Opinion
Case No. 3:20-cv-01088-SB
02-16-2021
THE ESTATE OF JUDITH JOY JONES through its PERSONAL REPRESENTATIVE ANGELA BROWN, THE ESTATE OF CHRISTINA BROADBENT through its PERSONAL REPRESENTATIVE MATTHEW BROADBENT, THE ESTATE OF GLORIA CLARK through its PERSONAL REPRESENTATIVE LEIGH ANN BYRNE, THE ESTATE OF LORRAINE CONLEY through its PERSONAL REPRESENTATIVE CLIFF CONLEY, THE ESTATE OF KEVIN FORTUNE through its PERSONAL REPRESENTATIVE GREG FORTUNE, and THE ESTATE OF ALAN KUZENS through its PERSONAL REPRESENTATIVE ZACH KUZENS, Plaintiffs, v. ST. JUDE OPERATING COMPANY, LLC, dba HEALTHCARE AT FOSTER CREEK, and BENICIA SENIOR LIVING, LLC, Defendants.
AMENDED FINDINGS AND RECOMMENDATION
BECKERMAN, U.S. Magistrate Judge.
This matter comes before the Court again on Plaintiffs' motion to remand to state court. Plaintiffs' motion presents the question of whether the Public Readiness and Emergency Preparedness Act (the "PREP Act") completely preempts any of Plaintiffs' state law claims and confers original jurisdiction upon this Court.
Plaintiffs are the personal representatives of the estates of Judith Joy Jones ("Jones"), Christina Broadbent ("Broadbent"), Gloria Clark ("Clark"), Lorraine Conley ("Conley"), Kevin Fortune ("Fortune"), and Alan Kuzens ("Kuzens"). (First Am. Compl. ("FAC") at 1.) For ease of reference, the Court will also refer to Jones, Broadbent, Clark, Conley, Fortune, and Kuzens as "Plaintiffs."
The Court issued its original Findings and Recommendation ("F&R") on October 14, 2020, recommending that the district judge grant Plaintiffs' motion to remand. (ECF No. 15.) Defendants St. Jude Operating Company, LLC ("St. Jude") and Benicia Senior Living, LLC ("Benicia") (together with St. Jude, "Defendants") objected to the F&R, and filed notices of supplemental authority, causing the district judge to recommit this matter to the undersigned "for further consideration in light of the parties' new arguments and supplemental briefing." (Order at 3, ECF No. 31.) Accordingly, the Court withdraws and replaces its original F&R (ECF No. 15), in light of subsequent authority.
For the reasons explained below, the Court finds that the PREP Act does not completely preempt any of Plaintiffs' claims, and therefore recommends that the district judge grant Plaintiffs' motion to remand.
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BACKGROUND
In assessing whether removal was proper, the Court's "analysis concerns 'the pleadings filed at the time of removal without reference to [any] subsequent amendments.'" Provincial Gov't of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1085 n.1 (9th Cir. 2009) (citation omitted). Thus, this factual background is taken from the first amended complaint Plaintiffs filed in state court.
I. THE PARTIES
Defendant St. Jude owns a nursing home facility in Portland, Oregon, named Healthcare at Foster Creek ("Foster Creek"). (FAC ¶¶ 1, 15.) Defendant Benicia manages Foster Creek's operations. (FAC ¶¶ 1, 16-17.) Plaintiffs lived at Foster Creek "when they contracted the COVID-19 virus that ultimately caused their deaths." (FAC ¶ 8.)
II. THE STATE INVESTIGATION
The State of Oregon (the "State") linked Foster Creek to numerous COVID-19 cases and deaths. (See FAC ¶¶ 1, 29, 36-41, 47, 53, 56.) The State launched an initial investigation into Foster Creek's infection control practices in April 2020. (FAC ¶ 29.) The State's April 15, 2020 report revealed that Foster Creek "'failed to implement adequate infection control practices to prevent the spread of COVID-19[.]'" (FAC ¶ 29.) The State identified many deficient practices at Foster Creek, including failing to train staff regarding COVID-19 infection control, failing to follow Centers for Disease Control and Prevention's guidance, failing correctly to wear or use personal protective equipment ("PPE"), wash hands, and change PPE between residents, failing to provide staff with adequate PPE, working across multiple resident units and rooms, failing to socially distance, failing to maintain adequate or accurate medical records, and failing to provide adequate staffing levels. (FAC ¶ 29.) Based on these findings, the State cited Foster Creek for violating several Oregon Administrative Rules, determined that Foster Creek "'failed to ensure appropriate measures [were] in place to prevent the spread of COVID-19,'" and "mandate[d] an immediate infection control training to facility staff in an effort to correct Foster Creek's many deficiencies." (FAC ¶¶ 30-32.)
