NOT RECOMMENDED FOR PUBLICATION File Name: 23a0321n.06
No. 22-3876
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jul 13, 2023 ) DEBORAH S. HUNT, Clerk CHARLES J. LEVERT, II, ) Plaintiff-Appellee, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE NORTHERN ) DISTRICT OF OHIO MONTEFIORE HOME, et al., ) Defendants-Appellants. ) OPINION )
Before: CLAY, KETHLEDGE, and LARSEN, Circuit Judges.
CLAY, Circuit Judge. Plaintiff Charles J. Levert II brought this wrongful death action
on behalf of his father, who contracted COVID-19 and died while living at the Montefiore nursing
home in Beachwood, Ohio. Levert sued Montefiore and associated defendants in Ohio state court,
asserting negligence and related state-law claims. Defendants removed the action to the federal
district court, but the district court remanded the case to state court. Montefiore appeals that order,
arguing: (1) that Levert’s claims are completely preempted by the Public Readiness and
Emergency Preparedness Act, 42 U.S.C. §§ 247d-6d(d), 247d-6e (the “PREP Act”); and (2) that
the case is removable under the federal officer removal statute, 28 U.S.C. § 1442(a)(1). For the
reasons set forth below, we AFFIRM.
I. BACKGROUND
A. Factual Background
Levert asserts claims against Defendants Montefiore Home and Menorah Park Center for
Senior Living (collectively, “Montefiore”). The following factual summary is based upon the No. 22-3876, Levert v. Montefiore Home, et al.
allegations in Levert’s complaint. See Hudak v. Elmcroft of Sagamore Hills, 58 F.4th 845, 850
(6th Cir. 2023) (providing factual summary “[a]s alleged in the complaint”).
Levert’s father, Charles J. Levert, Sr. (“Charles”), was a resident at Montefiore until he
died from complications related to COVID-19 on November 18, 2020. Levert alleges that Charles
died as a direct result of Montefiore’s negligence. Specifically, Levert alleges that Montefiore:
(1) failed to provide appropriate infection control measures; (2) failed to provide appropriate
COVID-19 testing; (3) conducted improper testing for COVID-19 and falsified test results.
Compl., R. 1-2, Page ID #12–13. Levert also avers that Montefiore’s misrepresentation of
residents’ COVID-19 status “was material” to his family’s decision to keep Charles at Montefiore.
Id. at Page ID #22. Throughout his complaint, Levert alleges that Montefiore behaved
“negligently, recklessly, willfully and/or wantonly.” Id. at Page ID #12.
B. Procedural History
Levert commenced this action wrongful death action by filing his complaint in the Court
of Common Pleas for Cuyahoga County, Ohio on November 12, 2021. Montefiore removed the
case to the federal district court the next month. In its notice of removal, Montefiore contended
that the PREP Act completely preempted Levert’s state law claims and that the federal-officer
removal statute applied because Montefiore was “acting under federal officers and/or agencies.”
Notice of Removal, R. 1, Page ID #2–3.
Levert filed a motion to remand the case to state court, which the district court granted.
Montefiore’s timely appeal followed.
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II. DISCUSSION
A. Standard of Review
The Court reviews de novo a “district court’s determination that it lacked subject-matter
jurisdiction and its consequent decision to issue a remand order.” Hudak, 58 F.4th at 851 (quoting
Mays v. City of Flint, 871 F.3d 437, 442 (6th Cir. 2017)). The “party requesting a federal forum . . .
bears the burden of establishing federal jurisdiction.” Id. at 852 (citing McNutt v. Gen. Motors
Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936)).
B. Analysis
Montefiore contends that removal was proper, and remand was therefore improper, because
(1) the PREP Act completely preempts Levert’s claims, and (2) the federal officer removal statute
applies. The Court addresses each argument in turn.
