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[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 21-14494 ____________________ MATT HOLMAN, Administrator of the Estate of Edna Diane Holman, deceased, Plaintiff-Appellee, versus KNOLLWOOD NURSING HOME, LLC, STACIE MROCZKO, Therapy Director, LESLIE MCDUFFIE, Business Office Manager,

Defendants-Appellants, USCA11 Case: 21-14494 Document: 61-1 Date Filed: 01/10/2025 Page: 2 of 9

2 Opinion of the Court 21-14494 KNOLLWOOD HEALTHCARE, LLC,

Defendant.

____________________ Appeal from the United States District Court for the Southern District of Alabama D.C. Docket No. 1:21-cv-00130-KD-N ____________________ Before NEWSOM, LUCK, and TJOFLAT, Circuit Judges.

PER CURIAM: This appeal presents the question whether the federal courts have subject matter jurisdiction over a state-law tort suit arising out of the death of a nursing-home patient during the COVID-19 pandemic. The defendants point to three possible bases for subject matter jurisdiction: complete preemption, the embedded-federal- question doctrine, and federal-officer removal. But our recent de- cision in Schleider v. GVDB Operations, LLC, 121 F.4th 149 (11th Cir. 2024), forecloses all three. Accordingly, the district court’s order remanding the case to state court is AFFIRMED.

I In mid-2020, at the height of the pandemic, Edna Holman contracted COVID-19 and died. She had been a resident of a reha- bilitation facility in Mobile, Alabama called Knollwood Nursing USCA11 Case: 21-14494 Document: 61-1 Date Filed: 01/10/2025 Page: 3 of 9

21-14494 Opinion of the Court 3 Home. According to the administrator of her estate, Holman con- tracted the disease after the nursing home put another patient, who was already suffering from COVID-19, into Holman’s room.

This lawsuit started in the Circuit Court of Mobile County, Alabama. Matt Holman—the estate administrator—sued Knoll- wood Nursing Home, LLC,1 two nursing-home staff members, and several other entities. The complaint included various state- law tort claims alleging negligence and wrongful death; it expressly disclaimed the presence of any federal question. It alleged that Edna Holman had been a resident of Alabama at the time of her death and that the two staff members were residents of Alabama.

Knollwood removed the case to the United States District Court for the Southern District of Alabama. It asserted that the district court possessed jurisdiction based on “(i) express jurisdic- tional preemption; (ii) Grable doctrine jurisdictional preemption; and (iii) Federal officer jurisdiction.” Holman moved to remand to state court, insisting that the suit’s “causes of action are brought under the Wrongful Death Statute of the State of Alabama and the Common Law.” A magistrate judge recommended that Holman’s motion for remand be granted, and the district court agreed.

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Knollwood and the staff members rely heavily on the Public Readiness and Emergency Preparedness Act, 42 U.S.C. §§ 247d-6d, 247d-6e, known as the PREP Act. The PREP Act authorizes the Secretary of Health and Human Services to “make a declaration” that recommends “the manufacture, testing, development, admin- istration, or use of one or more covered countermeasures.” Id. § 247d-6d(b)(1). Early in the pandemic, the Secretary issued one of these declarations, identifying certain “covered countermeasures”

Scimone v. Carnival Corp., 720 F.3d 876, 880 (11th Cir. 2013). Ordinarily, we cannot review on appeal an order remanding a case to state court for lack of subject matter jurisdiction. 28 U.S.C. § 1447(d); see Vachon v. Travelers Home & Marine Ins. Co., 20 F.4th 1343, 1346–47 (11th Cir. 2021). But here, one of the defendants’ asserted grounds for removal is the federal-officer removal statute, 28 U.S.C. § 1442. So, “the whole of” the district court’s order is now “review- able on appeal.” BP P.L.C. v. Mayor & City Council of Baltimore, 593 U.S. 230, 238 (2021).

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21-14494 Opinion of the Court 5 that could be used to respond to COVID-19. See Declaration Under the PREP Act for Medical Countermeasures Against COVID-19, 85 Fed. Reg. 15198 (Mar. 17, 2020). Several amendments followed in subsequent months. E.g., Fourth Amendment to the Declaration, 85 Fed. Reg. 79190 (Dec. 3, 2020).

On appeal, Knollwood and the staff members offer several theories for why federal subject matter jurisdiction exists. They do not argue that the requirements of ordinary diversity jurisdiction are satisfied. See 28 U.S.C. § 1332. 3 Instead, they connect three spe- cial jurisdictional doctrines with the PREP Act. First, they argue that Holman’s state-law claims are completely preempted by the PREP Act because Holman’s allegations are related to the admin- istration or use of countermeasures identified in the Secretary’s declarations. Second, they argue that the embedded-federal-ques- tion doctrine described in Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308 (2005), applies because the suit involves substantial federal issues that are related to the PREP Act. And third, they argue that the suit is covered by the federal-officer removal statute, 28 U.S.C. § 1442(a)(1), because, during the pandemic, Knollwood was a PREP Act program planner acting under a federal agency or officer.

