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CASE NO. 3:20cv6006-MCR-EMT

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

CHARLES PERSONS, as Personal 

Representative of the ESTATE OF

ELAINE PALMER,

Plaintiff,

v. CASE NO. 3:20cv6006-MCR-EMT

CP/AIG-PENSACOLA DEVLOPMENT,

LLC d/b/a YOUR LIFE OF PENSACOLA 

and VITALITY SENIOR LIVING 

MANEGEMENT, LLC

Defendants.

_________________________________/

ORDER

Pending is the Plaintiff’s Motion to Remand, ECF No. 9, and the Defendants’ 

memo in support of removal, ECF No. 8, and response in opposition to remand, ECF 

No. 10. Having fully considered the matter, the Court concludes that the case must 

be remanded for lack of subject matter jurisdiction. 

I. BACKGROUND

A. Procedural and Factual Background

Plaintiff Charles Persons as Personal Representative of the Estate of Elaine 

Palmer filed suit against Defendant CP/AIG-Pensacola Development, LLC d/b/a 

YourLife of Pensacola (“YourLife”), and Defendant Vitality Senior Living 

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Management, LLC, in the First Judicial Circuit in and for Escambia County, Florida, 

after Ms. Palmer died while a resident of an assisted living facility owned and 

operated by the Defendants. The Complaint asserts claims of wrongful death and 

negligence, alleging the Defendants violated Ms. Palmer’s rights as an assisted 

living resident. See Fla. Stat. § 429.29 (providing a civil action to enforce rights of 

residents living in assisted living facilities). YourLife is a licensed assisted living 

facility in Escambia County, Florida, subject to statutorily mandated duties under 

Florida law and the Florida Administrative Code 58A-5, which require compliance 

with minimum standards of operation and care.1

 Florida law also provides residents 

at an assisted living facility certain rights, including the right to live in a safe 

environment free from abuse and neglect, to be treated with consideration and 

respect, and to have access to adequate and appropriate health care. See Fla. Stat. 

§ 429.28 (Resident Bill of Rights). 

The Complaint alleges that Ms. Palmer was a resident at YourLife and unable 

to adequately care for herself when she suffered a fall on June 27, 2020. She died 

on July 1, 2020. Although the Complaint does not expressly state the cause of her 

death, Ms. Palmer allegedly suffered malnutrition, dehydration, severe pain, and 

COVID-19. The Complaint references a long list of alleged acts and omissions by 

1 Vitality Senior Living Management, LLC is alleged to be vicariously liable for the acts 

of YourLife.

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YourLife’s agents and employees that deprived Ms. Palmer of reasonable care,

including failing to monitor or supervise her, failing to prevent foreseeable harm,

failing to care for her personal hygiene (not bathing her or brushing teeth and 

dressing her in soiled clothing), inadequate staffing and training, and the failing to 

protect Ms. Palmer from COVID-19. Defendants allegedly failed or refused to 

follow COVID-19 prevention and/or control procedures, failed to test her for 

COVID-19, and failed to recognize her symptoms or adequately monitor her health. 

Defendants timely removed the case to federal court on grounds of federal 

question jurisdiction, see 28 U.S.C. §§ 1331, 1441, 1446(b), citing the Public

Readiness and Emergency Preparedness Act (“PREP Act”), 42 U.S.C. §§ 247d-6d, 

247d-6e; the doctrine of complete preemption; and asserting the case involves a 

substantial federal question. The Court required briefing on whether the PREP Act 

suppliesthe requisite subject matter jurisdiction for removal of this case. Defendants 

responded that removal is supported by the Declaration of the Secretary of Health 

and Human Services (“HHS” or “Secretary”), who has invoked the protections of 

the PREP Act, as well as the Secretary’s Amendments to the Declaration and 

Advisory Opinions of the HHS Office of General Counsel (“OGC”). Plaintiff

responded with a motion to remand, citing cases from across the country nearly 

unanimously rejecting Defendants’ arguments and maintaining that preemption 

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under the PREP Act is defensive in nature and invoked only on the administration 

or use of a covered countermeasure, which has not been alleged in this case.

2

B. The PREP Act

The PREP Act was enacted by Congress in 2005 in anticipation of a public 

health crisis. The Act authorizes the Secretary of HHS to invoke its provisions during 

a public health emergency and provides broad immunity to “covered persons.”3

 42 

U.S.C. § 247d-6d(a)(1). Specifically, the statute provides: “a covered person 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 if a 

declaration [required by the PREP Act] . . . has been issued with respect to such 

countermeasure.” Id. A “covered countermeasure” includes a “qualified pandemic 

or epidemic product,”4 a drug, biological product, or a device “that is authorized for 

2 In responding to the Court’s request for jurisdictional briefing, Defendants included no 

case authority supporting removal jurisdiction based on the PREP Act, and in response to the 

Motion to Remand, Defendants cited two cases supporting removal jurisdiction. See Garcia v. 