1. Complete Preemption
“Only state-court actions that originally could have been filed in federal court may be
removed to federal court by the defendant.” Caterpillar Inc., 482 U.S. at 392. Where there is not
diversity of citizenship, “federal-question jurisdiction is required” to remove a case. Id. To
determine whether federal-question jurisdiction exists, courts apply “the ‘well-pleaded complaint
rule,’ which provides that federal jurisdiction exists only when a federal question is presented on
the face of the plaintiff’s properly pleaded complaint.” Id. (citing Gully v. First Nat’l Bank, 299
U.S. 109, 112–13 (1936)). The well-pleaded complaint rule “makes the plaintiff the master of the
claim; he or she may avoid federal jurisdiction by exclusive reliance on state law.” Id.
Preemption generally serves as a defense, rather than a basis for removal. Id. However,
where complete preemption exists, removal is proper. Id. Complete preemption exists where “the
pre-emptive force of a statute is so ‘extraordinary’ that it ‘converts an ordinary state common-law
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complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.” Id. at
393 (quoting Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 65 (1987)). Complete preemption is so
rare that “[t]he Supreme Court has found only three provisions of federal law to be completely
preemptive: § 301 of the Labor Management Relations Act (‘LMRA’), § 502(a)(1)(B) of the
Employee Retirement Income Security Act (‘ERISA’), and §§ 85 and 86 of the National Bank
Act.” Hudak, 58 F.4th at 852 (citing AmSouth Bank v. Dale, 386 F.3d 763, 776 (6th Cir. 2004)).
The Supreme Court found that those provisions were completely preemptive because they
“provided the exclusive cause of action for the claim asserted and also set forth procedures and
remedies governing that cause of action.” Id. at 852–53 (quoting Roddy v. Grand Trunk W. R.R.
Inc., 395 F.3d 318, 323 (6th Cir. 2005)). Where complete preemption does exist, “a federal statute
will completely preempt only those state-law claims that fall within the scope of the federal cause
of action.” Id. at 853 (citing cases).
a. The PREP Act and the 2020 Declaration
“Congress enacted the PREP Act in 2005 ‘[t]o encourage the expeditious development and
deployment of medical countermeasures during a public health emergency’ by allowing the
[Health and Human Services, or HHS] Secretary ‘to limit legal liability for losses relating to the
administration of medical countermeasures such as diagnostics, treatments, and vaccines.’” Id. at
849 (alterations in original) (quoting Cannon v. Watermark Ret. Cmtys., Inc., 45 F.4th 137, 139
(D.C. Cir. 2022)). To fulfill that purpose, the PREP Act “grants immunity from federal and state
liability to ‘covered person[s] . . . 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’ if the HHS Secretary has issued a declaration under the Act ‘with respect to such
countermeasure.’” Id. (alterations in original) (quoting 42 U.S.C. § 247d-6d(a)(1)). However,
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Congress limited such immunity to claims that have “a causal relationship with the administration
to or use by an individual of a covered countermeasure.” 42 U.S.C. § 247d-6d(a)(1)(B).
Additionally, the PREP Act “ensures that its grant of immunity does not foreclose all possible
relief for harms caused by the administration or use of covered countermeasures by creating a
‘Covered Countermeasure Process Fund’ and a corresponding administrative compensation
scheme.” Hudak, 58 F.4th at 849 (quoting 42 U.S.C. § 247d-6e(a)).
The PREP Act also includes an exception to its grant of immunity by providing “an
exclusive Federal cause of action against a covered person for death or serious physical injury
proximately caused by willful misconduct.” 42 U.S.C. § 247d-6d(d)(1). For the purposes of that
exception, “willful misconduct” is “an act or omission that is taken (i) intentionally to achieve a
wrongful purpose; (ii) knowingly without legal or factual justification; and (iii) in disregard of a
known or obvious risk that is so great as to make it highly probable that the harm will outweigh
the benefit.” Id. at § 247d-6d(c)(1)(A). Congress stipulated that willful misconduct “shall be
construed as establishing a standard for liability that is more stringent than a standard of negligence
in any form or recklessness.” Id. at § 247d-6d(c)(1)(B). “Lastly, the Act requires all claims
asserted under it to be brought before a three-judge panel in the District Court for the District of
Columbia and to meet certain special pleading standards.” Hudak, 58 F.4th at 850 (citing
