Estate of Joseph Maglioli v. Alliance HC Holdings, LLC

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________

Nos. 20-2833
____________

ESTATE OF JOSEPH MAGLIOLI; BERNARD
MAGLIOLI; DANTE MAGLIOLI; ESTATE OF DALE
PETRY; CHRISTOPHER PETRY

v.

ALLIANCE HC HOLDINGS LLC, d/b/a Andover Subacute
& Rehabilitation I; ALLIANCE HC II LLC, d/b/a Andover
Subacute & Rehabilitation II (Alliance Healthcare being
improperly pleaded by name and as a separate entity);
CHAIM SCHEINBAUM; LOUIS SCHWARTZ; JOHN AND
JANE DOES 1-10; ABC AND XYZ CORPORATIONS 1-10

Alliance HC Holdings, LLC, d/b/a Andover
Subacute & Rehabilitation I; Alliance HC II
LLC, d/b/a Andover Subacute & Rehabilitation
II (Alliance Healthcare being improperly
pleaded by name and as a separate entity);
Chaim “Mutty” Scheinbaum; Louis Schwartz,

Appellants
 ____________

No. 20-2834

ESTATE OF WANDA KAEGI; VICTOR KAEGI; ESTATE
OF STEPHEN BLAINE; SHARON FARRELL

v.

ALLIANCE HC HOLDINGS LLC, d/b/a Andover Subacute
& Rehabilitation I; ALLIANCE HC II LLC, d/b/a Andover
Subacute & Rehabilitation II (Alliance Healthcare being
improperly pleaded by name and as a separate entity);
CHAIM “MUTTY” SCHEINBAUM; LOUIS SCHWARTZ;
JOHN and JANE DOES 1-10; ABC and XYZ CORPS 1-10

Alliance HC Holdings, LLC, d/b/a Andover
Subacute & Rehabilitation I; Alliance HC II
LLC, d/b/a Andover Subacute & Rehabilitation
II (Alliance Healthcare being improperly
pleaded by name and as a separate entity);
Chaim “Mutty” Scheinbaum; Louis Schwartz,

Appellants
____________

On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Nos. 2-20-cv-06605 and 2-20-cv-06985)
District Judge: Honorable Kevin McNulty


The Clerk of the Court is directed to amend the official
caption to conform to the listing of parties above.

2
 ____________

Argued: June 23, 2021

Before: CHAGARES, PORTER, and ROTH,
Circuit Judges.

(Filed: October 20, 2021)
____________

Salvatore C. Martino
Malinda A. Miller
Lewis Brisbois Bisgaard & Smith LLP
One Riverfront Plaza, Suite 800
Newark, New Jersey 07102

Jeffry A. Miller
Lann G. McIntyre [ARGUED]
Lewis Brisbois Bisgaard & Smith LLP
550 West C Street, Suite 1700
San Diego, California 92101

Counsel for Appellants Alliance HC Holdings LLC,
Alliance HC II LLC, Chaim Scheinbaum, and Louis
Schwartz

Andrew Kim
William M. Jay
Goodwin Procter LLP
1900 N Street, N.W.
Washington, D.C. 20036

Counsel for Amicus Appellant DRI, Inc.

3
Russell L. Hewit
Ryan A. Notarangelo
Dughi, Hewit & Domalewski, P.C.
340 North Avenue
Cranford, NJ 07016

Counsel for Amicus Appellant Hackensack Meridian
Health

Melissa A. Murphy-Petros
Wilson Elser Moskowitz Edelman & Dicker LLP
55 West Monroe Street, Suite 3800
Chicago, Illinois 60603

Lori Rosen Semlies
Wilson Elser Moskowitz Edelman & Dicker LLP
1133 Westchester Avenue
White Plains, New York 10604

Daniel E. Tranen
Wilson Elser Moskowitz Edelman & Dicker LLP
7751 Carondelet Avenue, Suite 203
Clayton, Missouri 63105

Counsel for Amici Appellants Cambridge
Rehabilitation & Healthcare Center, Oakland
Rehabilitation & Healthcare Center, and Willow
Springs Rehabilitation & Healthcare Center

4
William M. Kelleher
Neil R. Lapinski [ARGUED]
Phillip A. Giordano
Gordon, Fournaris & Mammarella, P.A.
1925 Lovering Avenue
Wilmington, DE 19806

Daniel G.P. Marchese
The Marchese Law Firm, LLC
93 Spring Street, Suite 300
Newton, NJ 07860

Counsel for Appellees Estate of Wanda Kaegi, Victor
Kaegi, Estate of Stephen Blaine, Sharon Farrell,
Estate of Joseph Maglioli, Bernard Maglioli, Dante
Maglioli, Estate of Dale Petry, and Christopher Petry

Adam R. Pulver
Allison M. Zieve
Scott L. Nelson
Public Citizen Litigation Group
1600 20th Street NW
Washington, DC 20009

Counsel for Amicus Appellee Public Citizen Inc.
____________

OPINION OF THE COURT
____________

PORTER, Circuit Judge.

5
 Our Constitution divides powers between the national
government and the states. Powers not delegated to the national
government remain with the people in the states. See Bond v.
United States, 564 U.S. 211, 221 (2011); The Federalist No. 45
(James Madison). The pandemic has tested our federal system,
but this case confirms its resilience. The defendants invite us
to assert the “judicial Power of the United States” over a matter
that belongs to the states. U.S. Const. art. III. We decline that
invitation. We will not exercise power that the Constitution and
Congress have not given us. There is no COVID-19 exception
to federalism.

Joseph Maglioli, Dale Petry, Wanda Kaegi, and Stephen
Blaine were residents of two different New Jersey nursing
homes. Tragically, they died from COVID-19. Their estates
claim that the nursing homes acted negligently in handling the
COVID-19 pandemic, causing the residents’ deaths. The
estates commenced negligence and wrongful-death lawsuits
against the nursing homes in state court on behalf of
themselves, the family members of the deceased, and residents
similarly situated. The nursing homes removed to federal
court, but the District Court dismissed the cases for lack of
subject-matter jurisdiction and remanded them to state court.
The nursing homes appealed, arguing that the District Court
has three independent grounds for federal jurisdiction: federal-
officer removal, complete preemption of state law, and the
presence of a substantial federal issue. We disagree. The
estates have not invoked the power of the federal courts, and
Congress has not given us power to take this case from the state
court. So we will affirm the District Court’s order dismissing
the cases for lack of jurisdiction.