Welltower OpCo Grp., LLC, Case No. 8:20cv1150-JVS-KESx, 2021 WL 492581 (S.D. Cal. Jan. 

25, 2021, final on Feb. 10, 2021), ECF No. 11; Clara Rachal v. Natchitoches Nursing & Rehab. 

Ctr., LLC, 1:21cv334, at 3-4 n.3 (W.D. La. Apr. 30, 2021), ECF No. 12. Defendants did not 

discuss or distinguish any contrary authority. 

3 A “covered person” is a manufacturer, distributer, or program planner of 

countermeasures, persons who prescribe, administer or distribute a countermeasure, or the agent 

or employee of a person or entity described in the statute. See 42 U.S.C. § 247d-6d(i)(2). This 

includes individuals, corporations public or private, or government agencies. Id. § 247d-6d(i)(5).

4 The phrase “qualified pandemic or epidemic product” includes, in part, a drug, biological 

product or device that is designed to diagnose, mitigate, prevent, treat or cure a pandemic or limit 

the harm, or that is authorized for emergency use. See 42 U.S.C. § 247d-6d(i)(7). 

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emergency use,” or “respiratory protective device that is approved . . . and the 

Secretary determines to be a priority for use during a public health emergency.” Id.

§ 247d-6d(i)(1).

The broad immunity provided under the PREP Act is subject to an exception

for willful misconduct. Id. § 247d-6d(d). The PREP Act provides “exclusive federal 

jurisdiction” over a willful misconduct claim, and any such claim must be filed in 

the United States District Court for the District of Columbia and tried by a threejudge panel after exhaustion of administrative remedies.

5

 Id. § 247d-6d(e)(1), (5). 

Action by the Secretary under the PREP Act is not subject to judicial review, and 

the Act expressly preempts any state countermeasure law that conflicts with a 

countermeasure authorized under the PREP Act. Id. § 247d-6d(b)(7), (8). 

Despite granting broad immunity to those who administer covered 

countermeasures, the PREP Act also establishes an administrative remedy in the 

form of a fund to compensate eligible individuals “for covered injuries directly 

caused by the administration or use of a covered countermeasure,” which is known 

as the “Covered Countermeasure Process Fund.” 42 U.S.C. § 247d-6e(a). The 

procedures and determination of eligibility under the fund are consistent with the 

existing framework for injuries from smallpox countermeasures, see id. § 239a, and 

5 Subsection (d) also provides for an interlocutory appeal to the United States Court of 

Appeals for the D.C. Circuit by a covered person of an order denying a motion to dismiss or 

summary judgment motion rejecting a claim of immunity. 42 U.S.C. § 247d-6d(e)(10).

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any additional regulations the Secretary may promulgate. Id. § 247d-6e(b)(4) 

(requiring proof of direct causation by “compelling, reliable, valid, medical and 

scientific evidence”). The PREP Act requires exhaustion of this administrative 

remedy before a willful misconduct suit may be brought, and on qualifying for 

compensation, the individual must elect either to accept compensation from the fund 

or bring an action for willful misconduct. Id. § 247d-6e(d)(1), (5). For all other 

claims, the administrative process is “exclusive of any other civil action or 

proceeding for any claim or suit this section encompasses,” and judicial review of 

the administrative decision is expressly excluded. Id. § 247d-6e(d)(4), (b)(5)(C).

On March 17, 2020, the HHS Secretary issued a Declaration invoking the 

PREP Act protections in response to COVID-19, after declaring a public health 

emergency on January 31, 2020. 85 F.R. 15198-01. A number of amendments to 

the Declaration have since been issued addressing the scope and meaning of the 

Declaration, with some references to the Act’s preemptive effect and the nature of 

the federal interest protected by the statute.

6 Of particular relevance to this suit, the 

Fourth Amendment to the Declaration, dated December 9, 2020, explicitly states 

6 The Secretary’s Declaration has been amended eight times: First Amendment, 85 Fed. 

Reg. 21,012 (Apr. 15, 2020); Second Amendment, 85 Fed. Reg. 35,100 (June 8, 2020); Third 

Amendment, 85 Fed. Reg. 52,136 (Aug. 24, 2020); Fourth Amendment, 85 Fed. Reg. 79,190 (Dec. 

9. 2020); Fifth Amendment, 86 Fed. Reg. 7,872 (Feb. 2, 2021); Sixth Amendment, 86 Fed. Reg. 