After the State issued its report, the Oregon Department of Human Services ("DHS") provided PPE and technical assistance to Foster Creek, and DHS and the Oregon Health Authority continued to investigate and monitor Foster Creek's infection control practices. (FAC ¶ 42.) DHS discovered that Foster Creek continued to engage in inadequate infection control practices, "including staff cohorting residents, staff working across units, improper training, and not meeting required staffing levels." (FAC ¶ 42.) Meanwhile, "COVID-19 continued to spread at Foster Creek," and the resident "death toll [continued to] mount[]." (FAC ¶ 47.)
As a result, on May 4, 2020, DHS issued an Order of Emergency Suspension and shut down Foster Creek's nursing facility, citing several failures. (FAC ¶¶ 48, 57.)
III. PLAINTIFFS' DEATHS
Each of the decedent plaintiffs was a residents of Foster Creek when they contracted the COVID-19 virus that ultimately caused their deaths. (FAC ¶ 8.) At the time of their deaths, Judith Joy Jones was a 75-year-old female; Christina Broadbent was a 70-year-old female; Gloria Clark was a 92-year-old female; Lorraine Conley was a 92-year-old female; Kevin Fortune was a 59-year-old male; and Alan Kuzens was a 74-year-old male. (FAC ¶¶ 9-14.)
IV. PROCEDURAL HISTORY
Plaintiffs filed this action against Defendants in Multnomah County Circuit Court, alleging wrongful death claims based on negligence, negligence per se, and elder abuse. (Notice of Removal ¶ 5; FAC at 31, 33, 35.) Defendants timely removed Plaintiffs' case to federal court. (Notice of Removal ¶ 6.) In their notice of removal, Defendants asserted that this Court has "original jurisdiction over this action under 28 U.S.C. § 1331 because Plaintiffs' claims are completely preempted by the [PREP Act], and thus arise under federal law." (Notice of Removal ¶ 7.) Plaintiffs' motion to remand followed.
DISCUSSION
I. COMPLETE PREEMPTION
A. Legal Standards
A defendant may "remove an action filed in state court to federal court if the federal court would have original subject matter jurisdiction over the action." Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1243 (9th Cir. 2009). A federal court has "original jurisdiction over 'all civil actions arising under the Constitution, laws, or treaties of the United States.'" Id. (quoting 28 U.S.C. § 1331). To determine "whether an action arises under federal law, a [district] court applies the 'well-pleaded complaint rule.'" Id. (quoting Toumajian v. Frailey, 135 F.3d 648, 653 (9th Cir. 1998), abrogated on other grounds by Aetna Health Inc. v. Davila, 542 U.S. 200, 210 (2004)).
The well-pleaded complaint rule "'provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint.'" Retail Prop. Tr. v. United Bhd. of Carpenters & Joiners of Am., 768 F.3d 938, 947 (9th Cir. 2014) (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987)). Under this rule, "'a case may not be removed to federal court on the basis of a federal defense, including the defense of pre-emption, even if the defense is anticipated in the plaintiff's complaint, and even if both parties concede that the federal defense is the only question truly at issue.'" Id. (quoting Caterpillar, 482 U.S. at 393). Thus, a "plaintiff can generally 'avoid federal jurisdiction by exclusive reliance on state law.'" City of Oakland v. BP PLC, 969 F.3d 895, 904 (9th Cir. 2020) (quoting Caterpillar, 482 U.S. at 392).
