NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 21 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RACHELLE CRUPI, as Special No. 22-15413 Administrator, Personal Representative and heir on behalf of Aletha Porcaro, D.C. No. 2:21-cv-00954-GMN-DJA Plaintiff-Appellee,

v. MEMORANDUM*

HEIGHTS OF SUMMERLIN, LLC;

SUMMIT CARE, LLC; GENESIS

HEALTHCARE, INC.; LATOYA DAVIS;

ANDREW REESE,

Defendants-Appellants.

Appeal from the United States District Court for the District of Nevada Gloria M. Navarro, District Judge, Presiding

Submitted June 20, 2023**

Before: WALLACE, O’SCANNLAIN, and SILVERMAN, Circuit Judges.

Heights of Summerlin, LLC, Summit Care, LLC, Genesis Healthcare, Inc.,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Latoya Davis, and Andrew Reese (collectively, “Summerlin”) appeal from the

district court’s order remanding this case to state court for lack of federal subject

matter jurisdiction. Summerlin argues that the district court had three independent

grounds for such jurisdiction: federal officer removal, complete preemption, and the

presence of an embedded federal question.

I

The district court did not have federal subject matter jurisdiction under the

federal officer removal statute, 28 U.S.C. § 1442(a)(1), because Summerlin’s actions

were not “taken pursuant to a federal officer’s directions.” Saldana v. Glenhaven

Healthcare LLC, 27 F.4th 679, 684 (9th Cir. 2022) (cleaned up). While Summerlin

has demonstrated that, like the defendants in Saldana, it was subject to federal laws

and regulations throughout the COVID-19 pandemic, “simply complying with a law

or regulation is not enough to bring a private person within the scope of the [federal

officer removal] statute.” Id. (cleaned up). Similarly, recommendations, advice, and

encouragement from federal entities do not amount to the type of control required

for removal under the statute. See id. at 685.

II

The district court did not have federal subject matter jurisdiction under the

doctrine of complete preemption because the Public Readiness and Emergency

Preparedness (PREP) Act, 42 U.S.C. §§ 247d-6d, 247d-6e, is not a complete

2 preemption statute—that is, it is not one of those “rare” statutes “where a federal

statutory scheme is so comprehensive that it entirely supplants state law causes of

action.” Saldana, 27 F.4th at 686 (cleaned up). While the PREP Act may preempt

some state-law claims, any such conflict preemption would be an affirmative

defense, and would not create federal subject matter jurisdiction. See id. at 688.

III

The district court did not have embedded federal question jurisdiction because

the state-law causes of action in the complaint do not “necessarily” raise

“substantial” federal issues that are “actually disputed” and “capable of resolution in

federal court without disrupting the federal-state balance approved by Congress.” Id.

at 688 (cleaned up). Although a federal defense may be available under the PREP

Act, “a federal defense is not a sufficient basis to find embedded federal question

jurisdiction.” Id.

IV

In short, all of Summerlin’s challenges are controlled by Saldana. Summerlin

argues that Saldana was wrongly decided, but cites no “clearly irreconcilable”

intervening authority permitting us to overrule it. Miller v. Gammie, 335 F.3d 889,

900 (9th Cir. 2003) (en banc). Accordingly, we apply Saldana.

AFFIRMED.

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