NOT FOR PUBLICATION FILED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

ELVIRA TERCERO, deceased, by and No. 22-15119 through her personal legal representative and successor in interest, JOHNNY SILVA; D.C. No. 4:21-cv-05563-JSW JOHNNY SILVA, individually,

Plaintiffs-Appellees, MEMORANDUM*

v.

ORINDA CARE CENTER, LLC, a Skilled Nursing Facility doing business as Orinda Care Center; RENEW HEALTH GROUP, LLC, a California company; LARRY GOLDFARB, an individual; CRYSTAL SOLORZANO, an individual,

Defendants-Appellants.

Appeal from the United States District Court for the Northern District of California Jeffrey S. White, District Judge, Presiding

Submitted June 20, 2023**

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

* 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). Orinda Care Center, LLC, Renew Health Group, LLC, Larry Goldfarb, and

Crystal Solorzano (collectively, “Orinda”) appeal from the district court’s order

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

Orinda 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 Orinda’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 Orinda 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.

IV

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