The Supreme Court, however, "has recognized . . . an 'independent corollary to the well-pleaded complaint rule known as the complete pre-emption doctrine.'" Retail Prop. Tr., 768 F.3d at 947 (quoting Caterpillar, 482 U.S. at 393). The complete preemption "doctrine posits that there are some federal statutes that have such ' extraordinary pre-emptive power' that they ' convert[ ] an ordinary state common law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.'" Retail Prop. Tr., 768 F.3d at 947 (quoting Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 65 (1987)). "Complete preemption refers to the situation in which federal law not only preempts a state-law cause of action, but also substitutes an exclusive federal cause of action in its place." Hansen v. Grp. Health Coop., 902 F.3d 1051, 1057 (9th Cir. 2018) (citations omitted). The Ninth Circuit has clearly instructed that "complete preemption is 'rare'" and has recognized that "[o]ther circuits unanimously agree." Id. (citing Retail Prop. Tr., 768 F.3d at 947, ARCO Envtl. Remediation, L.L.C. v. Dep't of Health & Envtl. Quality of Mont., 213 F.3d 1108, 1114 (9th Cir. 2000), Griffioen v. Cedar Rapids & Iowa City Ry. Co., 785 F.3d 1182, 1189 (8th Cir. 2015), Berera v. Mesa Med. Grp., PLLC, 779 F.3d 352, 360 n.9 (6th Cir. 2015), Dutcher v. Matheson, 733 F.3d 980, 985 (10th Cir. 2013), and Cmty. State Bank v. Strong, 651 F.3d 1241, 1261 n.16 (11th Cir. 2011)).
As the parties invoking federal jurisdiction, Defendants bear the burden of demonstrating that the PREP Act applies here and completely preempts at least one of Plaintiffs' state law claims. See Reiten v. CIGNA Health & Life Ins. Co., No. 20-cv-02330, 2020 WL 1862462, at *3 (C.D. Cal. Apr. 14, 2020) ("As the party seeking to invoke federal jurisdiction, [the defendant] bears the burden of proving that [the] plaintiff's claim is completely preempted."); see also Smallwood v. Allied Van Lines, Inc., 660 F.3d 1115, 1120 (9th Cir. 2011) ("[T]he district court had subject matter jurisdiction if at least one of [the plaintiff's] claims was completely preempted by the [federal statute].").
B. Analysis
In its original F&R, the Court concluded that Defendants failed to meet their burden of demonstrating that the PREP Act applies to Plaintiffs' claims, and did not reach the complete preemption analysis. (ECF No. 15 at 17-18.) Following entry of the F&R, Chief Judge Marco Hernández remanded a related action on the ground that the PREP Act does not completely preempt negligence or other state claims arising from COVID-19 deaths at nursing homes. See Parker v. St. Jude Operating Co., LLC et al., No. 3:20-cv-01325-HZ, 2020 WL 8362407 (D. Or. Dec. 28, 2020). Based on this opinion in a related case and the weight of existing federal case law holding that the PREP Act does not completely preempt negligence claims relating to COVID-19 deaths in nursing homes, the Court finds that the PREP Act does not completely preempt Plaintiffs' claims and therefore this court does not have original subject matter jurisdiction. Accordingly, the Court recommends that the district judge grant Plaintiffs' motion to remand.
Defendants appropriately identified this case as a related case when they removed Parker to this court, and it is not clear why the case was not consolidated or reassigned. (See Civil Cover Sheet, ECF No. 1, Ex. 1.)
1. The PREP Act
If the Secretary (the "Secretary") of the Department of Health and Human Services ("HHS") "determin[es] that a disease or other health condition or other threat to health constitutes a public health emergency," the PREP Act gives the Secretary the authority to "make a declaration, through publication in the Federal Register, recommending, under conditions as the Secretary may specify, the manufacture, testing, development, distribution, administration, or use of one or more covered countermeasures, and stating that [the PREP Act's immunity provision] is in effect with respect to the activities so recommended." 42 U.S.C. § 247d-6d(b)(1). The Secretary issued such a declaration with respect to the ongoing COVID-19 pandemic. See Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 85 Fed. Reg. 15198, 15198 (Mar. 17, 2020) (the "Declaration").
