NOT FOR PUBLICATION FILED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

RICHARD HEIM, deceased, by and through No. 21-56010 his personal legal representative and successor in interest, Tracy Heim; TRACY D.C. No. HEIM, 2:21-cv-06221-PA-ADS

Plaintiffs-Appellees,

MEMORANDUM *

v.

1495 CAMERON AVENUE, LLC, DBA West Haven Healthcare Center, a Skilled Nursing Facility; DEUTSCH 2016 GRAT, a business organization, form unknown; MAYER 2005 REVOCABLE TRUST, a trust; MAYER 2012 TRUST, a trust,

Defendants-Appellants,

and

DOES, 1-25, inclusive,

Defendant.

Appeal from the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Submitted June 20, 2023**

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

1495 Cameron Avenue, LLC (doing business as West Haven Healthcare

Center), Deutsch 2016 GRAT, Mayer 2005 Revocable Trust, and Mayer 2012 Trust

(collectively, West Haven) appeal from the district court’s order remanding this case

to state court for lack of federal subject matter jurisdiction. West Haven 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 West Haven’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

West Haven 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

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

2 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

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 West Haven’s challenges are controlled by Saldana. West

3 Haven 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.1

AFFIRMED.

1 West Haven’s motion for judicial notice, Docket No. 18, is GRANTED.

4