9,516 (Feb. 16, 2021); Seventh Amendment, 86 Fed. Reg. 14,462 (Mar. 16, 2021); Eighth 

Amendment, 86 Fed. Reg. 41,977 (Aug. 4, 2021). See also Leroy v. Hume, Case No. 

20cv5325ARRCLP, 2021 WL 3560876, at *2 (E.D.N.Y. Aug. 12, 2021).

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there is a substantial federal interest in having a “unified, whole-of-nation response 

to the COVID-19 pandemic among federal, state, local, and private-sector entities 

response to the pandemic.” Fourth Amendment, 85 Fed. Reg. 79190-01, at 79197. 

In this Amendment, the Secretary concludes that “there are substantial federal legal 

and policy issues, and substantial federal legal and policy interests within the 

meaning of Grable & Sons Metal Products, Inc. v. Darue Eng’g. & Mf’g., 545 U.S. 

308 (2005), in having a uniform interpretation of the PREP Act.”7

 The Fifth 

Amendment references “complete preemption,” stating, “the PREP Act makes clear 

that there is complete preemption of state law” for covered persons “who prescribe, 

administer, or dispense” countermeasures. Fifth Amendment, 86 Fed. Reg. 7872-

02, 7873-74 (Feb. 2, 2021) (identifying additional covered persons authorized to 

deliver or administer vaccines, even if state law would otherwise prohibit them from 

doing so). 

The Secretary has clarified that all OGC Advisory Opinions are incorporated 

into the Declaration and that the Declaration should be construed in accordance with 

7 In Grable, the Supreme Court articulated the substantial-federal-question doctrine, under 

which courts have federal jurisdiction over a state law suit in which there is a substantial federal 

question that is an “essential element” of the plaintiff’s claim, that is “actually in dispute,” and the 

substantial federal question “appears to be the only legal or factual issue contested in the case.” 

545 U.S. at 315. In Grable, the Supreme Court found a state law quiet title action removable on 

grounds that that the meaning of a federal tax provision, determinative of the quiet title action, was 

“an important issue of federal law that sensibly belongs in a federal court,” despite the lack of a 

comparable federal cause of action. Id. at 315-16 (exercising federal jurisdiction “where the 

controversy respecting the construction and effect of [a federal law] is sufficiently real and 

substantial” (internal quotation omitted)). 

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them. See Fourth Amendment to the Declaration, 85 FR 79190-01. Of note, 

preemption and immunity are addressed in a January 8, 2021 opinion, OGC 

Advisory Opinion 21-01. While acknowledging that the opinion itself does not have 

the force of law, the OGC opined that the doctrines of “complete preemption” and 

substantial federal question are both satisfied by the PREP Act. The OGC concluded 

the Act is a “complete preemption statute” because it both establishes “a federal 

cause of action, administrative or judicial, as the only viable claim [and] vests 

exclusive jurisdiction in a federal court.” OGC Advisory Opinion 21-01 at 2 (Jan. 8 

2021). Also, the Advisory Opinion noted that “the Fourth Amendment to the 

Secretary’s Declaration supports the Grable doctrine,” and concluded, because the 

PREP Act addresses substantial federal interests and issues in a national health 

emergency, “the case belongs in federal court.” Id. According to the Advisory 

Opinion, if a federal court then determines that immunity does not apply, the court 

would proceed to try the case as a diversity suit.8 Id. at 4-5.

In the same Advisory Opinion, the OGC noted the difficulty courts have had 

in determining when the PREP Act is triggered by the non-use of a covered 

countermeasure. The Opinion clarified that the statute extends immunity to any

8

 The Advisory Opinion also opines that federal courts are free to entertain discovery for 

jurisdictional purposes and are obligated to dismiss if no federal cause of action is alleged or if the 

exclusive initial venue is a federal administrative agency. And, if PREP Act immunity is triggered 

and willful misconduct is alleged, the case must be transferred to the District of Columbia.

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countermeasure “relating to” the administration or use of a covered countermeasure, 

which could include a facility’s purposeful allocation of countermeasures or a 

decision to prioritize scarce countermeasures among individuals that results in some 

individuals not receiving a covered countermeasure. By contrast, “the failure to 

purchase any [protective equipment,] if not the outcome of some form of decisionmaking process may not be sufficient to trigger the PREP Act.” OGC Advisory 

Opinion 21-01, at 3.

II. DISCUSSION

Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life 

Ins. Co. of Am., 511 U.S. 375, 377 (1994); Burns v. Windsor Ins. Co., 31 F.3d 1092, 

1095 (11th Cir. 1994). A defendant may remove an action filed in state court that is

within the federal court’s original jurisdiction, that is, where diversity of citizenship

exists, 28 U.S.C. § 1332(a), or the suit is a civil action “arising under the 

Constitution, laws, or treaties of the United States,” 28 U.S.C. § 1331. See 28 U.S.C. 

