NOT FOR PUBLICATION FILED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

DOREEN ACRA; PAMELA ARCHULETA, No. 21-55813 individually and as heirs and successors-in- interest to Billy Acra Deceased, D.C. No. 5:21-cv-00898-GW-SHK Plaintiffs-Appellees,

v. MEMORANDUM*

CALIFORNIA MAGNOLIA

CONVALESCENT HOSPITAL, INC., DBA

Magnolia Rehabilitation and Nursing Center,

Defendant-Appellant,

and

VIBRA HOSPITAL OF SAN

BERNARDINO, LLC, DBA Ballard Rehabilitation Hospital; DOES, 1-50,

Defendants.

Appeal from the United States District Court for the Central District of California George H. Wu, 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.

California Magnolia Convalescent Hospital, Inc. (doing business as Magnolia

Rehabilitation and Nursing Center) (“Magnolia”) appeals from the district court’s

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

Magnolia 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 Magnolia’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 Magnolia

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

2 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 Magnolia’s challenges are controlled by Saldana. Magnolia

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,

3 900 (9th Cir. 2003) (en banc). Accordingly, we apply Saldana.1

AFFIRMED.

1 Magnolia’s motion for judicial notice, Docket No. 22, is GRANTED.

4