21-2164-cv

Rivera-Zayas v. Our Lady of Consolation Geriatric Care Center

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY 

ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF 

APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER 

IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN 

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY 

ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

At a stated term of the United States Court of Appeals for the Second Circuit, held 

at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 

on the 13th day of April, two thousand twenty-three.

PRESENT:

JOHN M. WALKER, JR.,

GERARD E. LYNCH,

ALISON J. NATHAN,

Circuit Judges.

_____________________________________

Vivian Rivera-Zayas, as the Proposed Administrator 

of the Estate of Ana Martinez, Deceased

Plaintiff-Appellee,

v. 21-2164-cv

Our Lady of Consolation Geriatric Care Center, Our 

Lady of Consolation Geriatric Care Center, DBA 

Our Lady of Consolation Nursing and 

Rehabilitative Care Center, Our Lady of 

Consolation Nursing and Rehabilitative Care 

Center, 

Defendant-Appellants.

_____________________________________

FOR PLAINTIFF-APPELLEE: ADAM R. PULVER (Scott L.

Nelson, Allison M. Zieve, on 
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the brief), Public Citizen 

Litigation Group, 

Washington, DC (Brett R. 

Leitner, Leitner Varughese 

Warywoda PLLC, Melville, 

NY, on the brief).

FOR DEFENDANT-APPELLANTS: ANDREW D. SILVERMAN,

Orrick, Herrington & 

Sutcliffe LLP, New York, 

NY (Megan Alice Lawless, 

Dylan Braverman, Charles K. 

Faillace, Vigorito, Barker, 

Patterson, Nichols & Porter, 

LLP, New York, NY, on the 

brief).

FOR AMICUS CURIAE ATLANTIC LEGAL 

FOUNDATION: Lawrence S. Ebner, Capital 

Atlantic Legal Foundation, 

Washington, DC; Brian T.

Goldman, Holwell Shuster & 

Goldberg LLP, New York, 

NY.

FOR AMICUS CURIAE CHAMBER OF

COMMERCE OF THE UNITED STATES OF 

AMERICA: Tara S. Morrissey, Tyler S. 

Badgley, U.S. Chamber 

Litigation Center, 

Washington, DC; Jeffrey S. 

Bucholtz, Alexander Kazam, 

King & Spalding LLP, 

Washington, DC.

FOR AMICI CURIAE AMERICAN MEDICAL 
3

ASSOCIATION AND MEDICAL SOCIETY

OF THE STATE OF NEW YORK: Erin G. Sutton, American 

Medical Association, 

Chicago, IL.

FOR AMICUS CURIAE DRI, INC.: William M. Jay, Andrew 

Kim, Goodwin Procter LLP, 

Washington, DC.

FOR AMICI CURIAE AARP, AARP

FOUNDATION, JUSTICE IN AGING: Maame Gyamfi, William 

Alvarado Rivera, Kelly 

Bagby, AARP Foundation 

Litigation, Washington, DC; 

Eric Carlson, Justice in 

Aging, Los Angeles, CA.

Appeal from a judgment of the United States District Court for the Eastern District of New 

York (Garaufis, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

DECREED that the judgment of the district court is AFFIRMED.

Defendants-Appellants Our Lady of Consolation Geriatric Care Center and related entities 

(collectively OLOC) appeal from the district court’s grant of Plaintiff-Appellee’s motion to 

remand to state court for lack of subject-matter jurisdiction. This appeal concerns whether the

district court had jurisdiction to adjudicate Plaintiff’s claims arising from infection control 

procedures employed by Defendants in early 2020, during the onset of the COVID-19 pandemic. 

We assume the parties’ familiarity with the underlying facts, the procedural history of the case, 

and the issues on appeal.

BACKGROUND
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On January 8, 2020, Ana Martinez was admitted to OLOC, a nursing home. Plaintiff 

Vivian Rivera-Zayas, Martinez’s daughter, alleges that OLOC had a lengthy history of 

employing poor infection control measures that continued through the onset of the COVID-19 

pandemic in early 2020. On March 21, 2020, Martinez developed a cough and fever, and by 

March 25, OLOC suspected that Martinez might have COVID-19. On March 30, 2020, 

Martinez’s condition deteriorated, and she was taken to the hospital, where she died on April 1, 

2020.

In June 2020, Rivera-Zayas, as administrator of Martinez’s estate, filed suit against OLOC 

in New York Supreme Court, Kings County, bringing claims of negligence, gross negligence, 

negligent supervision, wrongful death, and violations of the New York Public Health Law. 

OLOC then removed the case to the Eastern District of New York. Plaintiff moved to remand the 

case to state court, arguing that there was no basis for a federal court to exercise subject-matter 

jurisdiction over her claims. In August 2021, the district court granted Plaintiff’s motion and 

ordered the case remanded. Rivera-Zayas v. Our Lady of Consolation Geriatric Care Ctr., No. 

