NOT FOR PUBLICATION FILED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

EVON SMITH, individually and as No. 21-55377 successor-in-interest to decedent Joan Rivers; DALE CHANAIWA; MAURICE JORDAN; D.C. No. JUNE SMITH-WIMES; DARREL SMITH; 2:21-cv-00494-RGK-PD

GARY SMITH; KENNEDY SMITH,

Plaintiffs-Appellees, MEMORANDUM*

v.

COLONIAL CARE CENTER,

Defendant-Appellant,

and

JOHN HOUSTON, Nominal Defendant; RONALD SMITH, Nominal Defendant; DOES, 1 through 25, inclusive,

Defendants.

Appeal from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding

Submitted June 20, 2023**

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

Colonial Care Center (“Colonial”) appeals from the district court’s order

remanding this case to state court for lack of federal subject matter jurisdiction.

Colonial 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 Colonial’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 Colonial 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

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

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.1

AFFIRMED.

1 Colonial’s motion for judicial notice, Docket No. 10, is GRANTED.

3