Solomon v. St. Joseph Hosp.

21-2729
Solomon v. St. Joseph Hosp.

United States Court of Appeals
for the Second Circuit

August Term 2021
Submitted: June 15, 2022
Decided: March 7, 2023

No. 21-2729

ZACHARY SOLOMON,

Plaintiff-Appellee,
v.
ST. JOSEPH HOSPITAL,
CATHOLIC HEALTH SYSTEM OF LONG ISLAND, INC.,
Defendants-Appellants.

On Appeal from the United States District Court
for the Eastern District of New York

Before: LIVINGSTON, Chief Judge, and CABRANES and PARK, Circuit
Judges.

Plaintiff Zachary Solomon sued Defendants St. Joseph Hospital
and Catholic Health System of Long Island, Inc. for injuries he
sustained at St. Joseph Hospital, where he was admitted in March
2020 with COVID-19. Solomon brought claims for malpractice,
negligence, and gross negligence in New York state court.
Defendants removed the case to the United States District Court for
the Eastern District of New York and moved to dismiss for lack of
subject-matter jurisdiction. Defendants asserted state and federal
immunities under the Emergency or Disaster Treatment Protection
Act (“EDTPA”), N.Y. Pub. Health Law §§ 3080-3082, and the Public
Readiness and Emergency Preparedness Act (“PREP Act”), 42 U.S.C.
§§ 247d-6d, 247d-6e. The district court (Block, J.) denied Defendants’
motion to dismiss.
We conclude that removal to federal court was improper
because the district court lacked jurisdiction to hear the case. First,
Solomon’s state-law claims are not completely preempted by the
PREP Act. Second, there is no jurisdiction under the federal-officer
removal statute because Defendants did not “act under” a federal
officer. Finally, Solomon’s claims do not “arise under” federal law.
We thus VACATE the district court’s order and REMAND with
directions to remand the case to state court.

Megan A. Lawless, Dylan Braverman, Charles K.
Faillace, Vigorito, Barker, Patterson, Nichols & Porter,
LLP, Garden City, NY, for Defendants-Appellants.

Adam R. Pulver, Allison M. Zieve, Scott L. Nelson, Public
Citizen Litigation Group, Washington, DC; Brett R.
Leitner, Leitner Varughese Warywoda PLLC, Melville,
NY, for Amicus Curiae Vivian Rivera-Zayas in Support of
Neither Party.

Timothy W. Hoover, Spencer L. Durland, Hoover &
Durland LLP, Buffalo, NY, for Court-Appointed Amicus
Curiae in Support of Neither Party.

Jeffrey S. Bucholtz, Alexander Kazam, King & Spalding
LLP, Washington, DC; Jennifer B. Dickey, Jordan L. Von
Bokern, U.S. Chamber Litigation Center, Washington,
DC; Chad Golder, American Hospital Association,
Washington DC; Leonard A. Nelson, American Medical

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 Association, Chicago, IL, for Amici Curiae Chamber of
Commerce of the United States of America, American Hospital
Association, American Medical Association, and Medical
Society of the State of New York in Support of Defendants-
Appellants.

Henry M. Greenberg, Zackary Knaub, Julie A. Yedowitz,
Greenberg Traurig, LLP, Albany, NY, for Amici Curiae
Greater New York Hospital Association and Healthcare
Association of New York State, Inc. in Support of Defendants-
Appellants.

PARK, Circuit Judge:

Plaintiff Zachary Solomon sued Defendants St. Joseph Hospital
and Catholic Health System of Long Island, Inc. for injuries he
sustained at St. Joseph Hospital, where he was admitted in March
2020 with COVID-19. Solomon brought claims for malpractice,
negligence, and gross negligence in New York state court.
Defendants removed the case to the United States District Court for
the Eastern District of New York and moved to dismiss for lack of
subject-matter jurisdiction. Defendants asserted state and federal
immunities under the Emergency or Disaster Treatment Protection
Act (“EDTPA”), N.Y. Pub. Health Law §§ 3080-3082, and the Public
Readiness and Emergency Preparedness Act (“PREP Act”), 42 U.S.C.
§§ 247d-6d, 247d-6e. The district court (Block, J.) denied Defendants’
motion to dismiss.

