Jalili-Farshchi v. Aldersly ( 2021 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MOHAMMAD N. JALILI-FARSHCHI, et Case No. 3:21-cv-04727-JD al., 8 Plaintiffs, ORDER RE MOTION TO REMAND 9 v. Re: Dkt. No. 14 10 ALDERSLY, et al., 11 Defendants. 12 13 Plaintiffs, the children of decedent Shamseddin Jalili-Farshchi, have sued defendants 14 Aldersly, a family of companies that provide retirement and elder care in residential facilities, and 15 Cahill, a family of construction companies that Aldersly hired to renovate its facilities, on 16 California state law claims of elder abuse, medical negligence, and other related claims, arising 17 out of the death of Jalili-Farshchi from COVID-19. Dkt. No. 1, Exh. A. The complaint was 18 originally filed in the Superior Court of California for the City and County of San Francisco. All 19 of the parties reside in California. Id. at ECF 33-36. 20 Aldersly removed the case under 28 U.S.C. §§ 1331, 1441, and 1446, on the theory that the 21 federal Public Readiness and Emergency Preparedness (PREP) Act, 42 U.S.C. § 247d-6d, which 22 was enacted in 2005 to limit tort liability of vaccine manufacturers, creates federal question 23 subject matter jurisdiction by completely preempting Jalili-Farshchi’s state law claims. See Dkt. 24 No. 1 at 3-4. Aldersly also alleged that removal was appropriate under 28 U.S.C. § 1442(a)(1) 25 because plaintiffs sued for acts undertaken at the direction of a federal officer. Id. at 18. 26 Plaintiffs have asked to remand the case. Dkt. No. 14. The parties’ familiarity with the 27 record is assumed, and the case is remanded to the Superior Court. 1 DISCUSSION 2 I. FEDERAL QUESTION REMOVAL 3 As in all federal cases, the foundational principle here is that the jurisdiction of the federal 4 courts is limited to what is authorized by the Constitution and statute. Kokkonen v. Guardian Life 5 Ins. Co. of Am., 511 U.S. 375, 377 (1994). Removal is appropriate only when a case presents a 6 federal question, or involves diversity of citizenship and meets the statutory amount in 7 controversy. 28 U.S.C. §§ 1331, 1332. There is a strong presumption against removal, and the 8 removal statute is strictly construed against finding federal jurisdiction. Gaus v. Miles, 980 F.2d 9 564, 566 (9th Cir. 1992). Any doubts about the propriety of removal should be resolved in favor 10 of a remand to state court. Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th 11 Cir. 2003). Principles of federalism, comity, and respect for the state courts also counsel strongly 12 in favor of scrupulously confining removal jurisdiction to the precise limits that Congress has 13 defined. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941). The defendant 14 always bears the burden of demonstrating that removal was proper. Gaus, 980 F.2d at 566. 15 A. Complete Preemption 16 Complete preemption “is actually a doctrine of jurisdiction and is not to be confused with 17 ordinary preemption doctrine.” Moore v. Dnata US Inflight Catering LLC, Case No. 20-cv-08028 18 JD, 2021 WL 3033577 at *3 (N.D. Cal. July 19, 2021) (quoting Balcorta v. Twentieth Century- 19 Fox Film Corp., 208 F.3d 1102, 1107 n.7 (9th Cir. 2000)). “Congress may so completely pre- 20 empt a particular area that any civil complaint raising this select group of claims is necessarily 21 federal in character.” Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64 (1987). “State law claims 22 that are completely preempted are removable to federal court under the complete preemption 23 corollary to the well-pleaded complaint rule,” sometimes also referred to as the artful pleading 24 doctrine. Moore, 2021 WL 3033577, at *3 (quoting Garcia v. Serv. Employees Int’l Union, 993 25 F.3d 757, 762 (9th Cir. 2021)); see also Caterpillar, Inc. v. Williams, 482 U.S. 386, 392-93 26 (1987). For a federal law to have a complete preemptive effect, “a federal statute must ‘provide 27 the exclusive cause of action for the claim asserted and also set forth procedures and remedies 1 Complete preemption is rare. “The Supreme Court has identified only three statutes that 2 meet this criteria,” namely § 301 of the Labor Management Relations Act, § 502(a) of the 3 Employee Retirement Income Security Act of 1974, and §§ 85 and 86 of the National Bank Act. 4 Id. at 905-06. None of these statutes is in play here. 5 A consensus is emerging that the PREP Act is not a fourth member of the complete 6 preemption family. To be sure, the scope of the immunities and liability limitations in the PREP 7 Act is broad for losses arising out of or relating to “covered countermeasures” recommended by 8 the Secretary of Health and Human Services in response to a public health emergency. 42 U.S.C. 9 § 247d-6d. The PREP Act also established a fund to compensate eligible individuals for covered 10 injuries related to covered countermeasures. 