6
 I

A

We begin with some background on the applicable law.
In 2005, Congress passed the Public Readiness and Emergency
Preparedness Act (“PREP Act”), 42 U.S.C. §§ 247d-6d, 247d-
6e. The PREP Act protects certain covered individuals—such
as pharmacies and drug manufacturers—from lawsuits during
a public-health emergency. The Act lies dormant until invoked
by the Secretary of the Department of Health and Human
Services (“HHS”). If the Secretary deems a health threat a
public-health emergency, he may publish a declaration in the
Federal Register recommending certain “covered
countermeasures.” Id. § 247d-6d(b)(1). When the Secretary
makes such a declaration, the covered individuals become
immune from suit and liability from claims related to the
administration of a covered countermeasure. Id. § 247d-
6d(a)(1).

In March 2020, the Secretary issued a declaration under
the PREP Act, declaring that COVID-19 is a public-health
emergency. See Declaration Under the PREP Act for Medical
Countermeasures Against COVID-19, 85 Fed. Reg. 15,198,
15,201 (Mar. 17, 2020). The Secretary recommended a series
of covered countermeasures that includes drugs, devices, and
products “used to treat, diagnose, cure, prevent, or mitigate
COVID-19,” subject to the PREP Act’s definitions. Id. at
15,202. The Secretary has since amended the declaration seven
times. See Seventh Amendment to Declaration Under the
PREP Act for Medical Countermeasures Against COVID-19,
86 Fed. Reg. 14,462 (Mar. 16, 2021). HHS has also issued

7
advisory opinions and guidance letters on various issues
related to the declaration.1

The Secretary controls the scope of immunity through
the declaration and amendments, within the confines of the
PREP Act. A covered person enjoys immunity from all claims
arising under federal or state law that relate to the use of a
covered countermeasure. 42 U.S.C. § 247d-6d(a)(1). Covered
persons include manufacturers, distributors, program planners,
and qualified persons, as well as their officials, agents, and
employees. 85 Fed. Reg. at 15,201.

The scope of immunity is broad. Covered persons are
immune from “any claim for loss that has a causal relationship
with the administration to or use by an individual of a covered
countermeasure.” 42 U.S.C. § 247d-6d(a)(2)(B). That includes
claims relating to “the design, development, clinical testing or
investigation, manufacture, labeling, distribution, formulation,
packaging, marketing, promotion, sale, purchase, donation,
dispensing, prescribing, administration, licensing, or use of
such countermeasure.” Id.

What happens to the claims blocked by PREP Act
immunity? Congress did not leave those injured by covered
countermeasures without recourse. The Act establishes a fund
to compensate “eligible individuals for covered injuries
directly caused by the administration or use of a covered
countermeasure.” Id. § 247d-6e(a). The Secretary has broad
authority to issue regulations determining who and what types

1
See Public Readiness and Emergency Preparedness Act,
Public Health Emergency (July 8, 2021),
https://perma.cc/S576-NXRX.

8
of injuries qualify for compensation under the fund. Id. § 247d-
6e(b)(4)–(5).

There is one exception to this statutory immunity. The
PREP Act provides “an exclusive Federal cause of action
against a covered person for death or serious physical injury
proximately caused by willful misconduct.” Id. § 247d-
6d(d)(1). “Willful misconduct” is in turn defined as “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. § 247d-6d(c)(1)(A). The Act clarifies 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. § 247d-6d(c)(1)(B).
Notwithstanding the statutory definition, the Secretary may
issue regulations that further restrict what acts or omissions
qualify as willful misconduct. Id. § 247d-6d(c)(2)(A).

B

These wrongful-death actions arise from the treatment
of residents at two nursing homes in New Jersey. The
plaintiffs’ two complaints state the same five claims:
(1) negligence—wrongful death as to the named defendants;
(2) negligence—wrongful death as to unnamed defendants;
(3) negligence—ordinary negligence as to unnamed non-
medical employees of the nursing homes and medical
malpractice as to all unknown medical professionals;
(4) negligence as proximate cause of the residents’ injuries;
and (5) punitive damages.

9
 The estates allege that the residents’ deaths “were a
direct result of [the nursing homes’] failures to take measures
to protect them at the facilities from the deadly Covid-19 virus,
and/or medical malpractice.” App. 119, 176. For example, the
estates claim the nursing homes acted negligently by failing to
monitor food preparation, failing to provide personal
protective equipment, failing to timely diagnose and properly
treat the disease, and permitting visitors and employees to enter
the facilities without taking their temperatures or requiring
them to wear masks.

Nursing homes across the country face similar lawsuits.
The story in all of these cases is essentially the same. Estates
of deceased nursing-home residents sue the nursing homes in
state court, alleging that the nursing homes negligently handled
COVID-19. The nursing homes remove to federal court on the
basis of a combination of federal-officer removal, complete
preemption, and a substantial federal issue. Nearly every
federal district court to confront these cases has dismissed for

10
lack of jurisdiction and remanded to the state court.2 We appear
to be the first circuit court to decide these issues.

II

The issue here is whether the District Court had subject-
matter jurisdiction under 28 U.S.C. §§ 1331 and 1442. Because
the nursing homes appeal the issue of federal-officer removal,
we may also review the parts of the District Court’s order
rejecting removal based on complete preemption and a
substantial federal issue. See 28 U.S.C. § 1447(d); BP P. L. C.
v. Mayor of Balt., 141 S. Ct. 1532, 1538 (2021). We review
issues of subject-matter jurisdiction de novo, “including a
court’s decision to remand for a lack of jurisdiction.” Papp v.
Fore-Kast Sales Co., 842 F.3d 805, 810 (3d Cir. 2016).

III

A preliminary issue in this case is deference to HHS
interpretations of the PREP Act under Chevron, U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
The nursing homes urge us to defer to the agency’s
interpretations, which generally favor removal in this case. We
decline to do so.

