Jackie Saldana v. Glenhaven Healthcare LLC ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JACKIE SALDANA; CELIA SALDANA; No. 20-56194
RICARDO SALDANA, JR.; MARIA
SALDANA, as individuals and as D.C. No.
successors and heirs to Ricardo 2:20-cv-05631-
Saldana, deceased, FMO-MAA
Plaintiffs-Appellees,
v. OPINION
GLENHAVEN HEALTHCARE LLC, a
California corporation; CARAVAN
OPERATIONS CORP., a California
corporation; MATTHEW KARP, an
individual; BENJAMIN KARP, an
individual,
Defendants-Appellants.
Appeal from the United States District Court
for the Central District of California
Fernando M. Olguin, District Judge, Presiding
Argued and Submitted October 21, 2021
Pasadena, California
Filed February 22, 2022
2 SALDANA V. GLENHAVEN HEALTHCARE
Before: Ryan D. Nelson and Lawrence VanDyke, Circuit
Judges, and Karen E. Schreier, * District Judge.
Opinion by Judge Schreier
SUMMARY **
Federal Subject Matter Jurisdiction
The panel affirmed the district court’s order remanding
a removed case to state court for lack of federal subject
matter jurisdiction.
Relatives of Ricardo Saldana, who allegedly died from
COVID-19 at Glenhaven Healthcare nursing home, sued
Glenhaven and other defendants in California state court,
alleging state-law causes of action based on the allegation
that Glenhaven failed to adequately protect Saldana.
Glenhaven removed the case to federal court.
Affirming the district court’s order granting plaintiffs’
motion to remand the case to state court, the panel rejected
Glenhaven’s argument that the district court had three
grounds for federal jurisdiction. First, the panel held that the
district court lacked jurisdiction under the federal officer
removal statute, 28 U.S.C. § 1442, because Glenhaven did
not act under a federal officer or agency’s directions when it
*
The Honorable Karen E. Schreier, United States District Judge for
the District of South Dakota, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
SALDANA V. GLENHAVEN HEALTHCARE 3
complied with mandatory directives to nursing homes from
the Centers for Medicare and Medicaid Services, the Centers
for Disease Control and Prevention, and the Department of
Health and Human Services. Glenhaven’s status as a critical
infrastructure entity did not establish that it acted as a federal
officer or agency, or that it carried out a government duty.
Second, the panel held that plaintiffs’ claims were not
completely preempted by the Public Readiness and
Emergency Preparedness Act, which provides immunity
from suit when the HHS Secretary determines that a threat
to health constitutes a public health emergency, but provides
an exception to this immunity for an exclusive federal cause
of action for willful misconduct. In March 2020, the
Secretary issued a declaration under the PREP Act “to
provide liability immunity for activities related to medical
countermeasures against COVID-19.” The panel held that
the HHS Office of General Counsel’s Advisory Opinion on
complete preemption was not entitled to Chevron deference
because it was an opinion on federal court jurisdiction.
Instead, the panel applied the two-part test set forth in City
of Oakland v. BP PLC, 969 F.3d 895 (9th Cir. 2020). The
panel concluded that in enacting the PREP Act, Congress did
not intend to displace the non-willful misconduct claims
brought by plaintiffs related to the public health emergency,
nor did it provide substitute causes of action for plaintiffs’
claims. Thus, the federal statutory scheme was not so
comprehensive that it entirely supplanted state law causes of
action.
Third, the panel held that the district court did not have
jurisdiction under the embedded federal question doctrine,
under which federal jurisdiction over a state law claim will
lie if a federal issue is necessarily raised, actually disputed,
substantial, and capable of resolution in federal court
4 SALDANA V. GLENHAVEN HEALTHCARE
without disrupting the federal-state balance approved by
Congress.
COUNSEL
Lann G. McIntyre (argued), Lewis Brisbois Bisgaard &
Smith LLP, San Diego, California; Kathleen M. Walker,
Lewis Brisbois Bisgaard & Smith LLP, Los Angeles,
California; for Defendants-Appellants.
Adam R. Pulver (argued), Allison M. Zieve, and Scott L.