§ 1441. “[T]he removing party shoulders the burden of establishing federal subjectmatter jurisdiction.” Bowling v. U.S. Bank Nat’l Ass’n, As Tr. for C-Bass Mortg. 

Loan Asset-Backed Certificates, Series 2007-SP2, 963 F.3d 1030, 1034 (11th Cir. 

2020). And it is beyond dispute that any doubts regarding the propriety of federal 

jurisdiction are resolved in favor of remand. See Adventure Outdoors, Inc. v. 

Bloomberg, 552 F.3d 1290, 1294 (11th Cir. 2008).

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To determine whether removal is supported by a claim arising under the 

Constitution or federal laws, courts examine the well-pleaded factual allegations of 

the complaint and ignore potential defenses. See Beneficial Nat’l Bank v. Anderson,

539 U.S. 1, 6 (2003). Under the well-pleaded complaint rule, “federal jurisdiction 

exists only when a federal question is presented on the face of the plaintiff's properly 

pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987) (stating 

the plaintiff is the master of the complaint); see also Dunlap v. G&L Holding Grp., 

Inc., 381 F.3d 1285, 1290 (11th Cir. 2004) (noting a plaintiff may plead state law 

exclusively and avoid federal jurisdiction, “even where a federal claim is also 

available”). Thus, a defense relying on the preemptive effect of a statute does not 

provide a basis for removal, “even if the defense is anticipated in the plaintiff’s 

complaint, and even if both parties concede that the federal defense is the only 

question truly at issue.” Caterpillar, Inc., 482 U.S. at 393. 

Plaintiff has not pleaded a federal claim under the PREP Act. While asserting 

the failure to follow COVID-19 prevention and/or control procedures generally as a 

form of negligence, Plaintiff pleads only state law wrongful death and negligence 

claims based on state-created duties that govern a licensed assisted living facility 

under Florida law and Florida’s patient bill of rights. Therefore, under the wellpleaded complaint rule, there is no federal jurisdiction on the face of the Complaint 

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to support removal. See Caterpillar Inc., 482 U.S. at 394; Beneficial Nat’l Bank,

539 U.S. at 6.

However, the well-pleaded complaint rule is not without exception, and where 

an exception applies, the plaintiff cannot avoid federal jurisdiction by artfully 

pleading it as a state claim.9

 The Supreme Court has identified three circumstances 

that support removal of a state law claim as a federal question: (1) a federal statute 

expressly provides for removal in a given context;10 (2) complete preemption exists 

(also known as super preemption”11) over an area of law, with federal law providing 

an exclusive cause of action and governing procedures; and (3) a substantial federal 

question is raised by the state law claim, as set out in Grable, 545 U.S. at 310, 312-

14, see supra Note 7.

Defendants argue that the PREP Act completely preempts Plaintiff’s state law 

negligence and wrongful death claims such that they are converted into a federal 

9 The artful-pleading doctrine precludes a plaintiff from defeating removal by simply by 

not pleading a necessary federal question. DeRoy v. Carnival Corp., 963 F.3d 1302, 1310 n.11 

(11th Cir. 2020); see also Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398 n.2 (1981) 

(noting courts will not permit a plaintiff to avoid removal jurisdiction by “artful pleading,” that is, 

casting “essentially federal law claims” as state-law claims).

10 See Beneficial Nat’l Bank, 539 U.S. at 6 (discussing the Price–Anderson Act, which 

expressly provides for the removal of tort claims arising out of nuclear accidents). The PREP Act 

does not expressly provide for removal, and there is no argument that it does. 

11 “[C]omplete preemption, also known as super preemption, is a judicially-recognized 

exception to the well-pleaded complaint rule,” which “converts an ordinary state common law 

complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.” 

Garcon v. United Mut. of Omaha Ins. Co., 779 F. App’x 595, 597 (11th Cir. 2019) (quoting Conn. 

State Dental Ass’n v. Anthem Health Plans, 591 F.3d 1337, 1344 (11th Cir. 2009)).

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cause of action and, alternatively, that the state-law claims raise a substantial federal 

question under the PREP Act that supports removal jurisdiction. For reasons that 

follow, the Court disagrees and finds the Defendants have failed to meet their burden 

to prove federal jurisdiction for removal under either theory.

A. Complete Preemption

“Complete preemption is a rare doctrine that entirely transforms a state-law 

claim into a federal claim, regardless of how the plaintiff framed the legal issue in 

his complaint.” Cmty. State Bank v. Strong, 651 F.3d 1241, 1261 n.16 (11th Cir. 