42 U.S.C. § 247d-6d(e)(1)–(9)).
In March 2020, the HHS Secretary issued its Declaration Under the [PREP] Act for
Medical Countermeasures Against COVID-19, 85 Fed. Reg. 15198 (the “Declaration”). In that
Declaration, the Secretary declared that COVID-19 was a public health emergency under the PREP
Act. Id. at 15198. In response to that emergency, the Secretary recommended “the manufacture,
testing, development, distribution, administration, and use of the Covered Countermeasures.” Id.
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at 15201. “Covered Countermeasures” included “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.” Id. at 15202. The Secretary also provided that
those “Covered Countermeasures must be ‘qualified pandemic or epidemic products,’ or ‘security
countermeasures,’ or drugs, biological products, or devices authorized for investigational or
emergency use.”1 Id.
b. The PREP Act and Complete Preemption
Hudak is this Court’s first published case concerning the PREP Act’s preemptive effect.
Accordingly, it controls. See Darrah v. City of Oak Park, 255 F.3d 301, 309 (6th Cir. 2001). In
Hudak, this Court recognized that “there is no question that the PREP Act has significant ‘pre-
emptive force.’” Hudak, 58 F.4th at 853 (quoting Caterpillar, 482 U.S. at 393). However, the
Court held that where a plaintiff “do[es] not allege willful misconduct related to the administration
or use of covered COVID-19 countermeasures,” the PREP Act does not completely preempt state
law claims. Id. Every other circuit to have considered the issue has reached the same conclusion.
See, e.g., Solomon v. St. Joseph Hosp., 62 F.4th 54, 60–62 (2d Cir. 2023); Maglioli v. All. HC
Holdings LLC, 16 F.4th 393, 406–13 (3d Cir. 2021); Mitchell v. Advanced HCS, L.L.C., 28 F.4th
580, 584–88 (5th Cir. 2022); Manyweather v. Woodlawn Manor, Inc., 40 F.4th 237, 242–46 (5th
Cir. 2022); Martin v. Petersen Health Operations, LLC, 37 F.4th 1210, 1213–14 (7th Cir. 2022);
Saldana v. Glenhaven Healthcare LLC, 27 F.4th 679, 687–88 (9th Cir. 2022).
1 Since first issuing the Declaration, the Secretary has amended it eleven times, most recently on May 12, 2023. See Eleventh Amendment to Declaration Under the [PREP] Act for Medical Countermeasures Against COVID-19, 88 Fed. Reg. 30769. -6- No. 22-3876, Levert v. Montefiore Home, et al.
Hudak held that the PREP Act’s “general immunity provision,” i.e., 42 U.S.C. § 247d-
6d(a)(1), “reflects ‘an ordinary rule of preemption, a defense to liability under state law.’” Hudak,
58 F.4th at 853–54 (quoting Martin, 37 F.4th at 1213). Thus, § 247d-6d(a)(1) “does not create a
federal cause of action that completely preempts covered state-law claims.” Id. Instead, it “might
or might not provide [Montefiore] with a viable defense in state court.” Id. In other words, unless
a plaintiff states a claim under § 247d-6d(d)(1), complete preemption is disqualified as a basis for
removal. Id.
Hudak did not resolve whether § 247d-6d(d)(1) is completely preemptive. See id. at 854.
Section 247d-6d(d)(1) establishes “an exclusive Federal cause of action against a covered person
for death or serious physical injury proximately caused by willful misconduct . . . by such covered
person.” 42 U.S.C. § 247d-6d(d)(1). “Unlike the general immunity provision, it is debatable
whether § 247d-6d(d)(1) completely preempts certain state-law claims.” Hudak, 58 F.4th at 854.