HHS has interpreted the PREP Act in the Secretary’s
amended declaration and in advisory opinions from the general
counsel. For example, the fifth amendment to the declaration
claims that “[t]he plain language of the PREP Act makes clear
that there is complete preemption of state law.” Fifth
Amendment to Declaration Under the Public Readiness and
Emergency Preparedness Act, 86 Fed. Reg. 7,872, 7,874 (Feb.
2, 2021). Similarly, the fourth amendment to the declaration
asserts that the PREP Act raises “substantial federal legal and

11
2
See, e.g., Martinez v. Spruce Holdings, LLC, No. 21-CV-0739
AWI SAB, 2021 WL 3883704 (E.D. Cal. Aug. 31, 2021);
Dorsett v. Highlands Lake Ctr., LLC, No. 21-CV-0910-KKM-
AEP, 2021 WL 3879231 (M.D. Fla. Aug. 31, 2021); David
Jones v. Legacy Mgmt. Grp. of La. LLC, No. 21-CV-00838,
2021 WL 3416993 (W.D. La. July 7, 2021); Acra v. Cal.
Magnolia Convalescent Hosp., Inc., No. EDCV 21-898, 2021
WL 2769041 (C.D. Cal. July 1, 2021); Gwilt v. Harvard
Square Ret. & Assisted Living, No. 21-CV-0472, 2021 WL
2373768 (D. Colo. June 30, 2021); Elliot v. Care Inn of Edna
LLC, No. 20-CV-3185, 2021 WL 2688600 (N.D. Tex. June 30,
2021); Brannon v. J. Ori, LLC, Nos. 21-CV-00058, 21-CV-
00065, 2021 WL 2339196 (E.D. Tex. June 8, 2021); Rae ex
rel. Montisano v. Anza Healthcare Inc., No. 21-CV-287, 2021
WL 2290776 (S.D. Cal. June 4, 2021); Shapnik v. Hebrew
Home for Aged at Riverdale, No. 20-CV-6774, 2021 WL
1614818 (S.D.N.Y. Apr. 26, 2021); Bolton v. Gallatin Ctr. for
Rehab. & Healing, LLC, No. 20-CV-00683, 2021 WL 1561306
(M.D. Tenn. Apr. 21, 2021); Perez ex rel. Est. of Lozano v. Se.
SNF LLC, Nos. SA-21-CV-00088, SA-21-CV-00089, SA-21-
CV-00090, 2021 WL 1381232 (W.D. Tex. Apr. 12, 2021);
Lopez v. Advanced HCS, LLC, No. 21-CV-00470, 2021 WL
1259302 (N.D. Tex. Apr. 5, 2021); Est. of Cowan v. LP
Columbia KY, LLC, No. 20-CV-00118, 2021 WL 1225965
(W.D. Ky. Mar. 31, 2021); Wright v. Encompass Health
Rehab. Hosp. of Columbia, Inc., No. 20-02636, 2021 WL
1177440 (D.S.C. Mar. 29, 2021); Lopez v. Life Care Ctrs. of
Am., Inc., No. 20-0958, 2021 WL 1121034 (D.N.M. Mar. 24,
2021); Est. of Jones ex rel. Brown v. St. Jude Operating Co.,
LLC, No. 20-CV-1088, 2021 WL 886217 (D. Or. Mar. 8,
2021); Saunders v. Big Blue Healthcare, Inc., No. 20-CV-
02608, 2021 WL 764567 (D. Kan. Feb. 26, 2021); Dupervil v.

12
policy interests within the meaning of Grable & Sons Metal
Products, Inc. v. Darue Eng’g. & Mf’g., 545 U.S. 308 (2005).”
Fourth Amendment to the Declaration Under the Public
Readiness and Emergency Preparedness Act, 85 Fed. Reg.
79,190, 79,197 (Dec. 9, 2020). These views are lightly
developed in some of the advisory opinions.3

Deference is not owed to these interpretations for the
simple reason that HHS is not delegated authority under the
PREP Act to interpret the scope of federal courts’ jurisdiction.
To the extent the PREP Act delegates authority to the
Secretary, it “does not empower the Secretary to regulate the
scope of the judicial power vested by the statute.” Adams Fruit
Co. v. Barrett, 494 U.S. 638, 650 (1990). The Secretary cites
§ 247d-6d(b)(7), claiming that “Congress delegated to [the
Secretary] the authority to strike the appropriate Federal-state
balance.” 85 Fed. Reg. at 79,198. However, § 247d-6d(b)(7)
merely strips courts of jurisdiction to review the Secretary’s
determinations under the PREP Act. The Act does not grant the
Secretary authority to opine on the scope of federal

All. Health Operations, LCC, No. 20-CV-4042, 2021 WL
355137 (E.D.N.Y. Feb. 2, 2021); Est. of Smith ex rel. Smith v.
Bristol at Tampa Rehab. & Nursing Ctr., LLC, No. 20-CV-
2798-T-60SPF, 2021 WL 100376 (M.D. Fla. Jan. 12, 2021);
Sherod v. Comprehensive Healthcare Mgmt. Servs., LLC, No.
20-CV-1198, 2020 WL 6140474 (W.D. Pa. Oct. 16, 2020). But
see Garcia v. Welltower OpCo Grp. LLC, No. SACV 20-
02250, 2021 WL 492581 (C.D. Cal. Feb. 10, 2021) (retaining
jurisdiction and denying a motion to remand).
3
See U.S. Dep’t of Health and Human Servs., Advisory
Opinion on the PREP Act (Apr. 17, 2020) (modified May 19,
2020), https://perma.cc/A73S-3DY6.

13
jurisdiction. The Secretary’s position on the jurisdiction of the
federal courts is not entitled to deference under Chevron. See
In re Kaiser Aluminum Corp., 456 F.3d 328, 344 (3d Cir.
2006).

The nursing homes have cited no decisions in which a
federal court of appeals deferred to an agency’s interpretation
of federal-court jurisdiction, and we are aware of none. Rather,
“[t]he scope of judicial review . . . is hardly the kind of question
that [we] presume[] that Congress implicitly delegated to an
agency.” Smith v. Berryhill, 139 S. Ct. 1765, 1778 (2019). “[I]t
is fundamental ‘that an agency may not bootstrap itself into an
area in which it has no jurisdiction,’” such as “the scope of the
judicial power vested by the statute.” Id. (internal quotation
marks omitted) (quoting Adams Fruit, 494 U.S. at 650).
Federal courts routinely conclude that no deference is owed
such interpretations. See, e.g., Texas v. EPA, 829 F.3d 405, 417
(5th Cir. 2016) (“Because ‘the determination of our jurisdiction
is exclusively for the court to decide,’ we do not defer to the
agency’s interpretation of this section.” (quoting Lopez–Elias
v. Reno, 209 F.3d 788, 791 (5th Cir. 2000))); Our Children’s
Earth Found. v. EPA, 527 F.3d 842, 846 n.3 (9th Cir. 2008)
(“The Agency’s position on jurisdiction is not entitled to
deference under Chevron . . . .”); Allegheny Def. Project v.
FERC, 964 F.3d 1, 11 (D.C. Cir. 2020) (“Federal agencies do
not administer and have no relevant expertise in enforcing the
boundaries of the courts’ jurisdiction.”).