2011) (citing Blab T.V. of Mobile, Inc. v. Comcast Cable Commc’ns, Inc., 182 F.3d 

851, 854–55 (11th Cir. 1999)); see also Schleider v. GVDB Operations, LLC, Case 

No. 21-80664-CIV, 2021 WL 2143910, at *3 (S.D. Fla. May 24, 2021) (stating 

“[c]omplete preemption is a rare occurrence”). It is distinct from “ordinary” or 

“defensive” preemption, which “simply allows a defendant to defeat a plaintiff's 

state-law claim on the merits by asserting the supremacy of federal law as an 

affirmative defense.” See Cmty. State Bank, 651 F.3d at 1261 n.16 (citing Blab T.V., 

182 F.3d at 855). For a claim to arise under federal law for purposes of removal 

jurisdiction, “[a] right or immunity created by the Constitution or laws of the United 

States must be an element, and an essential one, of the plaintiff’s cause of action.” 

Franchise Tax Bd., 463 U.S. at 10-11 (quoting Gully v. First National Bank, 299 

U.S. 109, 112 (1936)).

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The complete preemption doctrine has been applied sparingly and only in the 

context of the Labor Management Relations Act, the Employee Retirement Income 

Security Act, and the National Bank Act. See Beneficial Nat’l Bank, 539 U.S. at 7-

8, 10-11; see also Smith v. GTE Corp., 236 F.3d 1292, 1311 (11th Cir. 2001). While 

there is no definitive test, the Eleventh Circuit has set out several factors to consider 

in determining whether complete preemption applies, including “whether the state 

claim is displaced by federal law under an ordinary preemption analysis, whether 

the federal statute provides a cause of action, what kind of jurisdictional language 

exists in the federal statute, and what kind of language is present in the legislative 

history to evince Congress’s intentions.” Smith, 236 F.3d at 1312 (quoting Blab

T.V., 182 F.3d at 855). The determinative issue is “whether Congress not only 

intended a given federal statute to provide a federal defense to a state cause of action 

that could be asserted either in a state or federal court, but also intended to grant a 

defendant the ability to remove the adjudication of the cause of action to a federal 

court by transforming the state cause of action into a federal [one].” Id.. Cf. Borrero 

v. United Healthcare of New York, Inc., 610 F.3d 1296, 1301 (11th Cir. 2010) 

(discussing preemption under ERISA as requiring two conditions: (1) that at some 

point, the claimant could bring the claim under the federal statute to enforce rights 

under the statute and (2) that no independent legal duty is implicated by the 

defendant’s actions).

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Considering these factors, the Court finds no complete preemption under the 

PREP Act. Without doubt, in situations where it applies, the Act provides broad 

immunity for covered persons and expressly preempts conflicting state laws related 

to covered countermeasures. But, “the PREP Act, is at its core, an immunity statute 

[for covered persons]; it does not create rights, duties, or obligations.” Dupervil v. 

Alliance Health Operations, LLC, 516 F. Supp. 3d 238, 251 (E.D.N.Y. 2021). It 

does not displace all state law negligence claims related to the pandemic or COVID19 in any way. See Est. of Maglioli v. Andover Subacute Rehab. Ctr. I, 478 F. Supp. 

3d 518, 531 (D.N.J. 2020) (concluding the PREP Act “does not ‘occupy the field’

of negligence”). Nor is PREP Act immunity an essential element of the Plaintiff’s 

cause of action. See Franchise Tax Bd., 463 U.S. at 10-11 (requiring a federal right 

to be an essential element of the claim to arise under federal law). Moreover, the 

alleged actions of the Defendants in this instance implicate independent legal duties 

arising under Florida law for the protection of assisted living residents, stemming 

from the Defendants’ alleged inaction and lack of care in relation to those duties. 

The administration or use of a covered countermeasure is not alleged, and several 

courts have determined that the PREP Act does not apply to allegations of the nonuse of a covered countermeasure.12 See, e.g., Lutz v. Big Blue Healthcare, Inc., 480 

12 This complete preemption analysis is not intended to decide the applicability of, or to 

preclude the use of, preemption as a defense, which is a matter to be decided on remand. Accord. 

Est. of Maglioli v. Andover Subacute Rehab. Ctr. I, 478 F. Supp. 3d 518, 533 (D.N.J. 2020)

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F. Supp. 1207, 1212-13 (D. Kan. 2020) (“There is simply no room to read [the PREP 

Act] as equally applicable to the non-administration or non-use of covered 

countermeasures.”); Rodina v. Big Blue Healthcare, Inc., No. 2:20-cv-2319-HLTJPO, 2020 WL 4815102, at *2 (D. Kan. Aug. 19, 2020) (same); Est. of Maglioli, 478 

F. Supp. 3d at 533 (concluding the PREP Act does not cover the failure to use or 

administer countermeasures).

