Third, Eighth, and Ninth Circuits to Address Jurisdiction for COVID-19-Related Injury and Wrongful Death Cases

Third, Eighth, and Ninth Circuits to Address Jurisdiction for COVID-19-Related Injury and Wrongful Death CasesThree federal appellate courts are set to address whether COVID-19-related injury and wrongful death litigation belong in state courts where the cases originated or in federal courts under the Federal Officer Removal Statute.

Third Circuit

In June, a Third Circuit panel heard arguments in a pair of cases where two New Jersey nursing homes accused of failing to protect patients from COVID-19 are seeking to have the cases adjudicated in federal court, arguing that their facilities “were acting under and in assistance to the federal government.”

The hearing came on appeal of a district court ruling that sent the matters back to state court after the nursing homes had them removed to New Jersey federal courts. The district court found that federal officer jurisdiction did not apply, rejecting the defendants’ arguments that the federal Public Readiness and Emergency Preparedness Act (PREP) preempted plaintiffs’ claims and therefore belong in federal court.

Eighth Circuit

Oral arguments before the Eighth Circuit are set for this fall in Hus Buljic et al. v. Tyson Foods Inc. et al., a suit lodged by the relatives of four deceased workers in which they claim Tyson knowingly risked the health of its Waterloo, Iowa, meat processing plant employees during the early stages of the COVID-19 pandemic, leading to more than 1,000 infections and at least five deaths.

Originally filed in state court, the suit was removed to federal court by Tyson. An Iowa federal judge later ordered the case returned to state court, leading to Tyson’s appeal to the Eighth Circuit.

Tyson claims the suit belongs in federal court since the company was effectively acting as a federal officer after then-President Trump’s April 2020 executive order designated meatpacking plants as critical infrastructure under the Defense Production Act. 

Ninth Circuit

A California nursing home has asked the Ninth Circuit to keep a case that alleges the nursing home caused the deaths of 10 patients by prohibiting their staff from wearing protective gear during the COVID-19 pandemic in federal court. The case is on appeal after a California federal judge moved the case back to state court.

In its May 2021 brief, Glenhaven Healthcare LLC claims that because nursing homes were designated as critical infrastructure by the federal government during the pandemic, federal officer jurisdiction applies. 

“Federal authorities have explicitly guided operational decisions related to the clinical pandemic response in skilled nursing facilities,” Glenhaven said in its brief. “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.'”

The case is Jackie Saldana et al. v. Glenhaven Healthcare LLC et al.; it is still being considered for oral argument by the Ninth Circuit.

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