NOT FOR PUBLICATION FILED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

PRISCILLA LUNA, Deceased by and No. 22-55308 through her personal legal representatives and successor in interest, John Roberts; D.C. No. JOHN ROBERTS; THERESA ROBERTS, 5:22-cv-00300-SB-SHK

Plaintiffs-Appellees,

MEMORANDUM*

v.

P AND M HEALTHCARE HOLDINGS,

INC., DBA Rancho Mesa Care Center, a California Skilled Nursing Facility;

MARYLYNN MAHAN; PHILLIP

WEINBERGER,

Defendants-Appellants,

and

DOES, 1-25, inclusive,

Defendant.

Appeal from the United States District Court for the Central District of California Stanley Blumenfeld, Jr., 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 Before: WALLACE, O’SCANNLAIN, and SILVERMAN, Circuit Judges.

P & M Healthcare Holdings, Inc. (doing business as Rancho Mesa Care

Center), Marylynn Mahan, and Phillip Weinberger (collectively, “Rancho Mesa”)

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

subject matter jurisdiction. Rancho Mesa 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 Rancho Mesa’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

Rancho Mesa 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.

without oral argument. See Fed. R. App. P. 34(a)(2).

2 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 Rancho Mesa’s challenges are controlled by Saldana. Rancho

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

3 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 Rancho Mesa’s motion for judicial notice, Docket No. 18, is GRANTED.

4