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Indeed, so close does this case hew to Schleider that, in supple- mental briefing, Knollwood and the staff members were unable to identify a single thing that might distinguish their arguments from those repudiated in Schleider. Instead, they relied entirely on the unrealized hope that the en banc court might vacate Schleider and decide the issues differently. We now briefly explain why Schleider rules out all three jurisdictional proposals.

First, complete preemption. Preemption ordinarily does not authorize removal, but complete preemption “is a narrowly drawn jurisdictional rule for assessing federal removal jurisdiction when a complaint purports to raise only state law claims.” Schleider, 121 F.4th at 160 (citation and quotation marks omitted). “Complete preemption occurs when a federal statute both preempts state sub- stantive law and provides the exclusive cause of action for the claim asserted.” Id. (citation and quotation marks omitted). Knollwood and the staff members argue that the PREP Act meets this standard with respect to state-law claims related to COVID-19 countermeas- ures. In Schleider, though, we held that the PREP Act “does not create a general cause of action that would completely preempt all state law claims related to COVID-19 and countermeasures taken, or not taken, to prevent the virus’s spread.” Id. at 161. The PREP Act does provide for exclusive federal jurisdiction over certain will- ful misconduct tort suits related to the use of countermeasures. See id. at 161–63; 42 U.S.C. § 247d-6d(c), (d)(1). Here, though, USCA11 Case: 21-14494 Document: 61-1 Date Filed: 01/10/2025 Page: 7 of 9

21-14494 Opinion of the Court 7 Holman’s state law claims are for negligence and wrongful death.

The complaint does not appear to allege willful misconduct, and Knollwood and the staff members do not suggest otherwise. Cf. Schleider, 121 F.4th at 165 (concluding that the PREP Act’s willful misconduct cause of action did not completely preempt a Florida- law wrongful death claim). Thus, as in Schleider, there’s no com- plete preemption. 4 Second, the Grable embedded-federal-question doctrine.

Under that doctrine, “federal jurisdiction over a state law claim will lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court with- out disrupting the federal-state balance approved by Congress.”

Gunn v. Minton, 568 U.S. 251, 258 (2013) (citing Grable, 545 U.S. at 313–14). Knollwood and the staff members say that Grable applies because the PREP Act, the Department of Health and Human Ser- vices’ declarations, and Congress’s “belie[f] [that] pandemics raise matters of national public health, national critical infrastructure, and national security,” all show that this lawsuit involves “substan- tial federal questions.” This understanding of Grable is at odds with Knollwood and the staff members suggest, as if it were completely independ- ent from their complete-preemption argument, that under the PREP Act the United States District Court for the District of Columbia has exclusive federal jurisdiction over this lawsuit. True, the PREP Act does provide for exclusive jurisdiction in that court for the Act’s willful-misconduct cause of action. 42 U.S.C. § 247d‑6d(e)(1). But, as just explained, Holman’s lawsuit doesn’t make willful misconduct claims—something Knollwood and the staff members don’t dispute. So, the lawsuit couldn’t possibly fall under the PREP Act’s grant of exclusive jurisdiction to the District Court for the District of Columbia.

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Third, federal-officer removal. A private entity may “re- move a case under § 1442(a)(1)” if it can show that it: “(1) is a per- son within the meaning of the statute who acted under a federal officer; (2) performed the actions for which it is being sued under color of federal office; and (3) raised a colorable federal defense.”

Schleider, 121 F.4th at 158 (alteration accepted) (citation and quota- tion marks omitted). As in Schleider, here “the ‘acted under a fed- eral officer’ prong is dispositive.” Id. Knollwood and the staff members maintain that they were acting under a federal officer be- cause, throughout the pandemic, various federal agencies gave them “specific direction and controlling enforcement.” But “[a] private firm’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.’” Id. at 159 (citation and quotation marks omitted). Just like in Schleider, Knoll- wood was simply operating an “assisted living facility that may, or may not, have complied with federal recommendations and regu- lations concerning COVID-19.” Id. at 160. Therefore, the federal officer removal statute does not supply us with jurisdiction.

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21-14494 Opinion of the Court 9 Because neither complete preemption, nor Grable, nor fed- eral-officer removal applies, this remains a state-law tort suit be- tween non-diverse parties over which the federal courts have no jurisdiction. See Caterpillar Inc., 482 U.S. at 392. 5 III For the foregoing reasons, we AFFIRM the district court’s order remanding this suit to state court.