Shlomo Rechnitz, et al. v. Nancy Hearden, et al.

“[W]hen a federal statute wholly displaces” a plaintiff’s “state-law cause of action through complete preemption,” the defendant may remove the case to federal court even though “the complaint does not” purport to “allege a federal claim.” Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6, 8 (2003). In the face of a public health emergency, the Public Readiness and Emergency Preparedness (PREP) Act, 42 U.S.C. §§ 247d-6d, 247d-6e, empowers the Secretary of the Department of Health and Human Services to designate countermeasures to assist in the diagnosis, prevention, treatment, and containment of disease. § 247d-6d(b). The Act grants immunity from suit and liability for certain “covered person[s]” on the front lines responding to public health emergencies for claims relating to the administration or use of a covered countermeasure, § 247d-6d(a)(1); creates an exclusive federal cause of action for claims of willful misconduct, § 247d-6d(d); and establishes a no-fault victim compensation fund for serious injury or death, § 247d-6e. There is a circuit split between the Third, Second, Fifth, and Eighth Circuits on one side and the Ninth Circuit on the other as to whether the Act completely preempts state-law claims for willful misconduct, but they and other circuits hold that the Act does not completely preempt other state-law claims, such as claims of negligence. The question presented is: Does the PREP Act completely preempt state-law claims against a covered person relating to the administration or use of a covered countermeasure, such that the claims may be removed to federal court?