To date, the Secretary has issued six amendments to the Declaration. See First Amended Decl., 85 Fed. Reg. 21012 (Apr. 15, 2020); Second Amended Decl., 85 Fed. Reg. 35100 (June 8, 2020); Third Amended Decl., 85 Fed. Reg. 52136 (Aug. 24, 2020); Fourth Amended Decl., 85 Fed. Reg. 79190 (Dec. 9, 2020); Fifth Amended Decl., 86 Fed. Reg. 7872 (Feb. 2, 2021); and Sixth Amended Decl., 86 Fed. Reg. 9516 (Feb. 16, 2021).
The PREP Act defines a "covered countermeasure" as (1) a "qualified pandemic or epidemic product," (2) a "security countermeasure," (3) a drug, biological product, or device that is authorized for emergency use, or (4) a "respiratory protective device that is approved by the National Institute for Occupational Safety and Health . . . , and that the Secretary determines to be a priority for use during a public health emergency[.]" 42 U.S.C. § 247d-6d(i)(1). The Declaration explains that a covered countermeasure includes "any antiviral, any other drug, any biologic, any diagnostic, any other device, or any vaccine, used to treat, diagnose, cure, prevent, or mitigate COVID-19," or "any device used in the administration of any such product, and all components and constituent materials of any such product." Declaration at 15202.
The PREP Act's immunity provision provides that "a covered person shall be immune from suit and liability under Federal and State law with respect to all claims for loss caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure[.]" 42 U.S.C. § 247d-6d(a)(1). The scope of the PREP Act's immunity provision is broad:
The immunity under paragraph (1) applies to any claim for loss that has a causal relationship with the administration to or use by an individual of a covered countermeasure, including a causal relationship with the design, development, clinical testing or investigation, manufacture, labeling, distribution, formulation, packaging, marketing, promotion, sale, purchase, donation, dispensing, prescribing, administration, licensing, or use of such countermeasure.42 U.S.C. § 247d-6d(a)(2)(B). If the PREP Act applies, the only remedies available to an injured person are (i) compensation for covered injuries from an administrative "Covered Countermeasures Process Fund" administered by the Secretary, or (ii) an action filed in the U.S. District Court for the District of Columbia if there is "death or serious physical injury proximately caused by willful misconduct." 42 U.S.C. §§ 247d-6d(d)(1), 247d-6e.
2. Complete Preemption
Plaintiffs argue in their motion to remand that Defendants cannot satisfy the Ninth Circuit's complete preemption test here. (Pls.' Mot. to Remand at 14 (citing City of Oakland, 969 F.3d at 905.) The Court did not previously reach that question based on its threshold finding that the PREP Act does not apply to Plaintiffs' claims. However, in light of a subsequent opinion in a related case in this district, as well as the weight of recent federal authority on the issue, the Court finds that the PREP Act does not completely preempt Plaintiffs' state law claims and therefore this case must be remanded.
a. Authority in this District: No Complete Preemption
Following entry of this Court's F&R, Chief Judge Hernández remanded Parker, a related case against the same defendants involving another COVID-19 death at Foster Creek, based on his finding that complete preemption does not apply in this context.
In Parker, Chief Judge Hernández recognized that "[t]he doctrine of complete preemption is meant to be very limited" and found the PREP Act "is not the 'rare' statute where complete preemption applies." Parker, 2020 WL 8362407, at *5 (citing Hansen, 902 F.3d at 1057). He found that the PREP Act "is not one of the three statutes that the Supreme Court has identified as meeting the necessary criteria for complete preemption[.]" Parker, 2020 WL 8362407, at *5; see also City of Oakland, 969 F.3d at 905 (noting that complete preemption applies only to § 301 of the Labor Management Relations Act, § 502(a) of the Employee Retirement Income Security Act of 1974, and §§ 85 and 86 of the National Bank Act).