We conclude that removal to federal court was improper
because the district court lacked jurisdiction to hear the case. First,
Solomon’s state-law claims are not completely preempted by the
PREP Act. Second, there is no jurisdiction under the federal-officer

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removal statute because Defendants did not “act under” a federal
officer. Finally, Solomon’s claims do not “arise under” federal law.
We thus vacate the district court’s order and remand with directions
to remand the case to state court.

I. BACKGROUND
A. Statutory Scheme

The 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. 42 U.S.C.
§ 247d-6d(a)(1). The PREP Act gives the Secretary of the Department
of Health and Human Services (“HHS Secretary”) authority to
publish a declaration that (1) announces a disease or health condition
is a public emergency and (2) defines appropriate covered
countermeasures. Id. § 247d-6d(b)(1).

Effective February 4, 2020, the HHS Secretary declared
“COVID-19 . . . a public health emergency” and defined “covered
countermeasures” as any “antiviral, drug, biologic, diagnostic,
device, or 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. 15198, 15198-01
(Mar. 17, 2020).

The PREP Act contains one exception to immunity for claims
“for death or serious physical injury proximately caused by willful
misconduct.” 42 U.S.C. § 247d-6d(d)(1). Willful misconduct is
defined as “an act or omission that is taken (i) intentionally to achieve

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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 PREP Act grants exclusive
federal jurisdiction over such claims to the United States District
Court for the District of Columbia. Id. § 247d-6d(e)(1). For all other
claims, the PREP Act establishes a Covered Countermeasure Process
Fund to compensate “eligible individuals for covered injuries directly
caused by the administration or use of a covered countermeasure
pursuant to such declaration.” Id. § 247d-6e(a).

B. Procedural History

Solomon was admitted to St. Joseph Hospital on March 23,
2020, after testing positive for COVID-19 and exhibiting severe
shortness of breath and a high fever. Soon after his admission,
Solomon was intubated for ten days, during which time he developed
severe pressure sores.

Solomon sued St. Joseph Hospital and its operator, Catholic
Health System of Long Island, Inc., in the Supreme Court of the State
of New York for the County of Nassau. Solomon alleged state-law
causes of action for malpractice, negligence, and gross negligence.
Defendants removed the case to the United States District Court for
the Eastern District of New York. Defendants argued that federal
jurisdiction was proper because: (1) the PREP Act preempted state
law, (2) the federal-officer removal statute permitted removal, and
(3) the case implicated substantial federal issues. Solomon did not
object to removal.

Defendants then moved to dismiss under Rule 12(b)(1) and
12(b)(6) of the Federal Rules of Civil Procedure, arguing that they

5
were immune from liability under both state and federal law based
on the EDTPA and PREP Act. As to immunity under the PREP Act,
Defendants argued that Solomon developed pressure sores because
he could not be rotated after being placed on a ventilator to treat
COVID-19 so his injuries are “inextricably intertwined with the use of
a covered countermeasure.” Appellants’ Br. at 26. Defendants also
argued that they were immune from liability under the EDTPA
because, at the time of Solomon’s hospitalization, the EDTPA
immunized health-care facilities from liability from many claims
resulting from health-care decisions made “in response to or as a
result of” COVID-19. N.Y. Pub. Health Law § 3082(1)(b). Solomon
opposed Defendants’ motion but did not address whether federal
jurisdiction was proper.

The district court denied Defendants’ motion to dismiss. First,
the district court found that Solomon’s claims did not fall within the
immunity provision of the PREP Act. The court reasoned that
“Solomon’s claims derive from a common type of hospital-acquired
injury that results from not being rotated while stationary.” App’x at
A-72. The district court concluded that Defendants were not entitled
to PREP Act immunity merely because Solomon was also being
“treated for COVID-19 with a ventilator during the period that he
acquired” his injury. Id. Second, the district court found that
Defendants were not entitled to EDTPA immunity because they failed
to show “that Solomon’s pressure injury directly resulted from
decisions or activities in response to or as a result of the COVID-19
outbreak.” Id. at A-76. In addition, the district court found that
Solomon sufficiently pleaded a claim for gross negligence, which is a
type of claim exempt from EDTPA immunity. N.Y. Pub. Health Law
§ 3082(2).

