NOT FOR PUBLICATION FILED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

DEBRA ANN BLACKMON, in and through No. 21-56134 her Guardian ad Litem, Latasha Bracks, D.C. No. Plaintiff-Appellee, 2:21-cv-05608-DSF-JC

v.

MEMORANDUM*

VERNON HEALTHCARE CENTER, LLC,

DBA Vernon Healthcare Center;

ROCKPORT ADMINISTRATIVE

SERVICES, LLC; BRIUS MANAGEMENT

CO.,

Defendants-Appellants,

and

SHLOMO RECHNITZ,

Defendant.

Appeal from the United States District Court for the Central District of California Dale S. Fischer, 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.

Vernon Healthcare Center, LLC, doing business as Vernon Healthcare Center,

Rockport Administrative Services, LLC, and Brius Management Co. (collectively,

“Vernon”) appeal from the district court’s order remanding this case to state court

for lack of federal subject matter jurisdiction. Vernon 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 Vernon’s relevant

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

Vernon 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 Vernon’s challenges are controlled by Saldana. Vernon 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.

3 2003) (en banc). Accordingly, we apply Saldana.

AFFIRMED.

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