Specifically, Chief Judge Hernández held that the PREP Act "does not meet the Ninth Circuit's two-pronged complete preemption test." Parker, 2020 WL 8362407, at *5 (citing City of Oakland, 969 F.3d at 905-06). "First, the PREP Act does not fully supplant state law negligence claims related to COVID-19" because "[a]s courts around the country continue to find, the PREP Act does not prevent plaintiffs from bringing state law negligence claims based on an alleged failure to use covered countermeasures" nor claims "without a causal connection to those covered countermeasures." Parker, 2020 WL 8362407, at *5 (citing Est. of Maglioli v. Andover Subacute Rehab. Ctr. I, 478 F. Supp. 3d 518, 529 (D.N.J. 2020), appeal filed No. 20-2834 (3d Cir. Sept. 10, 2020); Jackson v. Big Blue Healthcare, Inc., No. 2:20-CV-2259-HLT-JPO, 2020 WL 4815099, at *1, *8 (D. Kan. Aug. 19, 2020); Sherod v. Comprehensive Healthcare Mgmt. Servs., LLC, No. 20CV1198, 2020 WL 6140474, at *7 (W.D. Pa. Oct. 16, 2020), appeal filed No. 20-3287 (3d Cir. Nov. 10, 2020); Martin v. Serrano Post Acute LLC, No. CV 20-5937 DSF (SKX), 2020 WL 5422949, at *2 (C.D. Cal. Sept. 10, 2020), appeal filed No. 20-56078 (9th Cir. Oct. 19, 2020); Gunter v. CCRC OPCO-Freedom Square, LLC, No. 8:20-cv-1546-T-36TGW, 2020 WL 8461513, at *15 (M.D. Fl. Oct. 29, 2020)). "These cases suggest the PREP Act does not 'wholly[ ] displace' state law negligence claims that implicate healthcare entities and COVID-19." Parker, 2020 WL 8362407, at *5 (citing Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 8 (2003)).
On the same day that the district court issued the Jackson decision, it issued nearly identical decisions in Brown v. Big Blue Healthcare, Inc., 480 F. Supp. 3d 1196 (D. Kan. 2020); Block v. Big Blue Healthcare, Inc., No. 2:20-CV-2262-HLT, 2020 WL 4815076 (D. Kan. Aug. 19, 2020); Long v. Big Blue Healthcare, Inc., No. 2:20-cv-2263-HLT, 2020 WL 4815079 (D. Kan. Aug. 19, 2020); Harris v. Big Blue Healthcare, Inc., No. No. 2:20-cv-2266-HLT, 2020 WL 4815098 (D. Kan. Aug. 19, 2020); Baskin v. Big Blue Healthcare, Inc., No. 2:20-cv-2267-HLT, 2020 WL 4815074, at *1 (D. Kan. Aug. 19, 2020); Eaton v. Big Blue Healthcare, Inc., 480 F. Supp. 3d 1184 (D. Kan. 2020); Lutz v. Big Blue Healthcare, Inc., 480 F. Supp. 3d 1207 (D. Kan. 2020); Fortune v. Big Blue Healthcare, Inc., No. 2:20-cv-2318-HLT, 2020 WL 4815097 (D. Kan. Aug. 19, 2020); and Rodina v. Big Blue Healthcare, Inc., No. 2:20-cv-2319-HLT, 2020 WL 4815102 (D. Kan. Aug. 19, 2020).
Second, "the PREP Act does not provide a substitute cause of action for Plaintiff's claims." Parker, 2020 WL 8362407, at *6. "Instead, when applicable, the PREP Act provides immunity to defendants on state law negligence claims." Id. "State law may be completely preempted when 'it has been replaced by federal law—but this happens because federal law takes over all similar claims, not because there is a preemption defense.'" Id. (quoting Lehmann v. Brown, 230 F.3d 916, 919-20 (7th Cir. 2000)); see also Martin, 2020 WL 5422949, at *2 ("[I]mmunity against state law or preemption of state law is not the equivalent of complete preemption and does not provide removal jurisdiction.").