20-CV-5153 (NGG) (JMW), 2021 WL 3549878 (E.D.N.Y. Aug. 11, 2021). This appeal 

followed.1

DISCUSSION

This appeal concerns whether this lawsuit was properly removed to federal court. Under 

28 U.S.C. § 1441(a), a state court defendant may remove “any civil action . . . of which the district 

1 Generally, this Court lacks jurisdiction over an appeal from an order remanding a case to state court for lack of 

removal jurisdiction. See 28 U.S.C. § 1447(d). There is an exception, however, for removals pursuant to the federal 

officer removal statute. Id.; see id. § 1442. And when, as here, such a ground for removal is asserted, this court has 

jurisdiction to address additional bases for removal rejected by the district court. See BP P.L.C. v. Mayor & City 

Council of Baltimore, 141 S. Ct. 1532, 1538 (2021).
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courts of the United States have original jurisdiction.” Accordingly, when, as here, there is no 

“diversity of citizenship, federal-question jurisdiction is required.” Caterpillar Inc. v. Williams, 

482 U.S. 386, 392 (1987).2 In addition, 28 U.S.C. § 1442(a)(1) provides that “any officer (or any 

person acting under that officer) of the United States or of any agency thereof” may remove a state 

court suit brought against them “for or relating to any act under color of such office.” The 

complaint here pleads only state law claims. Nevertheless, OLOC contends that removal was 

proper because (1) the Public Readiness and Emergency Preparedness (PREP) Act completely 

preempts Plaintiff’s claims; (2) Plaintiff’s claims arise under federal law because they necessarily 

raise a substantial and disputed federal issue under the test articulated in Grable & Sons Metal 

Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308 (2005); and (3) OLOC “acted 

under” a federal officer when engaged in the conduct complained of. The district court concluded 

that it lacked subject-matter jurisdiction and remanded the case to state court.

“We review de novo the district court’s determination that it lacked subject matter 

jurisdiction and its decision to remand.” Teamsters Loc. 404 Health Servs. & Ins. Plan v. King 

Pharms., Inc., 906 F.3d 260, 264 (2d Cir. 2018). Because we agree that the district court lacked 

jurisdiction, we affirm.

I. Complete Preemption

OLOC’s first argument is that the PREP Act completely preempts Plaintiff’s state law 

claims. “Under the complete-preemption doctrine, certain federal statutes are construed to have 

such ‘extraordinary’ preemptive force that state-law claims coming within the scope of the federal 

2 Unless otherwise indicated, all internal citations, quotation marks, and alterations are omitted.
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statute are transformed, for jurisdictional purposes, into federal claims—i.e., completely 

preempted.” Sullivan v. Am. Airlines, Inc., 424 F.3d 267, 272 (2d Cir. 2005). “In concluding 

that a claim is completely preempted, a federal court finds that Congress desired not just to provide 

a federal defense to a state law claim but also to replace the state law claim with a federal law 

claim and thereby give the defendant the ability to seek adjudication of the claim in federal court.” 

Wurtz v. Rawlings Co., 761 F.3d 232, 238 (2d Cir. 2014). “[W]hen a claim is completely 

preempted, the law governing the complaint is exclusively federal.” Id. at 238–39.

OLOC is not the first medical provider or congregate care facility to argue that the PREP 

Act completely preempts state law claims of deficient medical care following the onset of the 

COVID-19 pandemic. In Solomon v. St. Joseph Hospital, we recently considered—and 

rejected—each of the jurisdictional arguments OLOC raises here. 62 F.4th 54 (2d Cir. 2023). 

We explained that “[t]he PREP Act provides broad immunity ‘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’ during a 

public-health emergency.” Id. at 58 (quoting 42 U.S.C. § 247d-6d(a)(1)). 3 But we also 

explained that “nothing in the PREP Act suggests that Congress was attempting . . . to eliminate 

state-law causes of action for non-immunized claims.” Id. at 62.

The plaintiffs in Solomon pled state-law claims for malpractice, negligence, and gross 

negligence. Id. at 61. Like OLOC here, the defendant hospital argued that the PREP Act 

3 Effective February 4, 2020, the Secretary of Health and Human Services declared “COVID-19 . . . a public health 

emergency” and defined “covered countermeasures” as “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.” Declaration Under 

the PREP Act for Medical Countermeasures Against COVID-19, 85 Fed. Reg. 15,198, 15,202 (Mar. 17, 2020).
7

completely preempted those claims. We disagreed. “To establish complete preemption,

Defendants must first show that the PREP Act preempts state law and substitutes a federal remedy 

for that law, thereby creating an exclusive federal cause of action. Once this is established, the 

question becomes whether [the] state-law claims are within the scope of the federal cause of action. 

If so, the state-law claims are completely preempted.” Id. at 60–61. We held that the plaintiff’s 

claims were not completely preempted, because the only exclusive federal cause of action 

established by the PREP Act was for willful misconduct, as defined in 42 U.S.C. § 247d-6d(c). 

