Law360 (March 18, 2021, 5:23 PM EDT) --
The first two dozen of what may be tens of thousands of cases have already been filed by the families of long-term care residents who contracted COVID-19. The plaintiffs typically allege that the facilities were negligent or otherwise violated various state law duties of care in their response to the COVID-19 pandemic. And the plaintiffs almost universally file suit in state court.
The initial battle in these cases is now clear: whether the cases will be litigated in state or federal courts.
Long-term care facilities have wisely been attempting to remove these cases to federal court. They've faced mixed success.
The U.S. District Court for the Central District of California recently found one suit, Compare Garcia v. Welltower OpCo Group LLC, entirely preempted by federal law and the facility entitled to immunity, whereas other district courts have remanded cases back to state court. The issue is now heading to the federal courts of appeals, which will begin to settle the law in their respective circuits.
They should find in favor of federal jurisdiction. Long-term care facilities were at the center of an all-hands-on-deck federal response to the COVID-19 threat, and their conduct cannot be judged independent of the federal direction they received. That makes a federal forum the proper forum under two different doctrines: federal officer removal and complete preemption.
Federal Officer Removal
Congress established a broad standard for federal officer removal to ensure a federal forum not just for federal officials, but for those who assist them.
To successfully invoke federal officer removal, a defendant must be (1) acting under a federal officer and (2) the suit must be one relating to any act under color of such federal office. The defendant also must have a colorable federal defense.
Suits against long-term care facilities participating in Medicare and Medicaid programs that raise claims related to the COVID-19 mitigation and prevention precautions undertaken by those facilities are such suits and therefore belong in federal court.
Long-term care facilities participating in Medicare or Medicaid acted under federal officials because officials at the Centers for Medicare and Medicaid Services, working to ensure that the Centers for Disease Control and Prevention's public health guidance was being implemented, conscribed those facilities into the federal response to COVID-19.
Because they house the most vulnerable population in the country, long-term care facilities were at the very front lines of the government's efforts to prevent COVID-19 deaths.
From day one, CMS directed a response that, to use the words of the U.S. Supreme Court in Watson v. Philip Morris Cos. in 2007, went "beyond simple compliance with the law" but rather required long-term care facilities to help "officers fulfill [the] basic governmental task" of protecting a vulnerable population during a pandemic.
CMS dictated the standards for infection prevention and control believed necessary to provide safe, high-quality care. CMS issued, and then continuously modified, guidance on visitor access, personal protective equipment use, testing frequency, monitoring of staff and dealing with residents with COVID-19.
CMS also ordered compliance checks to ensure long-term care facilities complied with the federal direction. CMS' frequent and pervasive direction to achieve the federal function of protecting a vulnerable population means long-term care facilities acted under those federal officials.
The suits also relate to such acts. To qualify for removal, only the circumstances that gave rise to the suit need relate to the federally directed acts.
Given the pervasiveness of CMS' direction, in all but the rarest case, a suit challenging a long-term care facility's COVID-19 response will relate to the acts directed by federal officials.
And, as discussed next, many of these cases will turn on whether long-term care facilities are immune under the federal Public Readiness and Emergency Preparedness Act, which establishes a federal immunity defense in times of public health emergencies that should be resolved in federal court.
The second basis for removal is complete preemption based on the PREP Act. When a federal statute "displace[s] entirely any state cause of action," federal jurisdiction is proper because the only possible claim is a federal one.
The PREP Act is such a statute. When the secretary of the U.S. Department of Health and Human Services declares a public health emergency, the PREP Act confers immunity "from suit and liability under Federal and State law" for any "covered person … 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."
The sole exception to a covered person's immunity is in cases of willfulness and, even there, the remedy is an exclusive federal cause of action before a three-judge court in the U.S. District Court for the District of Columbia. This structure — pairing preemption with a sole federal cause of action — is the defining feature of statutory schemes that completely preempt state causes of action.
Many claims against long-term care facilities will fall within the PREP Act's preemptive scope. The secretary has designated masks, respirators and COVID-19 tests as covered countermeasures, meaning the PREP Act applies to any claims against covered persons relating to the administration or use of those countermeasures.
The secretary has also made explicit that this immunity broadly applies to claims concerning both the use and the failure to provide countermeasures, such as when limited supplies lead to prioritizing certain uses at the expense of others.
Because Congress afforded the secretary unreviewable discretion to designate such countermeasures, this determination should receive significant judicial deference. And it is beyond dispute that long-term care facilities are covered persons entitled to the act's protection — they administer and dispense such countermeasures, and provide a facility where countermeasures are administered or used.