Chief Judge Hernández concluded that "[h]ere, in addition to providing immunity, the PREP Act only supplies a limited cause of action for willful misconduct" and "[t]his narrow path is not a substitute for Plaintiff's state law negligence claims and does not warrant a finding that the limited exception of complete preemption applies to the PREP Act." Parker, 2020 WL 8362407, at *6. Therefore, Chief Judge Hernández remanded Parker to Multnomah County Circuit Court. Id.
b. Other Federal Courts: No Complete Preemption
Almost every other federal court that has addressed the issue of complete preemption following removal of state claims relating to COVID-19 deaths in nursing homes has held that the PREP Act does not trigger complete preemption. See, e.g., Lyons v. Cucumber Holdings, LLC, No. CV 20-10571-JFW(JPRx), 2021 WL 364640, at *5 (C.D. Cal. Feb. 3, 2021) (remanding negligence and wrongful death claims arising from the COVID-19 death of a skilled nursing facility resident because "the Court concludes that the PREP Act does not satisfy the Ninth Circuit's two pronged complete preemption test") (citing City of Oakland, 969 F.3d at 905); Dupervil v. All. Health Operations, LLC, ---- F. Supp. 3d ----, No. 20-CV-4042 (PKC) (PK), 2021 WL 355137, at *11 (E.D.N.Y. Feb. 2, 2021) (remanding negligence and other claims arising from the COVID-19 death of a nursing home resident and finding that "[i]n sum, Defendants cite no authority that compels the conclusion that the PREP Act completely preempts state-law claims within its scope such that those claims are really federal-law claims that are removable to federal court"); Anson v. HCP Prairie Vill. KS OPCO LLC, et al., No. 20-2346-DDC-JPO, 2021 WL 308156, at *13 (D. Kan. Jan. 29, 2021) (remanding negligence and wrongful death claims arising from COVID-19 death of an assisted living facility resident, and holding that "[t]he doctrine of 'complete preemption' does not apply"; "Plaintiff's claims thus do not arise under federal law"; and "since no other basis for subject matter jurisdiction presents itself, the court must remand the case to state court"); Smith v. Bristol at Tampa Rehab. and Nursing Ctr., LLC, No. 8:20-cv-2798-T-60SPF, 2021 WL 100376, at *2 (M.D. Fla. Jan. 12, 2021) (remanding negligence claims arising from COVID-19 death of a nursing home resident and noting that "[t]he Court's ruling is in line with decisions of other federal courts" and "[h]aving reviewed the relevant case law, the Court notes that although these and similar arguments concerning the COVID-19 pandemic and the PREP Act have been brought before the federal courts, the Court has been unable to find even one case permitting removal") (citations omitted); Est. of Maglioli, 478 F. Supp. 3d at 529 (remanding negligence, wrongful death, and medical malpractice claims arising from COVID-19 deaths of nursing home residents and noting that "[n]othing in the language of the [PREP] Act suggests that it was intended to more broadly displace state-law causes of action for, e.g., malpractice or substandard care—even if proper care possibly would have entailed administration of [covered] countermeasures"); Martin, 2020 WL 5422949, at *2 (remanding negligence claims arising from COVID-19 death of a nursing home resident and "declin[ing] to find that Congress has completely occupied the field of actions or inactions related to COVID-19 spread and treatment to such a degree that all state law claims related to that topic are subject to removal").
See also Goldblatt v. HCP Prairie Vill. KS OPCO LLC, et al., No. 20-2489-DDCKGG, 2021 WL 308158 (D. Kan. Jan. 29, 2021) (same); Grohmann v. HCP Prairie Vill. KS OPCO LLC, et al., No. 20-2304-DDC-JPO, 2021 WL 308550 (D. Kan. Jan. 29, 2021) (same).
The Court finds that these cases are consistent and persuasive, and agrees that the doctrine of complete preemption does not apply here.
c. Defendants' Authorities
1) HHS Advisory Opinions
In the Fourth Amendment to the Secretary's Declaration, the Secretary incorporated the Office of General Counsel's Advisory Opinions interpreting the PREP Act, including, as relevant here, a January 8, 2021, advisory opinion asserting that the PREP Act is a complete preemption statute. (See Defs.' Mot. for Leave of Court to File Supp. Auth., Ex. 1.) Defendants argue that the Court must apply Chevron deference to the January 8, 2021 and related Office of General Counsel advisory opinions. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). The Court disagrees.
