhaven’s failure to take basic safety precautions in response to the threat of the coronavirus. They alleged that Glenhaven not only failed to provide its employees with appropriate personal protective equipment, but also prohibited employees from wearing any facial coverings. They also alleged that the facility failed to isolate staff and residents whom it knew to be exposed to the coronavirus. It even moved another resident who had COVID into a shared room with Ricardo. Within weeks, Ricardo became sick and died.
Citing 28 U.S.C. § 1442(a), the federal-officer removal statute, Glenhaven removed the case from state court to federal court. Glenhaven 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 plaintiffs’ claims and thus provided a basis for federal-court jurisdiction. In October 2020, the district court rejected Glenhaven’s arguments and remanded the case to state court. Glenhaven appealed the remand order to the Ninth Circuit.
Public Citizen represented the Saldanas on appeal. The appellate brief explained that Supreme Court case law makes clear that regulation and non-binding guidance do not create a relationship that satisfies the “acting under” requirement of § 1442(a). In addition, the PREP Act has no application to the claims in this case, which do not arise from Glenhaven’s “use or administration” of any “covered countermeasures,” as those terms are used in the PREP Act. Rather, the Saldanas’ claim arise from Glenhaven’s policies of non-use and negligent failure to provide a safe environment for its residents. Moreover, the brief explained, 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.
In February 2022, the Ninth Circuit ruled in favor of the Saldanas. Affirming the district court’s decision, the court held that the PREP Act does not completely preempt state-law claims, that Glenhaven was not acting under the direction of a federal officer, and that the Grable doctrine did not apply.
Glenhaven filed a petition for rehearing and rehearing en banc, which was denied.