Importantly, with the exception of a claim for willful misconduct, which is 

not at issue here, the PREP Act does not create a cause of action that can be brought 

in federal court. The Act provides an administrative remedy that is exclusive and

does not provide for judicial review. See 42 U.S.C. § 247d-6e; Est. of Jenkins v. 

Beverly Hills Senior Care Facility, Inc., Case No. CV 21-4902-JFW(KSX), 2021 

WL 3563545, at *5 (C.D. Cal. Aug. 12, 2021) (“The Secretary’s determination of 

eligibility and compensation under the [PREP Act compensation] program is final 

and not subject to judicial review.”). The only civil action allowed is for willful 

misconduct, which can be pursued only after exhaustion of administrative remedies 

and can be filed only in the D.C. District Court. See Dupervil, 516 F. Supp. 3d at

251 (“Even with PREP Act claims involving ‘willful misconduct,’ which may be 

brought exclusively in the United States District Court for the District of Columbia, 

(emphasizing the court was not ruling “that the Defendants are, or are not, entitled to a PREP Act 

defense to this or that claim. That is for the state courts to decide on remand.”).

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the plaintiff must first exhaust administrative remedies, and may elect to accept 

compensation from the Process Fund instead of filing suit in federal court.”). 

Because there is no circumstance in which an individual injured by the 

administration or use of a covered countermeasure could bring suit in this Court to 

enforce any right or obligations under the PREP Act, the statute does not reflect a 

congressional intent to allow removal, even assuming the facts implicate the use of 

a covered countermeasure. The Court agrees with the overwhelming majority of 

district courts that have determined the PREP Act creates ordinary defensive or 

conflict preemption, not complete preemption, and therefore it does not provide a 

basis for removal.13 See, e.g., Est. of James R. Jenkins, et al. v. Beverly Hills Senior 

Care Facility, Inc., Case No. CV 21-4902-JFW(KSX), 2021 WL 3563545, at **4–

5 (C.D. Cal. Aug. 12, 2021) (finding no complete preemption because the PREP Act 

13 Thus far, neither the Supreme Court nor the Eleventh Circuit has addressed complete 

preemption under the PREP Act to support removal jurisdiction, nor has any other federal circuit 

court. However, the federal district courts across the country have nearly unanimously rejected the 

proposition that the PREP Act supports removal jurisdiction based on complete preemption. See, 

e.g., Dorsett v. Highlands Lake Ctr., LLC, No. __F. Supp. 3d__, 2021 WL 3879231, at *11 (M.D. 

Fla. Aug. 31, 2021); Est. of Heim v. 1495 Cameron Ave., Case No. CV 21-6221 PA (ADSX), 2021 

WL 3630374, at *4 (C.D. Cal. Aug. 17, 2021); Leroy v. Hume, Case No. 20cv5325ARRCLP, 2021 

WL 3560876, at *2 (E.D.N.Y. Aug. 12, 2021). Est. of Jenkins, 2021 WL 3563545, at *5; Schleider 

v. GVDB Operations, LLC, Case No. 21-80664-CIV, 2021 WL 2143910, at *3 (S.D. Fla. May 24, 

2021); Evans v. Melbourne Terrace RCC, LLC, Case No. 6:21cv381-KA-GJK, 2021 WL 1687173, 

*2 (M.D. Fla. Apr. 29, 2021); Dupervil, 516 F. Supp. 3d at 254; Est. of Smith v. Bristol at Tampa 

Rehab. & Nursing Ctr., LLC, Case No. 8:20-CV-2798-T-60SPF 2021 WL 100376, at *2 (M.D. 

Fla. Jan. 12, 2021); Lutz, 480 F. Supp. 3d at 1218; Est. of Maglioli, 478 F. Supp. 3d at 530-33. But 

see Garcia v. Welltower OpCo Grp., LLC, Case No. 8:20cv1150-JVS-KESx, 2021 WL 492581 

(S.D. Cal. Jan. 25, 2021, final on Feb. 10, 2021), ECF No. 11 (finding complete preemption); 

Clara Rachal v. Natchitoches Nursing & Rehab. Ctr., LLC, 1:21cv334, at 3-4 n.3 (W.D. La. Apr. 

30, 2021), ECF No. 12 (same). 

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“does not completely replace state law claims related to COVID-19” and “the PREP 

Act does not provide a substitute cause of action for Plaintiff[’s] claims based on 

Defendants’ alleged negligence”); Est. of McCalebb v. AG Lynwood, LLC, Case No. 