The most comprehensive discussion of Chevron deference to the Office of the General Counsel's advisory opinions is found in U.S. District Judge Pamela Chen's recent opinion in Dupervil. In Dupervil, Judge Chen correctly noted that the January 8, 2021, HHS advisory opinion (on which Defendants rely here) expressly states that it "does not have the force or effect of law." Dupervil, 2021 WL 355137, at *10. "Thus, even assuming that Congress intended to delegate authority to the Secretary and HHS's Office of the General Counsel 'generally to make rules carrying the force of law,' the Office of the General Counsel interpretation relied upon by Defendants here explicitly was not 'promulgated in the exercise of that authority' and is not entitled to Chevron deference." Id. (citing United States v. Mead Corp., 533 U.S. 218, 226-27 (2001)); see also Gunter, 2020 WL 8461513, at *4 ("Defendants filed as supplemental authority a DHS General Counsel Advisory Opinion 20-04 regarding the PREP Act. . . . This opinion does not salvage their cause. As a preliminary matter, the Advisory Opinion does not bind the federal courts, nor does it have the "force or effect of law.").
The January 8, 2021 Office of the General Counsel advisory opinion also acknowledges that it only "sets forth the current views of the Office of the General Counsel." (Defs.' Mot. for Leave of Court to File Supp. Auth., Ex. 1 at 5.) Both the Secretary and the General Counsel have since left HHS. See https://www.hhs.gov/about/agencies/ogc/key-personnel/immediate-office-of-the-general-counsel/index.html (last visited Feb. 16, 2021).
Notably, Judge Chen's opinion post-dated Amendment Four, which purported to incorporate all of the Office of the General Counsel advisory opinions. See Dupervil, 2021 WL 355137, at *2.
Even if the advisory opinions did not include the clear disclaimer language, the authority Congress delegated to HHS to make rules carrying the force of law did not include authority to interpret the jurisdiction of the federal courts. See, e.g., Our Children's Earth Found. v. U.S. Envtl. Prot. Agency, 527 F.3d 842, 846 n.3 (9th Cir. 2008) ("The Agency's position on jurisdiction is not entitled to deference under Chevron[.]") (citation omitted); B&H Med., LLC v. United States, 116 Fed. Cl. 671, 682 (2014) ("Although HHS possesses the expertise to administer the Medicare program generally, it is without the expertise to determine a federal court's subject matter jurisdiction. Rather, it is the federal courts that 'are [the] experts when it comes to determining the scope of federal-court subject-matter jurisdiction.'") (citation omitted).
Finally, Judge Chen also correctly found that the advisory opinion's "interpretation lacks the 'power to persuade[,]'" in part because it cited no relevant legal authority in support of "its proposition that an exclusive federal administrative remedy is sufficient for complete preemption," and therefore no deference is due. Dupervil, 2021 WL 355137, at *10 (citing Mead Corp., 533 U.S. at 235). This Court agrees.
Judge Chen also appropriately held in Dupervil that the plaintiffs' state tort claims did not "necessarily" raise a federal issue because the PREP Act was not an essential element of any of the plaintiffs' claims, and therefore federal jurisdiction under Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 312 (2005) does not apply in this context. See Dupervil, 2021 WL 355137, at *14-15 (rejecting the advisory opinion's Grable argument and stating that "[t]he Court declines to accept this effective rewriting of diversity jurisdiction . . . and principles of subject-matter jurisdiction more generally") (citations omitted).
2) One Federal Court Opinion
Defendants also rely on the one federal court opinion which has held that the PREP Act completely preempts state negligence claims relating to COVID-19 deaths in nursing homes.
In Garcia v. Welltower OpCo Grp. LLC, No. SACV 20-02250JVS(KESx), 2021 WL 492581, at *6 (C.D. Cal. Feb. 10, 2021), the district court applied Chevron deference to the January 8, 2021 Office of the General Counsel advisory opinion, and "agree[d] with this administrative agency interpretation of the PREP Act." The court did not cite any authority supporting complete preemption other than the advisory opinion, and as discussed above, the advisory opinion is not persuasive in part because it cites no legal authority to support complete preemption here. Therefore, the Court finds that Garcia is not persuasive authority, and is an outlier in light of the weight of authority holding that complete preemption does not apply here. See Dupervil, 2021 WL 355137, at *10 n.2 ("For the reasons discussed herein, this Court respectfully disagrees [with the Garcia opinion] and concludes that the Advisory Opinion is unpersuasive and not entitled to any deference.").