Indeed, the office of the secretary has taken the position that the PREP Act completely preempts claims in this area.
Federal jurisdiction makes good sense. Federal officer removal exists in part to protect those who work with the federal government from anti-federal government bias in state courts. It ensures those with colorable federal defenses will receive fair treatment of those federal defenses by ensuring they are adjudicated in federal court.
Long-term care facilities warrant that protection for actions they took in conjunction with the federal government's national response to the COVID-19 public health emergency.
Andrew D. Silverman and Marc R. Shapiro are partners at Orrick Herrington & Sutcliffe LLP.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
 Compare Garcia v. Welltower OpCo Grp. LLC , 2021 WL 492581 (C.D. Cal. Feb. 10, 2021), with Lyons v. Cucumber Holdings, LLC , 2021 WL 364640 (C.D. Cal. Feb. 3, 2021), and Dupervil v. All. Health Operations, LCC , 2021 WL 355137 (E.D.N.Y. Feb. 2, 2021).
 See Watson v. Philip Morris Cos ., 551 U.S. 142, 152 (2007) (private party is "acting under" a federal officer when it is "involve[d in] an effort to assist, or to help carry out, the duties or tasks of the federal superior"); Jacks v. Meridian Res. Co., 701 F.3d 1224, 1232-33 (8th Cir. 2012) (Congress's decision to "establish a health benefits program for federal employees" by "set[ting] up a partnership between [the federal government] and private carriers" meant private carriers rendering services were "acting under" federal officers for removal purposes).
 Watson, 551 U.S. at 153.
 Ctrs. for Medicare & Medicaid Servs., CMS Prepares Nation's Healthcare Facilities for Coronavirus Threat (Feb. 6, 2020), https://www.cms.gov/newsroom/press-releases/cms-prepares-nations-healthcare-facilities-coronavirus-threat.
 Id.; Ctrs. for Medicare & Medicaid Servs., Mem. from Director, Quality, Safety & Oversight Grp. to State Survey Agency Directors, Guidance for Use of Certain Industrial Respirators by Health Care Personnel, No. QSO-20-17-ALL (Mar. 10, 2020), https://www.cms.gov/files/document/qso-20-17-all.pdf; 42 C.F.R. §483.80.
 Ctrs. for Medicare & Medicaid Servs., Mem. from Director, Quality, Safety & Oversight Grp. to State Survey Agency Directors, Prioritization of Survey Activities, No. QSO-20-20-All (Mar. 20, 2020), https://www.cms.gov/files/document/qso-20-20-allpdf.pdf.
 See Maryland v. Soper , 270 U.S. 9, 33 (1926) (suit need not "be for the very acts which the [defendant] admits to have been done … under federal authority"); Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286, 292 (5th Cir. 2020) ("a civil action relating to an act under color of federal office may be removed").
 Metro. Life Ins. Co. v. Taylor , 481 U.S. 58, 64 (1987).
 42 U.S.C. § 247d-6d(a)(1).
 See Avco Corp. v. Aero Lodge No. 735, Int'l Ass'n of Machinists & Aerospace Workers , 390 U.S. 557, 559 (1968) (NLRA); Metro. Life Ins. Co. v. Taylor, 481 U.S. 58 (1987) (ERISA); In re WTC Disaster Site, 414 F.3d 352, 375 (2d Cir. 2005) (Air Transportation Safety and System Stability Act).
 Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 85 Fed. Reg. 15,198, 15,202 (Mar. 17, 2020); Dep't of Health & Human Servs., Fourth Amendment to the Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19 and Republication of the Declaration (Dec. 3, 2020), https://www.phe.gov/Preparedness/legal/prepact/Pages/4-PREP-Act.aspx; see also §247d-6d(i)(1)(D), as amended by Coronavirus Aid, Relief, and Economic Security (CARES) Act, Pub. L. No. 116-136, § 3103, 134 Stat. 281, 361 (2020).
 Dep't of Health & Human Servs., Fourth Amendment to the Declaration Under the Public Readiness and Emergency Preparedness Act, supra.
 42 U.S.C. §§247d-6d(d)(1), (i)(6).
 Dep't of Health & Human Servs., Office of the Secretary, General Counsel, Advisory Opinion 21-01 on the Public Readiness and Emergency Preparedness Act and the Scope of Preemption Provision (Jan, 8, 2021), https://www.hhs.gov/guidance/sites/default/files/hhs-guidance-documents/2101081078-jo-advisory-opinion-prep-act-complete-preemption-01-08-2021-final-hhs-web.pdf.
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