Nielson, Public Citizen Litigation Group, Washington, D.C.;
Scott C. Glovsky, Law Offices of Scott C. Glovsky,
Claremont, California; for Plaintiffs-Appellees.
Mark E. Reagan and Jeffrey Lin, Hooper Lundy & Bookman
P.C., San Francisco, California, for Amici Curiae California
Association of Health Facilities and American Health Care
Association.
Eric M. Carlson, Justice in Aging, Los Angeles, California,
for Amicus Curiae Justice in Aging.
SALDANA V. GLENHAVEN HEALTHCARE 5
OPINION
SCHREIER, District Judge:
Glenhaven Healthcare LLC, Caravan Operations Corp.,
Matthew Karp, and Benjamin Karp (collectively,
Glenhaven) appeal the district court’s order remanding this
case to state court for lack of federal subject matter
jurisdiction. We have jurisdiction under 28 U.S.C.
§ 1447(d), and affirm. 1
I. FACTUAL AND PROCEDURAL BACKGROUND
Ricardo Saldana was a resident of Glenhaven Healthcare
nursing home from 2014 to 2020. Saldana died at the
Glenhaven nursing home on April 13, 2020, allegedly from
COVID-19. In June 2020, four of Saldana’s relatives, Jackie
Saldana, Celia Saldana, Ricardo Saldana, Jr., and Maria
Saldana (the Saldanas), sued Glenhaven in California
Superior Court for Los Angeles County. The Saldanas allege
that Glenhaven failed to adequately protect Ricardo Saldana
from the COVID-19 virus. The complaint states four state-
law causes of action: elder abuse, willful misconduct,
custodial negligence, and wrongful death.
Glenhaven removed the case to the United States District
Court for the Central District of California in June 2020, and
the Saldanas moved to remand the case to state court. The
district court found that it did not have subject matter
jurisdiction to hear the case and granted the Saldanas’
motion to remand. Glenhaven appeals, arguing that the
district court has three independent grounds for federal
1
We also GRANT the pending motions for judicial notice. Docket
18; Docket 22.
6 SALDANA V. GLENHAVEN HEALTHCARE
jurisdiction: federal officer removal, complete preemption of
state law, and the presence of an imbedded federal question.
We agree with the district court and affirm.
II. STANDARD OF REVIEW
We review questions of statutory construction and
subject matter jurisdiction de novo. City of Oakland v. BP
PLC, 969 F.3d 895, 903 (9th Cir. 2020). When the federal
officer removal statute, 28 U.S.C. § 1442, is one ground for
removal, § 1447(d) permits appellate review of a district
court’s entire remand order. BP P.L.C. v. Mayor of Balt.,
141 S. Ct. 1532, 1538 (2021). “If at any time before final
judgment it appears that the district court lacks subject
matter jurisdiction, the case shall be remanded.” 28 U.S.C.
§ 1447(c).
III. DISCUSSION
A. Federal Officer Removal
1. Legal Standard
Under 28 U.S.C. § 1442(a)(1), the federal officer
removal statute, an action commenced in state court may be
removed to federal court when it is “against or directed to
. . . : [t]he United States or any agency thereof or any officer
(or any person acting under that officer) of the United States
or of any agency thereof, in an official or individual capacity,
for or relating to any act under color of such office . . . .” The
“basic purpose” of the statute “is to protect the Federal
Government from the interference with its operations that
would ensue were a State able, for example, to arrest and
bring to trial in a State court for an alleged offense against
the law of the State, officers and agents of the Government
acting within the scope of their authority.” Watson v. Philip
SALDANA V. GLENHAVEN HEALTHCARE 7
Morris Cos., Inc., 551 U.S. 142, 150 (2007) (cleaned up).
The federal officer removal statute is to be “liberally
construed,” but “a liberal construction nonetheless can find
limits in [the statute’s] language, context, history, and
purposes.” Id. at 147.