2:20-cv-09746-SB-PVC, 2021 WL 911951, at *4 (C.D. Cal. Mar. 1, 2021) (noting 

complete preemption requires the creation of a federal cause of action, and “the 

PREP Act does not create original federal jurisdiction over a covered claim”). 

The Court has considered Defendants’ arguments and finds them 

unpersuasive. Regarding the Advisory Opinion’s statement that the PREP Act is a 

complete preemption statute, the Court declines to give it persuasive weight. By its 

own terms, the Advisory Opinion lacks the force of law. An agency’s interpretation 

of a statute is entitled to deference where the statute is silent or ambiguous under

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984), and 

an informal agency opinion may be entitled to weight, depending on “the 

thoroughness evident in its consideration, the validity of its reasoning, its 

consistency with earlier and later pronouncements, and all those factors which give 

it power to persuade, if lacking power to control.” United States v. Mead Corp., 533 

U.S. 218, 228 (2001) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). 

However, courts “have not deferred to an agency’s conclusion that state law is preempted,” Wyeth v. Levine, 555 U.S. 555, 576 (2009), and the undersigned declines 

to do so. Also, the Advisory Opinion lacks persuasive force because it fails to

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acknowledge that at no time could a PREP Act claim be filed in this Court and that 

no federal court except the District of D.C. has jurisdiction over any claim that could 

be brought under the PREP Act. The Court finds no congressional intent expressed 

to make the issue of PREP Act immunity removable to a court that lacks jurisdiction 

over the claim. Therefore, the Court concludes that the Advisory Opinion lacks the 

power to persuade on complete preemption for removal and is not entitled to 

deference. See, e.g., Est. of James R. Jenkins, 2021 WL 3563545, at *5; Dupervil,

516 F. Supp. 3d at 252. 

Defendants also rely on the Fifth Amendment to the Declaration, which states 

that the PREP Act provides “complete preemption.” But a close examination of the 

context of this reference supports the conclusion that ordinary preemption applies. 

The Fifth Amendment extends the scope of “covered persons” who are allowed to 

administer and distribute vaccines by identifying as “covered” those healthcare 

workers who hold an active license in any jurisdiction and those who hold an inactive 

license that was active within the last five years, regardless of whether a particular 

state’s law might otherwise preclude that individual from administering or 

distributing vaccines. In this context, the Secretary states, “the PREP Act makes 

clear that there is complete preemption of state law as described above.” Fifth 

Amendment, 86 Fed. Reg. 7872-02. Used in this sense, the Amendment is 

describing defensive or conflict preemption of a particular state licensing law, not 

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the type of super preemption that creates federal jurisdiction and transforms a state 

action into a federal cause of action for purposes of removal. See Dupervil, 516 F. 

Supp. 3d at 254 n.3. 

Defendants cite the only two district court decisions to have found removal 

justified based on complete preemption under the PREP Act. See Garcia v. 

Welltower OpCo Grp., LLC, Case No. 8:20cv1150-JVS-KESx, 2021 WL 492581 

(S.D. Cal. Jan. 25, 2021) (a “tentative” decision made final on Feb. 10, 2021); Clara 

Rachal v. Natchitoches Nursing & Rehab. Ctr., LLC, 1:21cv334, at 3-4 n.3 (W.D. 

La. Apr. 30, 2021). The Court is not persuaded by the analysis in either case. The 

decision in Rachal is based on an analogy to a clearly distinguishable situation

involving claims that were removed to a federal district court having exclusive venue 

over the claims.

14 And, the Court rejects the preemption conclusion in Garcia 

because the decision gave persuasive deference to the January 8, 2021, OGC 

Advisory Opinion’s discussion of preemption, which the Court has found 

unpersuasive. 

14 The court in Rachal analyzed complete preemption in light of In re WTC Disaster Site, 

414 F.3d 352, 377 (2d Cir. 2005). In that case, at issue was the Air Transportation Safety and 

System Stabilization Act of 2001 (“ATSSSA” ), in which Congress had created an exclusive 

administrative compensation fund and also a federal cause of action with exclusive venue in the 

Southern District of New York, to which the case had been removed. In the In re WTC Disaster 

Site case, the Southern District of New York had appropriately denied remand based on the 

preemptive effect of the ATSSSA and in a situation that differs materially from this case. See

Leroy, 2021 WL 3560876, at **5-6 (distinguishing preemption under the ATSSSA from the PREP 

Act); Dupervil, 516 F. Supp. 3d at 253-54 (same).

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B. Substantial Federal Question

Defendants alternatively argue that the Complaint is removable under the

substantial-federal-question doctrine of Grable & Sons Metal Products, Inc. v. 