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 Defendants timely appealed. They argue that an immediate
appeal is proper under the collateral-order doctrine because the
district court denied them immunity from suit.

Solomon did not object to removal below or offer any
opposition to Defendants’ arguments on appeal. We appointed
amicus curiae to brief whether we have appellate jurisdiction over the
district court’s order denying Defendants’ motion to dismiss and
whether the district court had subject-matter jurisdiction to hear the
case below. On January 19, 2023, amicus provided briefing arguing
that this Court has appellate jurisdiction to review whether federal
jurisdiction was proper and that the district court lacked subject-
matter jurisdiction over the case below. 1

II. DISCUSSION
Defendants argue that there is federal jurisdiction over this case
for three reasons. First, the PREP Act completely preempts Solomon’s
state-law claims. Second, Defendants were subject to federal
regulations, bringing them under the federal-officer removal statute.
Finally, Solomon’s claims arise under federal law.

We have appellate jurisdiction to determine whether the
district court had jurisdiction below. See Arizonans for Off. Eng. v.
Arizona, 520 U.S. 43, 73 (1997) (“When the lower federal court lacks
jurisdiction, we have jurisdiction on appeal, not of the merits but
merely for the purpose of correcting the error of the lower court in
entertaining the suit.” (cleaned up)); In re Methyl Tertiary Butyl Ether
Prods. Liab. Litig., 488 F.3d 112, 121 (2d Cir. 2007) (“We conclude that

1 We thank Hoover & Durland LLP for serving as court-appointed
amicus curiae.

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review of [whether we have subject-matter jurisdiction] is required
pursuant to our independent obligation to satisfy ourselves of the
jurisdiction of this court and the court below.”). As a result, we need
not decide whether Defendants’ interlocutory appeal is proper under
the collateral-order doctrine. Solomon did not object to removal, but
“[t]his court may sua sponte delve into the issue of whether there is a
factual basis to support subject-matter jurisdiction.” Platinum-
Montaur Life Scis., LLC v. Navidea Biopharmaceuticals, Inc., 943 F.3d 613,
616 (2d Cir. 2019) (cleaned up). We review questions of subject-matter
jurisdiction de novo. Id.

A. Complete Preemption

Defendants first argue that federal jurisdiction is proper under
the doctrine of complete preemption. We disagree. The PREP Act
permits only one federal cause of action (for willful misconduct), and
Solomon’s claims do not fall within its narrow scope.

1. Legal Principles

Under 28 U.S.C. § 1441, a state-court defendant may remove a
civil action to federal court if the action could have been filed in
federal court in the first place. When, as here, there is no “diversity
of citizenship, federal-question jurisdiction is required.” Caterpillar
Inc. v. Williams, 482 U.S. 386, 392 (1987). “The presence or absence of
federal-question jurisdiction is governed by the ‘well-pleaded
complaint rule,’ which provides that federal jurisdiction exists only
when a federal question is presented on the face of the plaintiff’s
properly pleaded complaint.” Id. “[A] case may not be removed to

8
federal court on the basis of a federal defense, including the defense
of pre-emption.” Id. at 393.

“The complete preemption doctrine is an exception to the well-
pleaded complaint rule.” Whitehurst v. 1199SEIU United Healthcare
Workers E., 928 F.3d 201, 206 (2d Cir. 2019). Complete preemption
occurs when a federal statute preempts and replaces all state-law
causes of action so “a claim which comes within the scope of that
[federal] cause of action, even if pleaded in terms of state law, is in
reality based on federal law.” In re WTC Disaster Site, 414 F.3d 352,
372 (2d Cir. 2005). In those cases, “the pre-emptive force of a statute
is so ‘extraordinary’ that it ‘converts an ordinary state common-law
complaint into one stating a federal claim for purposes of the well-
pleaded complaint rule.’” Caterpillar, 482 U.S. at 393 (quoting Metro.
Life Ins. Co. v. Taylor, 481 U.S. 58, 65 (1987)); accord Sullivan v. Am.
Airlines, Inc., 424 F.3d 267, 272 (2d Cir. 2005). “When a plaintiff raises
such a completely preempted state-law claim in his complaint, a court
is obligated to construe the complaint as raising a federal claim and
therefore ‘arising under’ federal law.” Sullivan, 424 F.3d at 272. 2