See Solomon, 62 F.4th at 61. “[C]laims for medical malpractice, negligence, and gross negligence 

are plainly not ‘within the scope’ of willful misconduct,” because “[n]egligence and gross 

negligence do not rise to the level of willful misconduct, which the PREP Act defines as ‘a standard 

for liability that is more stringent than a standard of negligence in any form,’” and “under New 

York law, medical malpractice requires only a deviation from the community standards of practice 

that proximately caused the injuries,” which “is more relaxed than the showing required for willful 

misconduct.” Id. (quoting 42 U.S.C. § 247d-6d(c)(1)(B)).

Solomon’s holding forecloses OLOC’s complete preemption arguments here. OLOC 

attempts to distinguish Solomon by pointing to allegations in the complaint that its “conduct was 

‘willful’ and ‘knowing’, and that OLOC ‘acted in so careless a manner as to show complete 

disregard for the rights and safety of others’, ‘acted or failed to act knowing that their conduct 

would probably result in injury or damage’ and ‘acted in so reckless a manner or failed to act in 

circumstances where an act was clearly required, so as to indicate disregard of the consequences 

of their actions or inactions.’” OLOC Supp. Br. 2. But these allegations all support Plaintiff’s 

claim of gross negligence, which Solomon held was outside the scope of the PREP Act’s cause of 
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action for willful misconduct. 62 F.4th at 60–61; see also id. at 61 n.3 (“[The] statutory language 

specifies that no form of negligence can constitute willful misconduct.”).

Accordingly, as in Solomon, we hold that the PREP Act does not completely preempt 

Plaintiff’s claims.

II. “Arising Under” Jurisdiction

In addition to the complete preemption doctrine, OLOC invokes an alternative theory of 

federal question jurisdiction. Under 28 U.S.C. § 1331, federal courts have subject-matter 

jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United 

States.” “[E]ven where a claim finds its origins in state rather than federal law,” “arising under” 

jurisdiction still lies in “a special and small category of cases” in which the 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) (citing Grable, 545 U.S. at 313–14). OLOC argues that Plaintiff’s claims 

fall within this “special and small category of cases.”

We disagree. Here, as in Solomon, the “complaint raises claims under New York law and 

does not, on its face, raise questions of federal law,” and while “Defendants have sought to avail 

themselves of the immunity granted under the PREP Act, our inquiry must be unaided by anything 

alleged in anticipation or avoidance of defenses which it is thought the defendant may interpose 

. . . even if the defense is anticipated in the plaintiff’s complaint, and even if both parties admit 

that the defense is the only question truly at issue in the case.” 62 F.4th at 64. Accordingly, no 

federal issue is necessarily raised, so OLOC’s argument fails at the first step of the analysis.

OLOC’s effort to distinguish Solomon on this point is unavailing. Defendants argue only 
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that Plaintiff’s complaint here “plead[s] a colorable claim under the PREP Act for willful 

misconduct.” OLOC Supp. Br. 4. In other words, OLOC merely rehashes the complete 

preemption argument we rejected above.

Accordingly, we hold that Plaintiff’s claims do not arise under federal law under the test 

articulated in Grable and Gunn.

III. Federal Officer Removal

Finally, OLOC invokes the federal officer removal statute. To do so, “a defendant who is 

not himself a federal officer must demonstrate that (1) the defendant is a person under the statute, 

(2) the defendant acted under color of federal office, and (3) the defendant has a colorable federal 

defense.” Agyin v. Razmzan, 986 F.3d 168, 174 (2d Cir. 2021). With respect to the second 

element, “the word ‘under’ must refer to . . . a relationship that involves acting in a certain capacity, 

considered in relation to one holding a superior position or office,” i.e., a relationship that

“involves subjection, guidance, or control.” Watson v. Philip Morris Cos., 551 U.S. 142, 151 

(2007). “In addition, . . . 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. “[T]he help or assistance 

necessary to bring a private person within the scope of the statute does not include simply 

complying with the law.” Id.

Here, too, Solomon forecloses OLOC’s argument. In Solomon, we explained that 

“Defendants do not ‘act under’ a federal officer simply because they operate in a heavily regulated 

industry,” and that “Defendants’ role during the COVID-19 pandemic has nothing to do with 

whether they were ‘acting under’ a federal officer,” because “[i]t cannot be that the federal 

government’s mere designation of an industry as important—or even critical—is sufficient to 
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federalize an entity’s operations and confer federal jurisdiction.” 62 F.4th at 63. OLOC’s

federal officer arguments fall short for the same reasons. While OLOC emphasizes the important 

role played by congregate care facilities in the early days of the COVID-19 pandemic, the 

government directives they cite ultimately consist of guidance and regulations, which do not 

suffice to establish the requisite “special relationship” to find they acted under federal officers 

within the meaning of the statute. Watson, 551 U.S. at 156–57 (emphasizing the absence of “any 

delegation of legal authority” or “evidence of any contract, any payment, any employer/employee 

relationship, or any principal/agent arrangement” in holding federal officer removal did not apply). 

Accordingly, we hold that the federal officer removal statute does not apply.

* * *

We have considered Appellants’ remaining arguments and find them to be without merit. 

For the foregoing reasons, we AFFIRM the judgment of the district court.

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk of Court