Nor are the agency’s interpretations entitled to respect
under Skidmore v. Swift & Co., 323 U.S. 134 (1944). Again,
the scope of federal courts’ jurisdiction is a legal issue that is
the province of the courts, not agencies. See In re Kaiser, 456
F.3d at 344. Even if HHS has something valuable to say on the
matter, we do not find it in these statements. The fourth and

14
fifth amendments do not interpret the statutory text, cite any
case law (besides Grable), or provide any legal reasoning. The
general counsel’s advisory opinions are likewise unpersuasive.
The Secretary’s conclusory assertions on the scope of our
jurisdiction thus lack the “power to persuade.” Skidmore, 323
U.S. at 140. We now turn to the discussion of jurisdiction in
this case, unclouded by HHS’s views.

IV

The federal-officer-removal statute permits certain
officers of the United States to remove actions to federal court.
28 U.S.C. § 1442(a)(1). To remove a case under § 1442(a)(1),
a defendant must meet four requirements: (1) the defendant
must be a “person” within the meaning of the statute; (2) the
plaintiff’s claims must be based upon the defendant “acting
under” the United States, its agencies, or its officers; (3) the
plaintiff’s claims against the defendant must be “for or relating
to” an act under color of federal office; and (4) the defendant
must raise a colorable federal defense to the plaintiff’s claims.
Id.; see also Papp, 842 F.3d at 812. The estates acknowledge
that the nursing homes meet the first requirement, as they are
“persons” within the meaning of § 1442(a)(1). The disputed
issue is the second, “acting under” requirement. The District
Court ruled that the nursing homes were not “acting under” the
United States, its agencies, or its officers. Moreover, the court
said that, even assuming the first two requirements were met,
the estates’ claims were not “for, or relating to” the nursing
homes’ acts under color of federal office. We need not reach
that issue. We will affirm because the nursing homes were not
“acting under” the United States, its agencies, or its officers.

The nursing homes are private parties, not federal
actors. They may nevertheless invoke federal-officer removal

15
if they show they were “acting under” federal officers. See
Watson v. Philip Morris Cos., 551 U.S. 142, 147 (2007). The
phrase “acting under” is broad, and we construe it liberally. Id.
But the phrase is not boundless. Merely complying with federal
laws and regulations is not “acting under” a federal officer for
purposes of federal-officer removal. Id. at 153. Even a firm
subject to detailed regulations and whose “activities are highly
supervised and monitored” is not “acting under” a federal
officer. Id. The nursing homes must demonstrate something
beyond regulation or compliance. They must show that their
actions “involve an effort to assist, or to help carry out, the
duties or tasks of the federal superior.” Id. at 152.

Government contractors are a classic example. A
private contractor acts under a federal officer when it “help[s]
the Government to produce an item that it needs.” Id. at 153;
see also Papp, 842 F.3d at 812–13. Similarly, a nonprofit
community defender acts under a federal officer by
representing indigent federal defendants. In re
Commonwealth’s Motion to Appoint Couns. Against or
Directed to Def. Ass’n of Phila., 790 F.3d 457, 469 (3d Cir.
2015). The community defender does more than follow federal
law. Id. It is delegated authority to represent defendants under
the Criminal Justice Act and 18 U.S.C. § 3599. Id. It must
adopt bylaws and codes of conduct consistent with federal
public-defender organizations. Id. It must follow detailed
financial guidelines as a condition of receiving federal grant
money, and it must return unspent funds to the federal
government. Id. Its employees cannot practice law outside of
their official duties without the federal government’s
permission. Id. at 469–70. And, by representing indigent
federal defendants, the community defender “provides a

16
service the federal government would itself otherwise have to
provide.” Id. at 469.

The nursing homes here do not assist or help carry out
the duties of a federal superior. They are not government
contractors. See Papp, 842 F.3d at 812–13. They do not have
the close relationship with the federal government that we
recognized in the nonprofit community defenders. They are not
delegated federal authority, nor do they provide a service that
the federal government would otherwise provide. See Def.
Ass’n of Phila., 790 F.3d at 469. The nursing homes argue that
they are heavily regulated, pointing to publications from the
Centers for Medicare & Medicaid Services (“CMS”) and the
Centers for Disease Control and Prevention (“CDC”). The
nursing homes call those publications “comprehensive
directives,” but they are more aptly described as guidance.
Appellants’ Br. 29 (emphasis omitted). In its February 6, 2020
publication, “CMS strongly urge[d] the review of CDC’s
guidance and encourages facilities to review their own
infection prevention and control policies and practices to
prevent the spread of infection.”4 The CDC publication from
March 17, 2020, states a similar purpose: “This document
offers a series of strategies or options to optimize supplies of
eye protection in healthcare settings when there is limited
supply.”5 The publications that the nursing homes rely on

4
Ctrs. for Medicare & Medicaid Servs., Information for
Healthcare Facilities Concerning 2019 Novel Coronavirus
Illness (2019-nCoV) (Feb. 6, 2020), https://perma.cc/8H4R-
ZBZL.
5
Ctrs. for Disease Control and Prevention, Strategies for
Optimizing the Supply of Eye Protection (Mar. 17, 2020),
https://perma.cc/QQ7K-3TK7.

17
contain verbiage denoting guidance, not control. The nursing
homes thus have not shown that they have “an unusually close”
relationship with CMS or CDC. Watson, 551 U.S. at 153.

Even assuming the nursing homes are subject to intense
regulation, that alone does not mean they were “acting under”
federal officers. In Watson, cigarette-manufacturer Philip
Morris was subject to far more intense regulation than the
nursing homes experience here. See id. at 154–56. The Federal
Trade Commission set detailed rules concerning Philip
Morris’s manufacturing, testing, labeling, and advertising of
cigarettes. Id. at 155–56. The Supreme Court said even the
close regulation, without more, did not bring Philip Morris
under the scope of the federal-officer-removal statute. Id. at
157.