2 Complete preemption is rare. The Supreme Court has identified
only three instances of complete preemption: Section 301 of the Labor
Management Relations Act, see Avco Corp. v. Aero Lodge No. 735, 390 U.S.
557, 558–62 (1968); Section 502(a)(1)(B) of the Employee Retirement Income
Security Act (“ERISA”), see Metro. Life Ins. Co., 481 U.S. at 65–66; and
Sections 85 and 86 of the National Bank Act, see Beneficial Nat'l Bank v.
Anderson, 539 U.S. 1, 7–11, (2003). We have identified two other instances:
Section 408 of the Air Transportation Safety and System Stabilization Act,
see In re WTC Disaster Site, 414 F.3d at 375–76; and Section 301 of the
Copyright Act, see Briarpatch Ltd. v. Phoenix Pictures, Inc., 373 F.3d 296, 305
(2d Cir. 2004).

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 2. Application

Solomon’s state-law claims for malpractice, negligence, and
gross negligence do not fall within the scope of the PREP Act’s
exclusive federal cause of action for willful misconduct. As a result,
his claims cannot be removed to federal court under the complete
preemption doctrine.

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.” Briarpatch, 373 F.3d at 305. Once this is established, the
question becomes whether Solomon’s state-law claims are “within the
scope” of the federal cause of action. Aetna Health Inc. v. Davila, 542
U.S. 200, 209 (2004); see also Beneficial Nat'l Bank v. Anderson, 539 U.S.
1, 8 (2003) (“When the federal statute completely pre-empts the state-
law cause of action, a claim which comes within the scope of that cause of
action, even if pleaded in terms of state law, is in reality based on
federal law.” (emphasis added)). If so, the state-law claims are
completely preempted.

The PREP Act’s cause of action for willful misconduct is
unambiguously “an exclusive Federal cause of action.” 42 U.S.C.
§ 247d-6d(d)(1). And like other complete preemption statutes, the
PREP Act not only provides an “exclusive cause of action for the claim
asserted,” but also “set[s] forth procedures and remedies governing
that cause of action.” Beneficial Nat’l Bank, 539 U.S. at 8; see 42 U.S.C.
§ 247d-6d(e). The PREP Act further provides a specific preemption
provision applicable to certain state laws that conflict with the Act.
See 42 U.S.C. § 247d-6d(b)(8).

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 Solomon’s state-law claims are not completely preempted.
First, claims for medical malpractice, negligence, and gross
negligence are plainly not “within the scope” of willful misconduct.
Negligence 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.” 42
U.S.C. § 247d-6d(c)(1)(B) (emphasis added). 3 Similarly, under New
York law, medical malpractice requires only a deviation from the
community standards of practice that proximately caused the injuries.
See Dixon v. Chang, 163 A.D.3d 525, 526 (2d Dep’t 2018). This standard
is more relaxed than the showing required for willful misconduct,
which is an act or omission 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.” 42 U.S.C. § 247d-6d(c)(1)(A).

Second, the PREP Act does not create any other exclusive
federal cause of action that might encompass Solomon’s state-law
claims. Instead, the PREP Act principally creates an immunity
scheme. And immunity has no bearing on complete preemption,
which is a jurisdictional doctrine, not a preemption-defense doctrine. 4

3 Although the Supreme Court has instructed that our preemption
inquiry should not focus on the “particular label affixed to” a particular
claim, Davila, 542 U.S. at 214, this statutory language specifies that no form
of negligence can constitute willful misconduct.
4 State courts addressing immunity defenses under the PREP Act are
required to answer only whether the plaintiff’s claims fall within the PREP
Act’s immunity provision. See 42 U.S.C. § 247d-6d(a)(1). If the answer is
no, as the district court found, there is no federal law left to apply and the
case can proceed under state law. If the answer is yes, the immunity ends