To remove a state court action under the federal officer
removal statute, a defendant must establish that “(a) it is a
person within the meaning of the statute; (b) there is a causal
nexus between its actions, taken pursuant to a federal
officer’s directions, and plaintiff’s claims; and (c) it can
assert a colorable federal defense.” Stirling v. Minasian,
955 F.3d 795, 800 (9th Cir. 2020) (quoting Fidelitad, Inc. v.
Insitu, Inc., 904 F.3d 1095, 1099 (9th Cir. 2018)). Here, the
parties do not dispute that each defendant is a “person” under
the statute. See 1 U.S.C. § 1 (“person” includes
“corporations, companies, associations, firms, partnerships
. . . as well as individuals”). Defendants seeking removal
“still bear the burden of proving by a preponderance of the
evidence that the colorable federal defense and causal nexus
requirements for removal jurisdiction are factually
supported.” Lake v. Ohana Mil. Cmtys., LLC, 14 F.4th 993,
1000 (9th Cir. 2021) (cleaned up).
2. Whether Glenhaven Acted Under a Federal
Officer’s Directions
To determine whether there was a causal nexus between
Glenhaven’s actions and the Saldanas’ claims, the court first
considers whether Glenhaven’s actions were taken
“pursuant to a federal officer’s directions,” Stirling, 955 F.3d
at 800, or while “acting under that officer.” 28 U.S.C.
§ 1442(a)(1). A person or entity who acts under a federal
officer or agency is one “‘who lawfully assist[s]’ a federal
officer ‘in the performance of his official duty’” and is
“authorized to act with or for [federal officers or agents] in
8 SALDANA V. GLENHAVEN HEALTHCARE
affirmatively executing duties under . . . federal law.”
Watson, 551 U.S. at 143 (cleaned up). The relationship
between a federal officer or agency and a person or entity
“acting under” the officer or agency “typically involves
subjection, guidance, or control.” Id. at 152. But “simply
complying” with a law or regulation is not enough to “bring
a private person within the scope of the statute.” Id. In
Watson the Supreme Court stated:
A private firm’s compliance (or
noncompliance) with federal laws, rules, and
regulations does not by itself fall within the
scope of the statutory phrase “acting under” a
federal “official.” And that is so even if the
regulation is highly detailed and even if the
private firm’s activities are highly supervised
and monitored.
Id. at 153. “The upshot is that a highly regulated firm cannot
find a statutory basis for removal in the fact of federal
regulation alone.” Id.Glenhaven argues that the federal government
“conscript[ed] . . . private entities like Glenhaven to join in
the fight [against COVID-19] through detailed and specific
mandatory directives to nursing homes on the use and
allocation of PPE, the administration of COVID-19 testing,
intervention protocols, and virtually every other aspect of the
operations of nursing homes during the pandemic.” Though
it acknowledges that compliance with federal laws,
regulations, and rules does not “by itself” bring a defendant
under the federal officer removal statute, Glenhaven claims
that the “unprecedent[ed] circumstances” of COVID-19
resulted in federal directives and operational control
SALDANA V. GLENHAVEN HEALTHCARE 9
amounting to more than compliance with government
regulations.
Glenhaven points to memoranda it received from the
Centers for Medicare and Medicaid Services (CMS), the
Centers for Disease Control and Prevention (CDC), and the
Department of Health and Human Services (HHS) during the
COVID-19 pandemic to show that the “federal government
and its agencies . . . became hyper-involved in the operational
activities of nursing facilities in response to the pandemic.”
But the agency communications Glenhaven relies on show
nothing more than regulations and recommendations for
nursing homes, covering topics such as COVID-19 testing,
use and distribution of personal protective equipment, and
best practices to reduce transmission within congregate living
environments. For example, one CMS memo identifies what
healthcare staff “should” do in response to the pandemic, and
it states what CMS “expects,” “encourages,” “advise[s],” and
“recommend[s].” Similarly, a CDC communication cited by
Glenhaven identifies “recommendations” and steps that
healthcare centers “should” take. Another memorandum
published by the California Department of Public Health
states that the agency “ensure[s] compliance with state
licensing laws and federal certification regulations” on behalf
of CMS. Licensing and Certification Program, Cal. Dep’t of
Pub. Health (Dec. 17, 2020), https://www.cdph.ca.gov/Progr
ams/CHCQ/LCP/Pages/LandCProgramHome.aspx. Without
more than government regulations and recommendations,
Glenhaven has failed to establish that it was “acting under” a
federal official, and it has not identified a duty of the federal
government that it performed.