The nursing homes invite us to apply a “regulation plus”
doctrine. They argue that “a more specific level of regulation”
may permit removal even though “mere regulation” does not.
Appellants’ Br. 25. We cannot reconcile that notion with
Watson. A “more specific level of regulation” is simply a
difference in the degree of regulatory detail. Appellants’ Br.
25. And the Supreme Court said that “differences in the degree
of regulatory detail or supervision cannot by themselves
transform . . . regulatory compliance into the kind of assistance
that might bring the [agency] within the scope of the statutory
phrase ‘acting under’ a federal ‘officer.’” Watson, 551 U.S. at
157 (quoting 28 U.S.C. § 1442(a)(1)). Even if “regulation
plus” were a proper heuristic, the “plus” cannot merely be more
regulation. See id. The best evidence the nursing homes muster
showing something beyond regulation is that the Cybersecurity
& Infrastructure Security Agency designated nursing homes as

18
essential critical infrastructure.6 But that is also true of doctors,
weather forecasters, clergy, farmers, bus drivers, plumbers, dry
cleaners, and many other workers.7 Congress did not deputize
all of these private-sector workers as federal officers.

V

The nursing homes next argue that complete federal
preemption of the estates’ claims warrants removal to federal
court. They argue that the PREP Act is so pervasive that the
estates’ state-law negligence claims are really federal claims
under the PREP Act, and are thus removable to federal court.
We disagree.

Under 28 U.S.C. § 1441(a), a defendant may remove a
civil action to federal court only if the plaintiff could have
originally filed the action in federal court. If the parties are not
diverse, the complaint must satisfy federal-question
jurisdiction. Caterpillar Inc. v. Williams, 482 U.S. 386, 392
(1987). 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.” Id. A
federal defense “ordinarily does not appear on the face of the
well-pleaded complaint, and, therefore, usually is insufficient
to warrant removal to federal court.” Dukes v. U.S. Healthcare,
Inc., 57 F.3d 350, 353 (3d Cir. 1995). By relying exclusively

6
Cybersecurity & Infrastructure Sec. Agency, Advisory
Memorandum on Ensuring Essential Critical Infrastructure
Workers’ Ability to Work During the Covid-19 Response 7
(Dec. 16, 2020), https://perma.cc/B5GP-9LJK.
7
Id. at 7, 10, 17, 19, 23.

19
on state law, a plaintiff may typically avoid federal court.
Caterpillar, 482 U.S. at 392.

Federal preemption is a defense to state-law claims. We
derive the preemption doctrine from the Supremacy Clause,
which provides that federal laws made pursuant to the U.S.
Constitution “shall be the supreme Law of the Land . . . any
Thing in the Constitution or Laws of any state to the Contrary
notwithstanding.” U.S. Const. art. VI. Where federal law
displaces state law, courts must apply federal law. See Arizona
v. United States, 567 U.S. 387, 398–99 (2012). Federal law
may displace state law in a variety of ways, but we need not
discuss them here.8 What matters in this case is that the nursing
homes raise federal preemption as a defense to state law. They
argue that the PREP Act displaces the estates’ state-law claims,
and thus courts must apply the PREP Act rather than New
Jersey law. Perhaps, but it is not for us to decide. The issue is
whether making that preemption argument gets the nursing
homes into federal court. “The fact that a defendant might
ultimately prove that a plaintiff’s claims are pre-empted . . .

8
This is not an ordinary preemption case. Because “complete
preemption is a distinct concept from ordinary preemption,”
we do not engage in an ordinary preemption analysis. Ry. Lab.
Execs. Ass’n v. Pittsburgh & Lake Erie R.R., 858 F.2d 936, 941
(3d Cir. 1988). Instead, our task is to determine whether the
District Court has removal jurisdiction over the action.
Complete preemption is thus best understood as a
jurisdictional doctrine rather than an ordinary preemption
doctrine. It fits under the heading of removal jurisdiction as a
“corollary of the well-pleaded complaint rule.” Metro. Life Ins.
Co. v. Taylor, 481 U.S. 58, 63 (1987).

20
does not establish that they are removable to federal court.”
Caterpillar, 482 U.S. at 398.

This is where complete preemption comes in.
Ordinarily, a defense of federal preemption does not provide a
basis for removal because it does not appear on the face of the
well-pleaded complaint. See id. at 392–93. The complete-
preemption doctrine provides that a federal question does
appear on the face of the complaint when Congress “so
completely pre-empt[s] a particular area that any civil
complaint raising [the] select group of claims is necessarily
federal in character.” Metro. Life Ins. Co. v. Taylor, 481 U.S.
58, 63–64 (1987). In other words, a federal statute’s
preemptive force can be so great that we treat a displaced state-
law claim as if it were a federal claim. So, although a garden-
variety preemption defense would not satisfy the well-pleaded-
complaint rule, a completely preempted state-law claim does.
See Dukes, 57 F.3d at 354.

Removal is proper only if the federal statute “wholly
displaces the state-law cause of action through complete pre-
emption.” Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 8
(2003). A statute is completely preemptive if it “provide[s] the
exclusive cause of action for the claim asserted and also set[s]
forth procedures and remedies governing that cause of action.”
Id. As applied to this case, we ask whether the PREP Act
“provide[s] the exclusive cause of action” for negligence
claims against the nursing homes.9 Id. at 9. We can break this

9
Before the Supreme Court decided Beneficial National Bank,
our Court required a second step in the analysis. If one of the
defendant’s claims fell within an exclusive federal cause of
action, we would then ask “whether there [was] a clear
indication of a Congressional intention to permit removal

21
question into two parts: (1) Does the PREP Act create an
exclusive federal cause of action? If it does, (2) do any of the
estates’ claims fall within the scope of that cause of action? If
they do, the estates’ claims are completely preempted and
removable to federal court. Here, the PREP Act creates an
exclusive cause of action for willful misconduct. But the
estates allege only negligence, not willful misconduct. The
estates’ negligence claims thus do not fall within scope of the
exclusive federal cause of action. They are not completely
preempted, so they belong in state court.

A

Complete preemption is rare. The Supreme Court has
recognized only three completely preemptive statutes: the
Employee Retirement Income Security Act (“ERISA”), the
Labor Management Relations Act (“LMRA”), and the
National Bank Act. Each of those statutes contains an
exclusive federal cause of action. But the causes of action in
those three statutes were not explicitly exclusive—the Court

despite the plaintiff’s exclusive reliance on state law.” Ry. Lab.
Execs. Ass’n, 858 F.2d at 942. Both parties invite us to apply
that second step, but Beneficial National Bank severed that part
of the analysis. “[T]he proper inquiry focuses on whether
Congress intended the federal cause of action to be exclusive
rather than on whether Congress intended that the cause of
action be removable.” Beneficial Nat. Bank v. Anderson, 539
U.S. 1, 9 n.5 (2003) (emphasis added). We thus focus on
whether the PREP Act provides the exclusive cause of action
for negligence against the nursing homes. See id. at 9. “If so,
then the cause of action necessarily arises under federal law
and the case is removable. If not, then the complaint does not
arise under federal law and is not removable.” Id.