After observing that “[o]ther federal courts of appeals have not reached a consensus as to whether
the PREP Act completely preempts state-law claims that fall within the scope of § 247d-6d(d)(1)’s
federal cause of action,” the Court in Hudak “declin[ed] to decide whether § 247d-6d(e)(1) is
completely preemptive.” Id. The Court reasoned that it need not make such a determination
because the plaintiff’s claims did not fall within the scope of the federal cause of action. Id.
i. Determining Whether Levert’s Claims Fall Under § 247d-6d(d)(1)
The PREP Act establishes an exclusive federal cause of action for willful misconduct only.
Id. As the Third Circuit observed, “[w]illful misconduct is a separate cause of action from
negligence . . . . Congress could have created a cause of action for negligence or general tort
liability. It did not. Just as intentional torts, strict liability, and negligence are independent causes
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of action, so too willful misconduct under the PREP Act is an independent cause of action.”
Maglioli, 16 F.4th at 411 (citing Restatement (Second) of Torts § 519 cmt. d (Am. L. Inst. 1977)).
A plaintiff does not allege willful misconduct under § 247d-6d(d)(1) unless the pleading
contains: (1) allegations willful misconduct related to the administration or use of covered
COVID-19 countermeasures; and (2) allegations of “a ‘causal relationship with the administration
to or use by an individual of a covered countermeasure[.]’” Hudak, 58 F.4th at 853–55 (alteration
in original) (quoting 42 U.S.C. § 247d-6d(a)(2)(B)).
This Court has already determined that allegations around the “failure to use
countermeasures” do not fall under § 247d-6d(d)(1). Id. at 857 (emphasis added). Therefore,
Levert’s allegations that Montefiore failed to implement certain COVID-19 prevention measures
do not fall under § 247d-6d(d)(1). See id. Similarly, although Levert alleges that Montefiore
“conducted improper testing,” he neither alleges that Montefiore did so willfully, nor does
expressly state that the improper testing had a causal relationship with his father’s death. Compl.,
R. 1-2, Page ID #13; see 42 U.S.C. § 247d-6d(a)(2)(B), 247d-6d(e)(3)(A). Therefore, that
allegation does not constitute willful misconduct under the PREP Act.
However, this Court has not determined whether falsifying COVID-19 test results and
withholding reports of positive tests constitute the “administration or use of covered COVID-19
countermeasures” under § 247d-6d(d)(1). As a matter of first impression, we find that they do not.
“Setting aside the issue of what, if any, deference we owe to the Secretary’s reading of the PREP
Act,” the Declaration “encompasses management and operation activities that are taken for the
purpose of distributing and dispensing countermeasures.” Hudak, 58 F.4th at 856–57. Falsifying
COVID-19 test results cannot constitute the “administration . . . of a covered countermeasure,” 42
U.S.C. § 247d-6d(a)(1), because falsifying and concealing test results are not activities “taken for
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the purpose of distributing and dispensing countermeasures.” Hudak, 58 F.4th at 856–57
(emphasis omitted).
Our holding is consistent with the district court in this case, as well as every other district
court in this Circuit to consider the matter. See Mem. Op. and Order, R. 23, Page ID #222
(“[F]alsifying Covid-19 test results is not the ‘administration’ or ‘use’ of a covered
countermeasure.”); Friedman v. Montefiore, 610 F. Supp. 3d 1032, 1044 (N.D. Ohio 2022);
Nemeth v. Montefiore, No. 1:21-CV-02064, 2022 WL 4779035, at *5 (N.D. Ohio Oct. 3, 2022);
Est. of Spring by Spring v. Montefiore Home, No. 1:21-CV-02098-PAB, 2022 WL 1120381, at *5
(N.D. Ohio Apr. 14, 2022); Burris v. Montefiore, No. 1:21-CV-02107-PAB, 2022 WL 1120374,
at *4 (N.D. Ohio Apr. 14, 2022); Wimberly v. Montefiore, No. 1:21-CV-02097-PAB, 2022 WL
1120394, at *5 (N.D. Ohio Apr. 14, 2022); Rosen v. Montefiore, 582 F. Supp. 3d 553, 561 (N.D.