Glenhaven also claims that, as a nursing home, its
designation as part of the national critical infrastructure
necessarily means that it acted on behalf of a federal official
10 SALDANA V. GLENHAVEN HEALTHCARE
or that it carried out a government duty. The Saldanas do not
dispute that nursing homes, including Glenhaven, are part of
the nation’s critical infrastructure. Glenhaven relies on a
memorandum from the Cybersecurity and Infrastructure
Security Agency (CISA) stating that the list of critical
infrastructure workers was developed as “guidance” to “help
state and local jurisdictions and the private sector identify
and manage their essential workforce while responding to
COVID-19.” CISA Releases Guidance on Essential
Critical Infrastructure Workers During COVID-19,
Cybersecurity & Infrastructure Sec. Agency (Oct. 25,
2021), https://www.cisa.gov/news/2020/03/19/cisa-release
s-guidance-essential-critical-infrastructure-workers-during
-covid-19. Notably, the memorandum also states that the
national critical infrastructure list “does not impose any
mandates on state or local jurisdictions or private
companies,” such as Glenhaven. Id.“It cannot be that the federal government’s mere
designation of an industry as important—or even critical—
is sufficient to federalize an entity’s operations and confer
federal jurisdiction.” Buljic v. Tyson Foods, Inc., 22 F.4th
730, 740 (8th Cir. 2021); see also Maglioli v. All. HC
Holdings LLC, 16 F.4th 393, 406 (3d Cir. 2021). Thus,
Glenhaven’s status as a critical infrastructure entity does not
establish that it acted under a federal officer or agency, or
that it carried out a government duty.
Glenhaven has failed to substantiate its claims that it was
conscripted to assist a federal officer or agency in
performance of a government duty or that it was authorized
to act for a federal officer. All that Glenhaven has
demonstrated is that it operated as a private entity subject to
government regulations, and that during the COVID-19
pandemic it received additional regulations and
SALDANA V. GLENHAVEN HEALTHCARE 11
recommendations from federal agencies. Thus, Glenhaven
was not “acting under” a federal officer or agency as
contemplated by the federal officer removal statute. And
because Glenhaven did not act under a federal officer, there
is no causal nexus that allows removal under 28 U.S.C.
§ 1442.
B. Preemption Under the PREP Act
1. Legal Standard
Glenhaven argues that this case was properly removed to
federal court because the Saldanas’ claims are completely
preempted by the Public Readiness and Emergency
Preparedness (PREP) Act, 42 U.S.C. §§ 247d-6d, 247d-6e.
“Complete preemption is ‘really a jurisdictional rather than
a preemption doctrine, as it confers exclusive federal
jurisdiction in certain instances where Congress intended the
scope of a federal law to be so broad as to entirely replace
any state-law claim.’” Dennis v. Hart, 724 F.3d 1249, 1254
(9th Cir. 2013) (emphasis added) (quoting Marin Gen. Hosp.
v. Modesto & Empire Traction Co., 581 F.3d 941, 945 (9th
Cir. 2009)). Put another way, “[c]omplete preemption . . .
applies only where a federal statutory scheme is so
comprehensive that it entirely supplants state law causes of
action.” Retail Prop. Tr. v. United Bhd. of Carpenters &
Joiners of Am., 768 F.3d 938, 947 (9th Cir. 2014) (quoting
Dennis, 724 F.3d at 1254). To determine whether a claim is
completely preempted, the court asks whether Congress
“(1) intended to displace a state-law cause of action, and (2)
provided a substitute cause of action.” City of Oakland,
969 F.3d at 906 (citing Hansen v. Grp. Health Coop.,
902 F.3d 1051, 1057 (9th Cir. 2018)). Complete preemption
is “rare.” Hansen, 902 F.3d at 1057 (quoting Retail Prop.