Darue Eng'g & Mfg., 545 U.S. 308, 314 (2005), which is referenced in the Fourth 

Amendment to the Declaration and the January 8, 2021, OGC Advisory Opinion. 

Again, the Court disagrees and finds removal is not appropriate despite the federal 

interest articulated in the Amendment.

The relevant question under Grable is: “does a state-law claim necessarily 

raise a stated federal issue, actually disputed and substantial, which a federal forum 

may entertain without disturbing any congressionally approved balance of federal 

and state judicial responsibilities.” 545 U.S. at 314. In other words, “federal 

jurisdiction over a state law claim will lie if a federal issue is: (1) necessarily raised, 

(2) actually disputed, (3) substantial, and (4) capable of resolution in federal court 

without disrupting the federal-state balance approved by Congress.” Gunn v. 

Minton, 568 U.S. 251, 258 (2013). The “substantial” element requires a 

demonstration that the question at issue “is significant to the federal system as a 

whole.” Id. at 263-64. 

Citing Grable, the Fourth Amendment and the Advisory Opinion declare that 

the PREP Act involves “substantial federal legal and policy issues” and reference a

need to maintain “a unified, whole-of-nation response to the COVID-19 pandemic” 

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and a uniform interpretation of the PREP Act. 85 Fed. Reg. 79190-01, at 79197; 

Advisory Opinion 21-01 (stating “the case belongs in federal court” if it will define 

the bounds of PREP Act immunity “in the context of a national health emergency”).

The Court concludes that the broad federal interest covered by the Act does not alone

satisfy the Grable analysis, which also requires that the “substantial” federal 

question must be necessarily raised by, and an essential element of, the plaintiff’s 

claims. 545 U.S. at 315. 

Here, for reasons already stated, the Plaintiff’s cause of action does not 

necessarily raise a substantial federal issue. The Complaint does not reference the 

PREP Act or a covered countermeasure but alleges the negligent failure to follow 

procedures arising from duties of care created under state law that only potentially 

implicates PREP Act immunity as a defense. A federal issue is not an element of 

the Plaintiff’s claims, and therefore, “the federal issue is not necessarily raised.”15

Est. of Jenkins, 2021 WL 3563545, at *6 (addressing the substantial-federal-question

doctrine in relation to the PREP Act and finding it did not support removal); Elliot 

v. Care Inn of Edna LLC, No. 3:20-CV-3185-S, 2021 WL 2688600, at *6 (N.D. Tex. 

15 As clarified in the January 8, 2021, Advisory Opinion, immunity extends to anything 

“relating to” the administration or use of a covered countermeasure, including a facility’s 

purposeful allocation of countermeasures or a conscious decision not to use a covered 

countermeasure or a decision to prioritize scarce countermeasures among individuals. Facts fitting 

within those scenarios are not expressly alleged in the Complaint, which asserts a negligent failure 

to follow procedures, but whether the immunity defense is actually available in this case is not at 

issue and is not decided. 

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June 30, 2021) (“An interpretation of the PREP Act is not an essential element of 

any of Plaintiff’s claims” and immunity can be decided in state court); Dupervil, 516 

F.3d at 258 (concluding that a potential affirmative defense under the PREP Act does 

not show that the plaintiff’s claims are premised on, or require resolution under, the 

PREP Act); see also Adventure Outdoors, 552 F.3d at 1298 (finding that because the 

negligence claims at issue did not “necessarily raise a federal issue,” they did not 

provide “a sufficient basis for the exercise of federal jurisdiction”). Again, it is 

settled law that a case may not be removed on the basis of a federal defense.16 See 

Franchise Tax Bd., 463 U.S. at 14; Caterpillar, 482 U.S. at 399.

Accordingly, the Plaintiff’s Motion to Remand, ECF No. 9 is GRANTED. 

The Clerk is directed to REMAND this case to Circuit Court of the First Judicial 

Circuit in and for Escambia County, Florida, and close the file.

DONE and ORDERED this 9th day of September 2021 

M. Casey Rodgers 

M. CASEY RODGERS

UNITED STATES DISTRICT JUDGE

16 The Advisory Opinion also suggests that a federal court has removal jurisdiction to 

determine the issue of immunity, and if no PREP Act immunity is found, then the court would 

simply try the case as a diversity suit—presumably in the absence of diversity of citizenship at the 

time of removal and with no federal issue. Allowing removal in that situation would effectively 

re-write diversity jurisdiction, which this Court is unwilling to do. See Dupervil, 516 F. Supp. 3d 

at 259 (declining to accept this “effective rewriting of diversity jurisdiction” and citing cases 

reaching the same conclusion).

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