42 U.S.C. § 247d-6e. But the breadth of the PREP 11 Act does not automatically equate to a statement of complete preemption by Congress, and a 12 number of courts have concluded that the statute is not completely preemptive of state law claims. 13 See, e.g., Thomas v. Century Villa, Inc., 21-cv-3013-MCS-KS, 2021 WL 2400970 (C.D. Cal. Jun. 14 10, 2021); Riggs v. Country Manor La Mesa Healthcare Center, 21-cv-331-CAB-DEB, 2021 WL 15 2103017 (S.D. Cal. May 25, 2021); Dupervil v. Alliance Health Operations, LCC, 516 F. Supp. 3d 16 238 (E.D.N.Y. 2021); Acra v. Cal. Magnolia Convalescent Hospital, Inc., 21-cv-898-GW-SHKx, 17 2021 WL 2769041 (C.D. Cal. Jul. 1, 2021); Parker v. St. Jude Pperating Co., LLC, 20-cv-1325- 18 HZ, 2020 WL 8362407 (D. Or. Dec. 28, 2020). 19 The Court’s own analysis leads to the same conclusion. A “federal statute must provide 20 the ‘exclusive cause of action’ for complete pre-emption to apply.” Moore-Thomas v. Alaska 21 Airlines, Inc., 553 F.3d 1241, 1245 (9th Cir. 2009). The PREP Act does not do that. The plain 22 language of the statute indicates that the compensation fund is not the basis of an exclusive federal 23 claim, as Aldersly would have it, but simply an administrative remedy akin to similar provisions in 24 other statutes. See also City of Oakland, 969 F.3d at 908 (“While the Clean Air Act allows a 25 plaintiff to file a petition to seek judicial review of certain actions taken by the Environmental 26 Protection Agency, it does not provide a federal claim or cause of action”) (citations omitted). So 27 too for the immunity grant in the PREP Act, the plain language of which does not vest jurisdiction 1 created an exclusive federal cause of action for claims of willful misconduct, see 42 U.S.C. 2 § 247d-6d(d)(1), plaintiffs have not alleged such conduct here. As a corollary to the lack of 3 exclusive federal jurisdiction, nothing in the language of the PREP Act precludes Aldersly from 4 asserting immunity or other statutory defenses in state court. 5 Overall, Aldersly has not furnished any indication that Congress intended the PREP Act to 6 completely preempt state law claims relating to responses to the COVID-19 pandemic. Its 7 reliance on an advisory opinion published by the Department of Health and Human Services 8 (HHS) is misplaced. It may be that HHS has concluded that the PREP Act is a complete 9 preemption statute. Dkt. No. 1 at 6-9 (citing HHS Advisory Opinion 21-01). But an agency’s 10 commentary is no substitute for Congress’s intent as expressed in the plain language of a statute, 11 and the Court will defer to an advisory opinion “proportional to its ‘power to persuade.’” United 12 States v. Mead Corp., 533 U.S. 218, 235 (2001). The persuasive value here is sharply limited by 13 HHS’s own acknowledgment that Advisory Opinion 21-01 “does not have the force or effect of 14 law.” Dkt. No. 1-5 at ECF 71; see also Thomas, 2021 WL 2400970, at *5; Dupervil, 516 F. Supp. 15 3d at 252. 16 B. Substantial Federal Question 17 That is enough to conclude that removal under the PREP Act was improvident. Aldersly’s 18 alternative suggestion that removal was proper because the complaint otherwise raises a 19 substantial federal issue is also misdirected. See Dkt. No. 1 at 16. Aldersly cites Grable & Sons 20 Metal Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308 (2005), for the 21 proposition that “federal jurisdiction over a state law claim will lie if a federal issue is (1) 22 necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal 23 court without disrupting the federal-state balance approved by Congress.” Gunn v. Minton, 568 24 U.S. 251, 258 (2013) (citing Grable, 545 U.S. at 314-15). 25 None of that warrants removal here on federal question grounds. “Because federal 26 jurisdiction depends solely on the plaintiff’s claims for relief and not on the anticipated defenses to 27 those claims, a case may not be removed to federal court on the basis of a federal defense, 1 quotations and citations omitted). Plaintiffs’ complaint raises only state law claims. Interpretation 2 of federal statutes, including the PREP Act, is not an essential part of any of plaintiffs’ state law 3 claims. And Aldersly’s invocation of immunity under the PREP Act is a defense to, rather than a 4 necessary component of, plaintiffs’ claims, which Aldersly will not be precluded from raising in 5 state court. 6 Aldersly again relies on the HHS advisory opinion to press for a different result, with the 7 same lack of efficacy for the reasons already discussed. The opinion did not examine whether the 8 PREP Act is necessarily raised by plaintiffs’ claims in this case. While there may be a federal 9 interest in uniform interpretations of the PREP Act, as Advisory Opinion 21-01 suggests, Dkt. No. 10 1-5 at ECF 70-71, the adjudication of plaintiffs’ wrongful death and negligence claims do not 11 themselves “require resolution of a substantial question of federal law: the claim[s] neither 12 require[] an interpretation of a federal statute, nor challenge[] a federal statute’s constitutionality.” 