COVID-19 cases may be in decline, but pandemic-related court cases are likely to escalate. Grief and loss remain for thousands who lost loved ones, including many who died in nursing homes. But which court will hear their lawsuits? One nursing home wanted the case against it to be heard in federal court, but the Ninth Circuit disagreed. The court’s opinion may signal that state courts are the proper venue for future claims.
Four relatives of Ricardo Saldana sued Glenhaven Nursing Home in Glendale, California for failing to protect him from the COVID-19 virus. Their complaint contained four causes of action: elder abuse, willful misconduct, custodial negligence, and wrongful death. Glenhaven removed the case to federal court, but it was sent back to the United States District Court for the Central District of California because of a lack of subject matter jurisdiction. Glenhaven appealed. On February 22, the Ninth Circuit Court of Appeals affirmed the district court’s decision.
Ricardo Saldana was a resident of Glenhaven Nursing home from 2014 to 2020. Four of his surviving relatives sued the nursing home, alleging that it failed to properly protect Ricardo from the deadly virus. When the District Court failed to permit the case to be heard, Glenhaven appealed, citing three reasons why federal jurisdiction would be proper. The unanimous opinion by Karen E. Schreier, United States District Judge for the District of South Dakota, sitting by designation, disagreed with all of them.
Schreier began by explaining the legal standard that governs state court transfers to federal court. Basically, removals are permitted when defendants can demonstrate a “causal nexus” between the defendant’s actions and the plaintiff’s claims. Defendants must have acted under a federal officer’s directions and a “colorable federal defense” must exist, although it need not be “clearly sustainable.”
Glenhaven argued that there was a causal nexus here because the “federal government and its agencies . . . became hyper-involved in the operational activities of nursing facilities in response to the pandemic.” The opinion disagreed, stating that government communications with nursing homes, including those from the Centers for Disease Control (CDC), were “nothing more than regulations and recommendations.” Thus, the nursing home failed to identify any federal government duty that it performed.
The opinion next reviewed each of Glenhaven’s arguments for federal jurisdiction. First, they argued that none of Saldanas’ claims were valid in light of the Public Readiness and Emergency Preparedness (PREP) Act. Enacted in 2005, the PREP Act gives those covered “immunity from suit and liability…with respect to all claims for loss…” In March 2020, the Secretary for Health and Human Services issued a declaration about the provision of immunity related to “medical countermeasures against COVID-19” but stressed that the PREP Act was not a “complete preemption statute.” It did allow suits for misconduct.
Even though one of the Saldanas’ claims was for misconduct, that claim alone was not adequate grounds of coverage under the PREP Act. Judge Schreier wrote that the possibility that “one claim may be preempted” is different than finding that the “federal statutory scheme is so comprehensive that it entirely supplants state law causes of action.” She further explained that Congress did not intend the PREP Act to displace state law. It also provided a substitute cause of action.
Glenhaven next argued for jurisdiction under the federal question doctrine, which gives another pathway to federal jurisdiction. But, Schreier said, that doctrine would not apply here. She went on to explain that the four causes of action in the Saldanas’ complaint were all raised under California law and do not even raise federal questions.
The opinion concluded that none of the criteria for federal jurisdiction was satisfied. She recounted that Glenhaven did not act “under a federal officer or carry out a federal duty” to Mr. Saldana. The opinion noted that the PREP act did not completely preempt the relatives’ claims, but said the misconduct claim could possibly move forward. She stressed that there is no embedded federal question in the Saldana case and therefore, the suit was properly remanded to state court.
As of the week ending February 13, according to the CDC, there were 983,312 COVID-19-related deaths in the U.S. Nursing home residents accounted for 149,985 of them. Saldana v. Glenhaven Health Care will be instructive for those who believe the death of their loved ones could have been prevented as it outlines how state and federal law may govern recovery in other states in addition to California.
