By Y. Peter Kang

Law360 (May 20, 2021, 8:59 PM EDT ) A Southern California nursing home being sued over a 77-year-old resident's COVID-19 death has asked the Ninth Circuit to keep the case in federal court because it was acting under the federal government's authority designating it as critical infrastructure.

Glenhaven Healthcare LLC lodged a brief on Wednesday telling the Ninth Circuit it should be permitted to invoke the Federal Officer Removal Statute, which allows certain cases to be removed from state to federal court if a federal officer or agency, or an entity working under a federal officer, is involved.

The suit filed by the family of Ricardo Saldana — alleging staff at the Glenhaven nursing home were prohibited from wearing protective gear, which caused Saldana and nine other patients to become infected and die — was initially filed in California state court in May 2020 and later removed to federal court by Glenhaven in June.

A California federal judge in October rejected Glenhaven's bid to keep the case in federal court and the company filed a Ninth Circuit appeal the following month, according to court records.

Glenhaven said Wednesday the federal government's designation of nursing homes as critical infrastructure shortly after the start of the coronavirus pandemic caused a "clear and sudden paradigm shift" for the regulation of nursing facilities.

"Federal authorities have explicitly guided operational decisions related to the clinical pandemic response in skilled nursing facilities," the company said. "When the federal government instructs private parties on how to carry on their business during a national emergency it is enlisting those parties to carry out the duty of the government itself to ensure the continued provision of 'services critical to maintaining the national defense, continuity of government, economic prosperity, and quality of life in the United States.'"

While the family had argued that if federal officer jurisdiction applies then all coronavirus-related claims against companies adhering to the Centers for Disease Control and Prevention guidelines would belong in federal court, Glenhaven said this "imaginary threat" doesn't exist because nursing homes are unique compared to airlines and other industries.

"Nursing facilities have a different role to play than do amusement parks, airlines or homeless shelters," it said. "They bear a critical infrastructure designation, are closely and extensively monitored, and were allocated additional funding under the [Coronavirus Aid, Relief and Economic Security Act] and additional resources to address the need for critical supplies to continue operations in accordance with CDC guidance."

In addition, Glenhaven said because it is mounting an affirmative defense that the family's claims are preempted by the federal Public Readiness and Protection Act, or PREP Act, which confers immunity to "covered persons" who deploy "countermeasures" during a public health emergency, the case should be heard in federal court.

"The merits of Glenhaven's claim that the PREP Act is a complete preemption statute must be addressed and once again compels the conclusion that federal question jurisdiction exists," Glenhaven's brief stated. "The PREP Act completely encompasses plaintiffs' claims."

An attorney for the family, Adam Pulver, blasted Glenhaven's contention that it was acting under the authority of the federal government.

"Glenhaven's argument that Mr. Saldana's death was connected to directions of the federal government is not only wrong, but offensive to his memory," he said. "Glenhaven continues to ignore literally dozens of decisions issued by district judges around the country, explaining why its arguments as to the scope of the PREP Act are not supported by the text of the statute, and why the musings of administrative agencies on federal court jurisdiction do not bind federal courts."

The family is represented by Scott C. Glovsky and Ari Dybnis of the Law Offices of Scott Glovsky APC and Adam R. Pulver of Public Citizen.

The nursing home is represented by Lann G. McIntyre, Kathleen M. Walker and Lynnette A. Christopoulos of Lewis Brisbois Bisgaard & Smith LLP.

The case is Jackie Saldana et al. v. Glenhaven Healthcare LLC et al., case number 20-56194, in the U.S. Court of Appeals for the Ninth Circuit.

--Editing by Janice Carter Brown.

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