Sherod v. Comprehensive Healthcare Management Services

Elizabeth Wiles worked at Brighton Rehabilitation and Wellness Center, a nursing home in Pennsylvania, owned and operated by Comprehensive Healthcare Management Services. Brighton had a history of inadequate staffing, sanitation, and infection-control practices, which were exacerbated by the onset of COVID-19. Brighton ended up having one of the largest outbreaks of COVID-19 of any nursing home in the United States, with more than 70 Brighton residents dying of COVID-19 in the first few months of the pandemic. After Ms. Wiles contracted COVID-19 while working at the facility and died, her daughter, Vanessa Sherod, sued Brighton in Pennsylvania state court, arguing that her mother’s death was the result of Brighton’s negligence and recklessness.

Citing 28 U.S.C. § 1442(a), the federal-officer removal statute, Brighton removed the case from state court to federal court. Brighton 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 Brighton’s arguments and remanded the case to state court.

Brighton appealed the remand order to the Third Circuit. In an amicus brief in support of Ms. Sherod, Public Citizen explained that the Third Circuit’s decision in Maglioli v. Alliance HC Holdings disposed of the majority of Brighton’s arguments and that Brighton’s attempts to distinguish the two cases lacked merit. We also explained that Brighton’s theory that all “program planners” as that term is used in the PREP Act are federal officers is inconsistent with case law and principles of federalism, and that Ms. Sherod’s allegations did not serve as a basis for complete preemption by the PREP Act because she did not allege that her mother’s death related to the administration or use of a covered countermeasure, but rather Brighton’s longstanding policies of general neglect.