Ohio 2022); Singer v. Montefiore, 577 F. Supp. 3d 633, 643 (N.D. Ohio 2021).
Levert does not allege willful misconduct as defined by the PREP Act. See Hudak, 58
F.4th at 853–55. Accordingly, Montefiore’s arguments concerning complete preemption fail and
the Court need not decide whether the PREP Act’s exclusive cause of action is completely
preemptive. See id. at 854.
2. Federal Officer Removal Statute
Montefiore also asserts that Levert’s claims are “removable because Defendants were
specifically ‘acting under’ federal officers and federal authority in administering COVID-19
diagnostic tests—a ‘covered countermeasure’ designated as serving a public health function under
the PREP Act.” Appellants’ Br. at 38.
A defendant may remove a state court action to federal court if the action is brought against:
[t]he United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual -9- No. 22-3876, Levert v. Montefiore Home, et al.
capacity, for or relating to any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.
28 U.S.C. § 1442(a)(1). “Federal courts have subject-matter jurisdiction over claims that are
properly removed under § 1442(a)(1).” Hudak, 58 F.4th at 858 (citing Mesa v. California, 489
U.S. 121, 136 (1989)). In cases where the defendants are not federal officers, the removing
defendants “must satisfy three requirements in order to invoke the federal-officer removal statute:
(1) the defendants must establish that they acted under a federal officer, (2) those actions must
have been performed under color of federal office, and (3) the defendants must raise a colorable
federal defense.” Mays v. City of Flint, 871 F.3d 437, 442–43 (6th Cir. 2017) (citing Bennett v.
MIS Corp., 607 F.3d 1076, 1085 (6th Cir. 2010)).
To demonstrate that it was acting under a federal officer, Montefiore “must show that it
was ‘in a relationship with the federal government where the government [was] functioning as the
defendant’s superior.’” Hudak, 58 F.4th at 858 (quoting Mays, 871 F.3d at 444). Such a
“relationship typically involves subjection, guidance, or control.” Watson v. Philip Morris
Companies, Inc., 551 U.S. 142, 151 (2007) (quotation omitted). “In addition, precedent and
statutory purpose make clear that the private person’s ‘acting under’ must involve an effort to
assist, or to help carry out, the duties or tasks of the federal superior.” Id. at 152. Importantly,
“the help or assistance necessary to bring a private person within the scope of the statute does not
include simply complying with the law.” Id.
In Hudak, the defendants made the same argument that Montefiore makes here. The Court
in Hudak expressly rebuffed the defendants’ arguments that they were “acting under” a federal
officer because they had to comply with federal mandates, and because they “performed a
governmental function by helping to contain the spread of the COVID-19 virus.” Hudak, 58 F.4th
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at 859. Montefiore’s arguments fail for the same reason: Montefiore “did not have an agreement
with the federal government, did not produce a good or perform a service on behalf of the
government, and has not shown that the federal government exercised control over its operations
to such a degree that the government acted as [Montefiore’s] superior.” Id. at 859–60. The Court’s
analysis in Hudak applies verbatim to the instant appeal. Put simply, in passing the PREP Act,
“Congress did not deputize all of these private-sector workers as federal officers.” Maglioli, 16
F.4th at 406. A party cannot invoke the federal officer removal statute simply because it complied
with federal law. Watson, 551 U.S. at 152.
CONCLUSION
For the reasons stated above, the district court’s order remanding this case to state court is
AFFIRMED.
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