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See Avco Corp., 390 U.S. at 561 (“[T]he breadth or narrowness of the
relief which may be granted under federal law . . . is a distinct
question from whether the court has jurisdiction over the parties and
the subject matter.”); see also Davila, 542 U.S. at 215–16 (holding that
the remedies available under ERISA were not an appropriate
consideration for the complete preemption analysis). The PREP Act
thus does not completely preempt Solomon’s state-law claims for
malpractice, negligence, or gross negligence. 5

This conclusion is in line with every other Court of Appeals that
has addressed the issue to date. See Hudak Est. of Koballa v. Elmcroft of
Sagamore Hills, 58 F.4th 845, 854–57 (6th Cir. 2023); Martin v. Petersen
Health Operations, LLC, 37 F.4th 1210, 1213–14 (7th Cir. 2022); Mitchell
v. Advanced HCS, L.L.C., 28 F.4th 580, 584–88 (5th Cir. 2022); Salanda v.
Glenhaven Healthcare LLC, 27 F.4th 679, 686–88 (9th Cir. 2022); Maglioli

the case, and litigants may either file a claim for willful misconduct in the
United States District Court for the District of Columbia, id. § 247d-6d(e)(1),
or seek relief from the compensation fund, id. § 247d-6e(a). The PREP Act’s
immunity provision thus governs whether state or federal law applies; it
does not—contrary to Defendants’ claims—independently confer federal
jurisdiction.
5 The PREP Act also creates a compensation fund for certain claims,
which can be sought through an administrative process. See 42 U.S.C.
§ 247d-6e(a). But the compensation fund is not itself an exclusive federal
cause of action because it does not create a cause of action that can be
litigated in federal court. Nothing about the compensation fund indicates
that Congress intended to grant exclusive federal jurisdiction over claims
subject to this administrative process. See Mitchell v. Advanced HCS, L.L.C.,
28 F.4th 580, 587 (5th Cir. 2022). “[N]either the Supreme Court nor any
circuit court has extended complete preemption to a statute because it
created a compensation fund.” Maglioli v. All. HC Holdings LLC, 16 F.4th
393, 412 (3d Cir. 2021).

12
v. All. HC Holdings LLC, 16 F.4th 393, 406–13 (3d Cir. 2021). It is also
consistent with the decisions of district courts within this Circuit. See
Aponte v. Our Lady of Consolation Nursing & Rehab. Care Ctr., No. 22-
cv-0018, 2022 WL 17851799, at *7 (E.D.N.Y. Dec. 22, 2022) (collecting
cases).

Defendants nonetheless argue that permitting plaintiffs to
“proceed in state court simply by declining to allege willfulness in
their complaints” would “frustrate the purpose of the PREP Act.”
Appellants’ Reply Br. at 10, 12. We disagree. The immunity provision
of the PREP Act would still apply to any such artfully pled
complaints, whether those complaints are brought in state or federal
court. Defendants are correct that the PREP Act demonstrates
Congress’s intent to “eliminate all other causes of action” for
immunized claims, id. at 14, but nothing in the PREP Act suggests that
Congress was attempting also to eliminate state-law causes of action
for non-immunized claims.

It is true that the HHS Secretary and Office of General Counsel
view the PREP Act as a complete preemption statute. See Fifth
Amendment to Declaration Under the PREP Act for Medical
Countermeasures Against COVID-19, 86 Fed. Reg. 7872-02, 7874 (Feb.
2, 2021) (“The plain language of the PREP Act makes clear that there
is complete preemption of state law.”); U.S. Dep’t Health & Hum.
Servs., Advisory Opinion 20-01 on the PREP Act Scope of Preemption
Provision (Jan. 8, 2021). But we do not defer to the agency’s
interpretation of an unambiguous statutory provision concerning the
scope of federal jurisdiction. See, e.g., Bechtel v. Competitive Techs., Inc.,
448 F.3d 469, 478 (2d Cir. 2006) (Leval, J., concurring); see also Smith v.
Berryhill, 139 S. Ct. 1765, 1778 (2019) (“[A]lthough agency

13
determinations within the scope of delegated authority are entitled to
deference, it is fundamental ‘that an agency may not bootstrap itself
into an area in which it has no jurisdiction.’” (quoting Adams Fruit Co.
v. Barrett, 494 U.S. 638, 650 (1990)).

