Sara Schleider, a resident of Grand Villa of Delray East, a senior citizen assisted living facility in Florida, died of COVID in June 2020. Her family members then filed a lawsuit in Florida state court alleging that Grand Villa’s failure to provide personal protective equipment or take other protection measures to prevent the spread of COVID-19 resulted in their mother’s death. They alleged only state-law claims.
Grand Villa removed the case from state court to federal court. Citing 28 U.S.C. § 1442(a), the federal-officer removal statute, Grand Villa claimed that it was “acting under” the direction of a federal officer when operating its nursing homes because it was part of the “critical healthcare infrastructure.” 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. The district court rejected Grand Villa’s arguments and remanded the case to state court.
After Grand Villa appealed the remand order to the Eleventh Circuit, Public Citizen filed an amicus brief in support of the plaintiffs. The brief explains that Grand Villa’s participation in the “critical infrastructure” does not create a relationship that satisfies the “acting under” requirement of section 1442(a)(1) and that the court owes no deference to the views of the Department of Health and Human Services about complete preemption and the scope of the PREP Act’s immunity provision.