The Garcia opinion was tentative at the time Defendants filed their notice of supplemental authority, but the court has since denied the plaintiffs' motion for a hearing and the opinion is now final. See Garcia, 2021 WL 492581, at *1.
For the same reason, the advisory opinion is not entitled to Skidmore deference. See Scalia v. Dep't of Transp. & Pub. Facilities, 985 F.3d 742, 748 (9th Cir. 2021) ("Under Skidmore, the weight to be accorded the Secretary's interpretation 'depend[s] upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.' We have given careful consideration to each of these factors, but none of them persuades us that the Secretary's reading of the statute is the better one." (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944))).
3) Statement of Interest
Defendants also ask the Court to consider a "Statement of Interest" submitted by the Department of Justice in a similar case pending in the Middle District of Tennessee, "expressing the government's significant interest in the correct application of the PREP Act." (Defs.' Second Mot. for Leave at 3, Ex. 1 (the "Statement of Interest").) Notably, the government has not submitted a similar statement of interest in this case.
In any event, the Statement of Interest on which Defendants rely focused on the Second Circuit's opinion in In re WTC Disaster Site, 414 F.3d 352 (2d Cir. 2005), and argued that the PREP Act is similar to the Air Transportation Safety and System Stabilization Act of 2001 ("ATSSSA"), which the Second Circuit determined was a complete preemption statute. (Statement of Interest at 9-10.) Judge Chen discredited the ATSSSA comparison in her Dupervil opinion, noting that although the ATSSSA created an administrative "Victim Compensation Fund" to provide relief for injuries resulting from the September 11, 2001 aircraft hijackings, similar to the PREP Act's relief fund, "the ATSSSA also created an alternative, exclusive federal cause of action for claims 'arising out' of the plane hijackings and crashes[.]" Dupervil, 2021 WL 355137, at *10 (citations omitted). Judge Chen noted that "it was [the ATSSSA's] exclusive federal remedy, which could be brought only in the United States District Court for the Southern District of New York, that gave the statute its extraordinary preemptive force, such that any claim within its scope was really a federal-law claim[,]" and "[t]he PREP Act creates no similar exclusive federal cause or right of action." Id. at *11 ("As already discussed, the PREP Act is an immunity statute that simply limits the causes of actions for claims falling within its ambit, leaving only claims involving 'willful misconduct' as able to be adjudicated in federal court, after administrative remedies have been exhausted. Thus, whereas the ATSSSA permits a (specific) federal court to adjudicate ATSSSA claims fully on the merits . . . , the PREP Act permits no such thing.") (citations omitted).
Despite considering the HHS advisory opinions and the Statement of Interest, Judge Chen concluded that "Defendants cite no authority that compels the conclusion that the PREP Act completely preempts state-law claims within its scope such that those claims are really federal-law claims that are removable to federal court." Dupervil, 2021 WL 355137, at So too here. ///
d. Conclusion
Consistent with Chief Judge Hernández's opinion in Parker, a related case against the same defendants already remanded to Multnomah County Circuit Court, as well as the weight of authority of other federal courts, the Court finds that complete preemption does not apply here, and therefore the Court does not have original subject matter jurisdiction over this action. Accordingly, the Court recommends that the district judge remand this case to Multnomah County Circuit Court.
To be clear, "[t]he applicability of the PREP Act is for the state court to decide on remand" and "[t]he Court's ruling is simply that the PREP Act does not completely preempt Plaintiff's state law negligence claims and require a federal forum." Smith, 2021 100376, at *2 n.1.
CONCLUSION
For the reasons stated, the Court withdraws its original Findings and Recommendation (ECF No. 15), and recommends that the district judge GRANT Plaintiffs' motion to remand (ECF No. 6), DENY AS MOOT Defendants' motion to dismiss (ECF No. 5), and REMAND this case to Multnomah County Circuit Court.
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SCHEDULING ORDER
The Court will refer its Findings and Recommendation to a district judge. Objections, if any, are due within fourteen (14) days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen (14) days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
The Court does not allow replies in support of objections, or any further supplemental briefing, without leave of court.
DATED this 16th day of February, 2021.
/s/_________
HON. STACIE F. BECKERMAN
United States Magistrate Judge