B. Federal-Officer Removal

1. Legal Principles

Under the federal-officer removal statute, an action against
certain federal officers commenced in state court may be removed to
federal court. See 28 U.S.C. § 1442(a)(1). Private actors may invoke
jurisdiction under § 1442 if they are (1) persons, including
corporations, “who acted under a federal officer”; (2) “being sued for
an act taken under color of [federal] office”; and (3) “raise[] a
colorable federal defense.” Badilla v. Midwest Air Traffic Control Serv.,
Inc., 8 F.4th 105, 120 (2d Cir. 2021) (cleaned up). Although the words
“acting under” are broad, “broad language is not limitless.” Watson
v. Philip Morris Cos., Inc., 551 U.S. 142, 147 (2007). “[T]he private
person’s ‘acting under’ must involve an effort to assist, or to help carry
out, the duties or tasks of the federal superior” and “does not include
simply complying with the law.” Id. at 152.

2. Application

Defendants’ argument that they “act under” a federal officer
for purposes of the PREP Act is meritless.

First, Defendants do not “act under” a federal officer simply
because they operate in a heavily regulated industry. A private
company’s “compliance (or noncompliance) with federal laws, rules,
and regulations does not by itself fall within the scope of the statutory
phrase ‘acting under’ a federal ‘official.’ And that is so even if the

14
regulation is highly detailed and even if the private firm’s activities
are highly supervised and monitored.” Watson, 551 U.S. at 153.
Defendants may be subject to federal regulations and guidance
governing the care they provide (including in connection with
COVID-19), but that does not mean that they “act under” a federal
officer.

Second, Defendants’ role during the COVID-19 pandemic has
nothing to do with whether they were “acting under” a federal officer.
As other courts of appeals have held, “[i]t cannot be that the federal
government’s mere designation of an industry as important—or even
critical—is sufficient to federalize an entity’s operations and confer
federal jurisdiction.” Salanda, 27 F.4th at 685 (quoting Buljic v. Tyson
Foods, Inc., 22 F.4th 730, 740 (8th Cir. 2021)).

C. “Arising Under” Jurisdiction
1. Legal Principles

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) (cleaned up). “Where all four of these
requirements are met . . . [federal] jurisdiction is proper because there
is a ‘serious federal interest in claiming the advantages thought to be
inherent in a federal forum,’ which can be vindicated without
disrupting Congress’s intended division of labor between state and

15
federal courts.” Id. (quoting Grable & Sons Metal Prods., Inc. v. Darue
Eng'g & Mfg., 545 U.S. 308, 313–14 (2005)).

2. Application

Removal to federal court is not proper under federal “arising
under” jurisdiction because Solomon’s complaint does not
necessarily raise a federal issue.

To determine whether an issue is “necessarily raised” we
consider whether “a right or immunity created by the Constitution or
laws of the United States is an element, and an essential one, of the
plaintiff’s cause of action.” Tantaros v. Fox News Network, LLC, 12 F.4th
135, 141 (2d Cir. 2021) (cleaned up). Here, Solomon’s complaint raises
claims under New York law and does not, on its face, raise questions
of federal law. Although 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.” Id. at 141–42 (cleaned up). Defendants’ argument thus fails at
the first step. 6

6 Defendants’ reliance on Arbaugh v. Y&H Corp., 546 U.S. 500 (2006),
is misplaced. The Supreme Court in Arbaugh noted that a plaintiff properly
invokes federal jurisdiction under § 1331 when there is a “colorable claim”
under federal law, but not a “wholly insubstantial and frivolous” federal
claim that is “immaterial and made solely for the purpose of obtaining
jurisdiction.” Id. at 513 n.10 (cleaned up). Arbaugh does not hold that
federal courts have jurisdiction even when a plaintiff does not bring a federal
claim merely because the court speculates that the plaintiff could have done
so.

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 III. CONCLUSION
Defendants have failed to show that federal jurisdiction is
proper, so Solomon’s state-law claims must be litigated in state court.
We thus vacate the district court’s order and remand with directions
to remand this case to state court.

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