13 City of Oakland, 969 F.3d at 906 (citations omitted). Consequently, no federal issue has 14 necessarily been raised, and there is no federal question jurisdiction to sustain removal. 15 II. FEDERAL OFFICER JURISDICTION 16 Aldersly’s “federal officer” removal allegation under 28 U.S.C. § 1442(a)(1) is equally 17 unavailing. Aldersly says it was “sued for acts undertaken at the direction of a federal officer.” 18 Dkt. No. 1 at 18. Section 1442 provides that a person “acting under” the direction of a federal 19 officer may remove to federal court a civil or criminal action commenced against that person in 20 state court. 28 U.S.C. § 1442(a)(1). Congress adopted this provision before the Civil War to 21 ensure that attempts by southern states to challenge federal authority would be heard in federal 22 court. As the plain language of Section 1442(a) indicates, it is intended to protect federal officers 23 from interference with their official duties through state-court litigation. Arizona v. Manypenny, 24 451 U.S. 232, 241-42 (1981). The statute “responds to three general concerns: (1) ‘State-court 25 proceedings may reflect ‘local prejudice’ against unpopular federal laws or federal officials’; (2) 26 ‘States hostile to the Federal Government may impede’ federal law; and (3) ‘States may deprive 27 federal officials of a federal forum in which to assert federal immunity defenses.’” Fidelitad, Inc. 1 U.S. 142, 150 (2007)). Section 1442 is liberally construed to address these issues, but is not 2 limitless in scope. Id. (citing Watson, 551 U.S. at 147). 3 To remove under the section, Aldersly must show “that (a) it is a ‘person’ within the 4 meaning of the statute; (b) there is a causal nexus between its actions, taken pursuant to a federal 5 officer's directions, and plaintiff's claims; and (c) it can assert a ‘colorable federal defense.’ ” 6 Goncalves By & Through Goncalves v. Rady Children's Hosp. San Diego, 865 F.3d 1237, 1244 7 (9th Cir. 2017) (citation omitted). Plaintiffs do not dispute that Aldersly is a person within the 8 meaning of the statute or that Aldersly has a colorable federal defense to plaintiffs claims. 9 Consequently, the salient questions are whether Aldersly acted at the direction of a federal officer, 10 and whether there is a causal nexus between that and plaintiffs’ claims. 11 Neither question may be answered in Aldersly’s favor. To start, Aldersly says it responded 12 to COVID-19 consistent with directives of the Center for Disease Control (CDC), Center for 13 Medicare and Medicaid Services (CMS), and California Department of Public Health (CDPH). 14 Dkt. No. 1 at 27-28. That is not enough for removal on federal officer grounds. “‘[S]imply 15 complying with the law’ does not bring a private actor within the scope of the federal officer 16 removal statute.” Fidelitad, 904 F.3d at 1100 (quoting Watson, 551 U.S. at 152 (emphasis 17 omitted)); see also Riggs v. Airbus Helicopters, Inc., 939 F.3d 981, 985 (9th Cir. 2019) (“‘[A]cting 18 under’ requirement is not satisfied by mere compliance with a regulation ‘even if the regulation is 19 highly detailed and even if the private firm’s activities are highly supervised and monitored.’”) 20 (quoting Watson, 551 U.S. at 153). 21 To illustrate further why this is so, Aldersly stands in very different shoes than the 22 defendant in Leite v. Crane Co., 749 F.3d 1117 (9th Cir. 2014), which sustained the removal by a 23 military contractor of a state court lawsuit alleging a failure to warn about asbestos hazards in 24 naval equipment. The defendant provided declarations by senior officers in the United States 25 Navy stating that the Navy exercised complete control over the form and content of all warnings 26 made by contractors, and that contractors could not include warnings unless specifically required 27 and approved by the Navy. Id. at 1123. Aldersly provided no similar evidence here. 1 Consequently, removal on federal officer grounds was improvident. To hold otherwise on 2 || the record before the Court, or to read Section 1442(a) as broadly as Aldersly urges, would permit 3 removal to federal court in circumstances far beyond anything Congress intended. See Lu 4 Junhong v. Boeing Co., 792 F.3d 805, 808-09 (7th Cir. 2015). 5 CONCLUSION 6 The case remanded to the Superior Court of California for the County of San Francisco. 7 IT IS SO ORDERED. 8 Dated: December 29, 2021 9 10 JAMES JPONATO I United Ftates District Judge 12 © 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 28