Metropolitan News-Enterprise


Thursday, June 22, 2023


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Court Rejects Like Contentions in 25 Separate Appeals

Ninth Circuit Won’t Examine Correctness of 2022 Opinion Approving Shunting Back to Superior Court

 Action Against Healthcare Provider Based on Alleged Failure to Protect Against COVID-19


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals said “no” 25 times yesterday, in separate memorandum opinions, in response to pleas to reconsider the conclusion reached by a three-judge panel last year that federal preemption does not exist in actions against health care facilities based on the alleged failure to protect patients from being infected by COVID-19.

The respective sets of defendants asserted that the Ninth Circuit’s Feb. 22, 2022 decision in Saldana v. Glenhaven Healthcare LLC contravenes pronouncements by the U.S. Supreme Court.

Each of the 25 appeals was decided yesterday by Ninth Circuit Senior Circuit Judges Diarmuid F. O’Scannlain, Barry G. Silverman, and J. Clifford Wallace.

2022 Decision

The 2022 opinion was authored by District Court Judge Karen E. Schreier of the District of South Dakota, sitting by designation. Signing it were Ninth Circuit Judges Ryan D. Nelson and Lawrence VanDyke.

The plaintiffs were four heirs of Ricardo Saldana, who died in Glen Haven Health Care Center, a nursing home in Glendale. In their Los Angeles Superior Court complaint, they alleged elder abuse, willful misconduct, custodial negligence, and wrongful death.

The defendants— Glenhaven Healthcare LLC, and others—removed the action to the U.S. District Court for the Central District of California. Judge Fernando M. Olguin remanded the case to the Los Angeles Superior Court, finding a lack of federal jurisdiction.

‘PREP’ Act

Appealing from the remand order, Glenhaven argued that there was complete preemption under the federal Public Readiness and Emergency Preparedness (“PREP”) Act, enacted in 2005. That act provides that where the secretary of the Department of Health and Human Services declares a public health emergency—which occurred at the outbreak of the COVID-19 pandemic—there is immunity from liability in responding to that emergency except where there is “willful misconduct,” which gives rise to a federal claim.

It says that “a covered person,” which includes entities, “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....”

In March 2020, then-Secretary Alex Azar issued a declaration that the PREP ACT provides “liability immunity for activities related to medical countermeasures against COVID-19.”

Schreier’s Opinion

The fact that the claim under California law for willful misconduct might be preempted by the PREP Act, Schreier said in the 2022 opinion, does not mean that there is “complete preemption,” precluding a remand.

Eschewing the conclusion reached by Health and Human Services General Counsel Robert P. Charrow in an advisory opinion on Jan. 8, 2021 that the PREP Act qualifies as a “complete preemption” statute, Schreier said the two-part test is whether Congress intended “to displace a state-law cause of action” and whether it provides “a substitute cause of action.” She found that there is one subsection “that explicitly states that there shall be an ‘exclusive Federal cause of action,’ limited to claims against ‘covered persons’ for ‘willful misconduct,’ as the terms are defined in the Act.”

The judge declared:

“The PREP Act neither shows the intent of Congress to displace the non-willful misconduct claims brought by the Saldanas related to the public health emergency, nor does it provide substitute causes of action for their claims. Thus, under this court’s two-part test, the PREP Act is not a complete preemption statute.”

 Wrongly Decided

In their respective briefs on appeal, healthcare providers, represented by various firms, argued that Saldana was incorrectly decided.

In a reply brief, the law firm of Lewis Brisbois Bisgaard & Smith LLP (representing appellants in several of the separate appeals) asserted that “the Saldana Court’s conclusion that the exclusive federal cause of action created by the PREP Act is too limited to find complete preemption because it is only available for willful misconduct contravenes United States Supreme Court authority.”

It maintained that under “controlling Supreme Court authority,” a defendant “has a right to have a federal claim litigated in federal court whether or not it is accompanied by other claims.”

The Ninth Circuit panel “is not bound by a decision if the reasoning or theory of that decision is clearly irreconcilable with the reasoning or theory of intervening higher authority,” the law firm said.

‘Already Denied’

Los Angeles attorney David Zarmi, who handled multiple appeals, wrote that “[t]he Supreme Court has already decided that if any one of a plaintiffs claims is preempted, then the entire case is removable to federal court,” citing the 1983 decision in Franchise Tax Board v. Construction Laborers Vacation Trust for Southern California.

Zarmi commented:

“In Saldana, the Court recognized that the plaintiff’s willful misconduct cause of action potentially fell within the exclusive federal cause of action created by the PREP Act. Yet the Court declined to allow removal solely because other causes of action were not preempted. The Court did not address removability under Franchise Tax Board, which dictates a contrary result.”

(The U.S. Supreme Court denied certiorari in Saldana on Nov. 21, 2022.)

Saldana Followed

The panel declined to consider the correctness of the decision in Saldana. It said, in yesterday’s decisions:

“The district court did not have federal subject matter jurisdiction under the doctrine of complete preemption because the Public Readiness and Emergency Preparedness (PREP) Act…is not a complete preemption statute—that is, it is not one of those ‘rare’ statutes ‘where a federal statutory scheme is so comprehensive that it entirely supplants state law causes of action.’…While the PREP Act may preempt some state-law claims, any such conflict preemption would be an affirmative defense, and would not create federal subject matter jurisdiction.”

The panel also agreed with Saldana that federal jurisdiction was not created under the federal officer removal statute or based on a “embedded federal question.”

Federal Officer

Schreier said in Saldana:

“Glenhaven has failed to substantiate its claims that it was conscripted to assist a federal officer or agency in performance of a government duty or that it was authorized to act for a federal officer. All that Glenhaven has demonstrated is that it operated as a private entity subject to government regulations, and that during the COVID-19 pandemic it received additional regulations and recommendations from federal agencies. Thus, Glenhaven was not ‘acting under’ a federal officer or agency as contemplated by the federal officer removal statute.”

In response to Glenhaven’s assertion of an “embedded federal question,” the judge wrote:

“The claims in the complaint are raised under California law and do not raise questions of federal law on the face of the complaint. Glenhaven seeks to raise a federal defense under the PREP Act, but a federal defense is not a sufficient basis to find embedded federal question jurisdiction.”

The three-judge panel said, in opinion after opinion yesterday”

“In short, all of [the appellant’s] challenges are controlled by Saldana. [The appellant] argues that Saldana was wrongly decided, but cites no ‘clearly irreconcilable’ intervening authority permitting us to overrule it….Accordingly, we apply Saldana.”


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