22
inferred exclusivity. Here, our job is easier. The PREP Act
explicitly creates “an exclusive Federal cause of action” for
willful misconduct. 42 U.S.C. § 247d-6d(d)(1). The statute’s
plain language cuts through the dense analysis that we would
otherwise employ to determine whether Congress intended to
create an exclusive cause of action. To demonstrate the
importance of the statutory language in this case, we begin with
the Supreme Court’s cases applying complete preemption.

The Supreme Court first recognized complete
preemption in Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557
(1968). Avco concerned § 301 of the LMRA, which creates a
cause of action for breach of contract between an employer and
a union. Id. at 560–61. Section 301 says that “[s]uits for
violation of contracts between an employer and a labor
organization . . . may be brought in any district court of the
United States having jurisdiction of the parties, without respect
to the amount in controversy or without regard to the
citizenship of the parties.” 29 U.S.C. § 185(a). In Avco, an
employer sued in a state court to enjoin a union from striking,
claiming that the union was violating the “no-strike” clause in
their collective-bargaining contract. Avco Corp., 390 U.S. at
558. The Court held that the employer’s claim was “controlled
by federal substantive law even though it [was] brought in a
state court.” Id. at 560. Because the breach-of-contract claim
was effectively a § 301 claim under the LMRA, the complaint
stated a federal question and was removable to federal court.
Id. at 560–61.

The Court next applied complete preemption in
Metropolitan Life Insurance Co. v. Taylor, 481 U.S. 58 (1987).
Section 502(a)(1)(B) of ERISA creates a cause of action for
employees to recover benefits under a covered plan. See 29
U.S.C. § 1132(a)(1)(B). The Court held that § 502(a)(1)(B)

23
creates an exclusive federal cause of action for resolution of
such disputes. See Metro. Life Ins., 481 U.S. at 62–63. The
Court reasoned that ERISA’s language closely parallels that of
the LMRA, so Congress must have intended the laws to have
similar preemptive power.10 Id. at 65. The Court was also
persuaded by legislative history indicating ERISA should be
regarded as similarly preemptive to § 301 of the LMRA. Id. at
65–66. The state claim, which fell under the scope of
§ 502(a)(1)(B) of ERISA, was thus “necessarily federal in
character” and removable to federal court. Id. at 67.

In Beneficial National Bank v. Anderson, 539 U.S. 1
(2003), the Court extended complete preemption to a third

10
Section 301(a) of the LMRA provides:

Suits for violation of contracts between an
employer and a labor organization . . . may be
brought in any district court of the United States
having jurisdiction of the parties, without respect
to the amount in controversy or without regard to
the citizenship of the parties.

29 U.S.C. § 185(a). Compare § 301(a) of the LMRA to
§ 501(a)(1)(B) of ERISA:

A civil action may be brought . . . by a participant
or beneficiary . . . to recover benefits due to him
under the terms of his plan, to enforce his rights
under the terms of the plan, or to clarify his rights
to future benefits under the terms of the plan . . . .

29 U.S.C. § 1132(a)(1)(B).

24
statute, the National Bank Act. Section 85 of the National Bank
Act governs the rate of interest that a national bank may
lawfully charge, and § 86 provides an exclusive remedy
against a national bank charging excessive interest. See 12
U.S.C. §§ 85, 86. Section 86 says, “In case the greater rate of
interest has been paid, the person by whom it has been paid, or
his legal representatives, may recover back, in an action in the
nature of an action of debt, twice the amount of the interest thus
paid . . . .” Id. § 86. The Court framed the issue narrowly:
“Only if Congress intended § 86 to provide the exclusive cause
of action for usury claims against national banks would the
statute be comparable to the provisions that we construed in the
Avco and Metropolitan Life cases.” Beneficial Nat’l Bank, 539
U.S. at 9. The Court relied on a long line of precedent holding
that § 86 created an exclusive federal cause of action. See id. at
10. The Court also determined that “the special nature of
federally chartered banks” required a uniform rule. Id. at 10–
11 (citing McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 431
(1819)). Thus, a state-law claim for usury against a national
bank actually states a federal claim under §§ 85 and 86 and
may be removed to federal court. Id. at 11.

In all three cases, the Court inferred that the cause of
action was exclusive. The three statutes unambiguously
created causes of action. But they did not unambiguously make
them exclusive. Rather, the Court reasoned that the significant
preemptive force of the statutes indicated congressional intent
to create an exclusive federal cause of action. See Beneficial
Nat. Bank, 539 U.S. at 11; Franchise Tax Bd. v. Constr.
Laborers Vacation Tr. for S. Cal., 463 U.S. 1, 23 (1983). The
PREP Act is different.

The PREP Act unambiguously creates an exclusive
federal cause of action. For nearly all injuries caused by

25
covered countermeasures falling under the Act, the Secretary
has the sole authority to administer and provide compensation
from the designated fund. See 42 U.S.C. § 247d-6e(a)–(b).
Congress carved out a narrow exception “for an exclusive
Federal cause of action against a covered person for death or
serious physical injury proximately caused by willful
misconduct.” Id. § 247d-6d(d)(1). A plaintiff asserting a
willful-misconduct claim must first exhaust administrative
remedies, and may then bring the claim only in the U.S. District
Court for the District of Columbia. Id. §§ 247d-6e(d)(1), 247d-
6d(e)(1). A plaintiff may choose to accept compensation from
the fund instead of filing suit in federal court. Id. § 247d-
6e(d)(5). If the plaintiff chooses to file suit, he must “plead
with particularity each element of [his] claim.” Id. § 247d-
6d(e)(3).

The PREP Act’s language easily satisfies the standard
for complete preemption of particular causes of action. It
provides an “exclusive cause of action . . . and also set[s] forth
procedures and remedies governing that cause of action.”
Beneficial Nat’l Bank, 539 U.S. at 8. The estates admit as
much. Where the PREP Act creates a cause of action, the
estates say “that claim would be one for willful misconduct on
the part of a covered person” that meets the statutory elements.
Appellees’ Br. 42. The Supreme Court has relied on the
complete preemptive force of a statute to infer congressional
intent to create an exclusive federal cause of action. Here, we
have a better source of congressional intent: the words of
Congress. Again, our analysis is straightforward. Congress
said the cause of action for willful misconduct is exclusive, so
it is.

26
 B

Just because the PREP Act creates an exclusive federal
cause of action does not mean it completely preempts the
estates’ state-law claims. To remove to federal court, the
nursing homes also must show that the state-law claims fall
within the scope of the exclusive federal cause of action. In
other words, we must determine whether the estates could have
brought their claims under the PREP Act’s cause of action for
willful misconduct.11 See Aetna Health Inc. v. Davila, 542 U.S.
200, 210 (2004).

A claim for willful misconduct under the PREP Act has
several elements. The plaintiff must show (1) “an act or
omission,” that is taken (2) “intentionally to achieve a
wrongful purpose,” (3) “knowingly without legal or factual
justification,” and (4) “in disregard of a known or obvious risk
that is so great as to make it highly probable that the harm will

11
In the ERISA context, whether a state-law claims fall within
the scope of the exclusive federal cause of action is itself a two-
part question. See Aetna Health Inc. v. Davila, 542 U.S. 200,
210 (2004). “[A] claim is completely preempted . . . under
ERISA § 502(a) only if: (1) the plaintiff could have brought
the claim under § 502(a); and (2) no other independent legal
duty supports the plaintiff’s claim.” N.J. Carpenters & the
Trustees Thereof v. Tishman Const. Corp. of N.J., 760 F.3d
297, 303 (3d Cir. 2014). Some courts have extended that two-
part test to statutes other than ERISA. See, e.g., Hawaii ex rel.
Louie v. HSBC Bank Nevada, N.A., 761 F.3d 1027, 1037–38
(9th Cir. 2014). Because we conclude that the estates could not
have brought their claims under the PREP Act’s willful-
misconduct section, we need not determine whether an
independent legal duty supports their claims.

27
outweigh the benefit.” 42 U.S.C. § 247d-6d(c)(1)(A).
Moreover, the action must be (5) “against a covered person,”
(6) “for death or serious physical injury” that is
(7) “proximately caused by [the covered person’s] willful
misconduct.” Id. § 247d-6d(d)(1). The plaintiff must prove
these elements by “clear and convincing evidence.” Id. § 247d-
6d(c)(3). The PREP Act also provides a rule of construction:
the willful-misconduct requirement “shall be construed as
establishing a standard for liability that is more stringent than
a standard of negligence in any form or recklessness.” Id.
§ 247d-6d(c)(1)(B). Congress’s meticulous definition guides
our analysis.

The estates allege negligence, not willful misconduct.
The two complaints each assert four counts of negligence, plus
a claim for punitive damages. A claim for negligence under
New Jersey law requires the familiar elements of duty, breach,
causation, and damages. Townsend v. Pierre, 110 A.3d 52, 61
(N.J. 2015). In contrast, a claim for willful misconduct under
the PREP Act requires wrongful intent, knowledge that the act
lacked legal or factual justification, and disregard of a “known
or obvious risk that is so great as to make it highly probable
that the harm will outweigh the benefit.” 42 U.S.C. § 247d-
6d(c)(1)(A). The rule of construction removes any doubt: The
PREP Act’s cause of action for willful misconduct
“establish[es] a standard for liability that is more stringent than
a standard of negligence in any form or recklessness.” Id.
§ 247d-6d(c)(1)(B).

Willful misconduct is a separate cause of action from
negligence. The elements of the state cause of action need not
“precisely duplicate” the elements of the federal cause of
action for complete preemption to apply. Davila, 542 U.S. at
216. But complete preemption does not apply when federal law

28
creates an entirely different cause of action from the state
claims in the complaint. See DiFelice v. Aetna U.S.
Healthcare, 346 F.3d 442, 452–53 (3d Cir. 2003). 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 of action, so too willful
misconduct under the PREP Act is an independent cause of
action. See Restatement (Second) of Torts § 519 cmt. d (Am.
L. Inst. 1977).

Nevertheless, we must look beyond the estates’ claims.
The question is whether the estates’ allegations fall within the
scope of the PREP Act’s cause of action—“that is, whether the
claims could have been brought under that section.” DiFelice,
346 F.3d at 446 (emphasis added). But nowhere in their
complaints do the estates allege or imply that the nursing
homes acted “intentionally to achieve a wrongful purpose.” 42
U.S.C. § 247d-6d(c)(1)(A)(i). Neither do they claim that the
nursing homes acted “knowingly without legal or factual
justification.” Id. § 247d-6d(c)(1)(A)(ii). The closest the
estates come to a willful-misconduct allegation is their request

29
for punitive damages.12 Employing standard language for a
punitive-damages request, the estates allege the nursing homes
engaged in “conduct that was grossly reckless, willful, and
wanton.” App. 120; App. 176. But we cannot infer from that
fleeting statement that the estates allege the nursing homes
acted with intent “to achieve a wrongful purpose,” or with
knowledge that their actions lacked “legal or factual
justification.” 42 U.S.C. § 247d-6d(c)(1)(A). Thus, the estates
could not have brought their claims under § 247d-6d(d)(1) of
the PREP Act. See DiFelice, 346 F.3d at 446.

C

We address one more argument concerning complete
preemption. The nursing homes argue that the PREP Act’s
compensation fund—not just the willful-misconduct cause of
action—completely preempts the estates’ negligence claims.
That argument is even less plausible.

12
Under New Jersey law, an independent count for punitive
damages may not be cognizable. See N.J. Stat. Ann. § 2A:15-
5.13 (1995); In re Est. of Stockdale, 953 A.2d 454, 473 (N.J.
2008); Giordano v. Solvay Specialty Polymers USA, LLC, No.
19-cv-21573, 2021 WL 754044, at *9 (D.N.J. Feb. 26, 2021).
The PREP Act conveys exclusive jurisdiction over “cause[s]
of action” based on willful misconduct. 42 U.S.C. § 247d-
6d(d)(1). We are thus skeptical that allegations in support of a
request for punitive damages can fall under the PREP Act’s
exclusive jurisdiction. Even assuming they could, our decision
here rests on our conclusion that the estates’ allegations in
support of punitive damages do not amount to a claim of willful
misconduct under the PREP Act.

30
 The compensation fund is not a cause of action. The
nursing homes argue that the compensation fund is nonetheless
a civil-enforcement provision “exclusive of any other civil
action or proceeding.” 42 U.S.C. § 247d-6e(d)(4). To be sure,
the Supreme Court has occasionally asked whether Congress
created an exclusive civil-enforcement provision that displaces
the state-law claims. Compare Metro. Life Ins., 481 U.S. at 66,
with Beneficial Nat’l Bank, 539 U.S. at 10. Arguably, the
compensation fund could be a civil-enforcement provision
even if it is not a cause of action. But here we need not ponder
the differences between a civil-enforcement provision and a
cause of action. For our purposes, it is enough that neither the
Supreme Court nor any circuit court has extended complete
preemption to a statute because it created a compensation fund.
The three completely preemptive statutes recognized by the
Supreme Court all create civil causes of action that may be
pursued in any federal court. See 12 U.S.C. § 86; 29 U.S.C.
§§ 185(a), 1132(a)(1)(B). We will not presume that Congress,
in creating an administrative remedy, intended to make state-
law negligence claims removable to federal court.

The Second Circuit confronted a similar case. In 2001,
Congress passed the Air Transportation Safety and System
Stabilization Act (“ATSSSA”), 49 U.S.C. § 40101 note.
ATSSSA created a compensation fund for claims resulting
from the terrorist attacks of September 11, 2011. Id. (ATSSSA
§ 405). It also created a federal cause of action for damages
arising out of the attacks. Id. (ATSSSA § 408(b)). The Second
Circuit held that the cause of action completely preempted
state-law claims arising out of the attacks. In re WTC Disaster
Site, 414 F.3d 352, 380 (2d Cir. 2005). The court found the
statutory language unambiguous: “There shall exist a Federal
cause of action for damages arising out of the hijacking and

31
subsequent crashes of [the September 11 flights] . . . [and] this
cause of action shall be the exclusive remedy for damages
arising out of the hijacking and subsequent crashes of such
flights.” 49 U.S.C. § 40101 note (ATSSSA § 408(b)(1))
(emphasis added); see WTC Disaster Site, 414 F.3d at 375–76.
The court distinguished the cause of action from the
compensation fund, in part because of the breadth of the cause
of action. See WTC Disaster Site, 414 F.3d at 375–76.

The Second Circuit’s opinion is instructive here for
several reasons. First, both the PREP Act and ATSSSA
explicitly create an “exclusive” federal cause of action. 42
U.S.C. § 247d-6d(d)(1); 49 U.S.C. § 40101 note (ATSSSA
§ 408(b)(1)). Congress’s clear language in “establishing an
exclusive federal remedy undeniably bespeak[s] an intent to
displace state-law remedies entirely for such damages claims.”
WTC Disaster Site, 414 F.3d at 375. Second, like the Second
Circuit, we see a clear difference between the preemptive effect
of an exclusive cause of action and the preemptive effect of a
compensation fund. See id. at 375–76. The key distinction
between our case and the Second Circuit case is in the third
point. Unlike the PREP Act, ATSSSA creates a general
“remedy for damages.” 49 U.S.C. § 40101 note (ATSSSA
§ 408(b)(1)). The PREP Act, in contrast, enumerates the
elements of a specific cause action for willful misconduct.
Naturally, a cause of action for “damages” will envelop far
more state-law claims than will a narrow, specific cause of
action for willful misconduct. Given the narrowness of the
PREP Act’s cause of action, it is unsurprising that we reach a
different conclusion applying the PREP Act than the Second
Circuit reached applying ATSSSA.

We conclude this section with a note on the limits of our
holding. We do not hold that all state-law causes of action are

32
invulnerable to complete preemption under the PREP Act.
Conceivably, some state-law claims could fall within
Congress’s narrow cause of action for willful misconduct. We
also do not address whether the PREP Act preempts the
estates’ claims under ordinary preemption rules. That is for the
state court to determine on remand. We hold only that (1) the
estates’ negligence claims based on New Jersey law do not fall
under the PREP Act’s narrow cause of action for willful
misconduct, and (2) the PREP Act’s compensation fund is not
an exclusive federal cause of action triggering removal
jurisdiction.

VI

Finally, the nursing homes argue that the estates’ claims
raise a substantial federal issue that permits removal under 28
U.S.C. § 1441(a). Like complete preemption, this argument
relies on the jurisdiction of federal courts to decide federal
questions. To remove a case under federal-question
jurisdiction, a defendant must show that the case “aris[es]
under” federal law. 28 U.S.C. § 1331; see also id. § 1441(a).
Typically, “a case arises under federal law when federal law
creates the cause of action asserted.” Gunn v. Minton, 568 U.S.
251, 257 (2013). As we have discussed, the estates do not assert
a federal cause of action. Nevertheless, a small number of state
claims may arise under federal law if they raise “significant
federal issues.” Grable & Sons Metal Prod., Inc. v. Darue
Eng’g & Mfg., 545 U.S. 308, 312 (2005).

The Grable test has four parts. The federal issue must
be “(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, 568 U.S. at 258. If the federal issue meets

33
all four requirements, federal jurisdiction is proper. Id. The
nursing homes argue that PREP Act immunity is a significant
federal issue that passes the Grable test. But a PREP Act
preemption defense is not “necessarily raised” by a well-
pleaded state-law negligence complaint, so their argument fails
at Grable’s first step.

“Federal preemption is ordinarily a federal defense to
the plaintiff’s suit. As a defense, it does not appear on the face
of a well-pleaded complaint, and, therefore, does not authorize
removal to federal court.” Metro. Life Ins. Co., 481 U.S. at 63.
Here, the nursing homes “would at best be entitled to a
preemption defense” under the PREP Act. Manning v. Merrill
Lynch Pierce Fenner & Smith, Inc., 772 F.3d 158, 165 (3d Cir.
2014), aff’d, 578 U.S. 901 (2016). The estates would properly
plead their state-law negligence claims without mentioning the
PREP Act, so the PREP Act is not “an essential element of the
plaintiff[s’] state law claim.” Id. at 163. We therefore lack
federal-question jurisdiction under Grable.

* * *

Federal courts have limited jurisdiction. We may decide
only cases or controversies that the Constitution and Congress
say we may decide. Here, the estates of the deceased filed
wrongful-death lawsuits against the nursing homes. They filed
in state court and asserted only garden-variety state-law claims,
so state court is where these cases belong. We will affirm the
order of the District Court.

34