Tr., 768 F.3d at 947). The Supreme Court has identified only
three complete preemption statutes: § 301 of the Labor
12 SALDANA V. GLENHAVEN HEALTHCARE
Management Relations Act, § 502(a) of the Employee
Retirement Income Security Act of 1974 (ERISA), and
§§ 85 and 86 of the National Bank Act. City of Oakland,
969 F.3d at 905–06.
Complete preemption is an exception to the well-pleaded
complaint rule. Id. at 905. Under the well-pleaded complaint
rule, a civil action arises under federal law for purposes of
federal question jurisdiction when a federal question appears
on the face of the complaint. Id. at 903 (citing Caterpillar
Inc. v. Williams, 482 U.S. 386, 392 (1987)). Under the rule,
removal must be based on the plaintiff’s claims and cannot
be based on a defendant’s federal defense. Id. at 903–04. But
the exception for complete preemption, the “artful-pleading
doctrine[,] . . . allows removal where federal law completely
preempts a plaintiff’s state-law claim.” Id. at 905 (quoting
Rivet v. Regions Bank of La., 522 U.S. 470, 475 (1998)).
2. The PREP Act
Passed by Congress in 2005, the PREP Act provides that
“a covered person shall be immune from suit and liability
under Federal and State law with respect to all claims for loss
caused by, arising out of, relating to, or resulting from the
administration to or the use by an individual of a covered
countermeasure . . . .” 42 U.S.C. § 247d-6d(a)(1). Both
“covered countermeasure” and “covered person” are terms
defined in the Act. See § 247d-6d(i)(1)–(2). The PREP Act
is invoked when “the [HHS] Secretary makes a
determination that a disease or other health condition or
other threat to health constitutes a public health emergency,
or that there is a credible risk that the disease, condition, or
threat may in the future constitute such an emergency . . . .”
§ 247d-6d(b)(1). The Secretary “controls the scope of
immunity through the declaration and amendments, within
the confines of the PREP Act.” Maglioli, 16 F.4th at 401.
SALDANA V. GLENHAVEN HEALTHCARE 13
The Secretary’s declaration “may specify[] the manufacture,
testing, development, distribution, administration, or use of
one or more covered countermeasures.” § 247d-6d(b)(1).
The PREP Act created the Covered Countermeasure Process
Fund to compensate “eligible individuals for covered
injuries directly caused by the administration or use of a
covered countermeasure pursuant to such declaration . . . .”
§ 247d-6e(a).
Section 247d-6d(d)(1) provides that “the sole exception
to the immunity from suit and liability of covered persons
. . . shall be for an exclusive Federal cause of action against
a covered person for death or serious physical injury
proximately caused by willful misconduct . . . by such
covered person.” Such an action “shall be filed and
maintained only in the United States District Court for the
District of Columbia.” § 247d-6d(e)(1). The term “willful
misconduct” is defined in the Act. § 247d-6d(c)(1)(A). An
individual may not bring a suit under § 247d-6d(d)(1) unless
the individual has exhausted the remedies available under
§ 247d-6e(a), the Covered Countermeasure Process Fund.
§ 247d-6e(d)(1).
In March 2020, the Secretary issued a declaration under
the PREP Act “to provide liability immunity for activities
related to medical countermeasures against COVID-19.”
Declaration Under the Public Readiness and Emergency
Preparedness Act for Medical Countermeasures Against
COVID-19, 85 Fed. Reg. 15,198, 15,198 (Mar. 17, 2020).
The declaration provided immunity for covered persons for
the use of covered measures, including “any antiviral, any
other drug, any biologic, any diagnostic, any other device, or
any vaccine, used to treat, diagnose, cure, prevent, or
mitigate COVID-19 . . . .” Id. at 15,202. The Secretary has
issued subsequent amended declarations throughout the
14 SALDANA V. GLENHAVEN HEALTHCARE
pandemic. See Seventh Amendment to Declaration Under
the Public Readiness and Emergency Preparedness Act for
Medical Countermeasures Against COVID-19, 86 Fed. Reg.
14,462 (Mar. 16, 2021).
3. Whether the PREP Act is a Complete Preemption
Statute
Glenhaven’s complete preemption argument relies on
the HHS Secretary’s and the HHS Office of General
Counsel’s respective conclusions that the PREP Act is a
complete preemption statute. Fifth Amendment to the
Declaration Under the Public Readiness and Emergency
Preparedness Act for Medical Countermeasures Against
COVID-19, 86 Fed. Reg. 7874 (Feb. 2, 2021); Dep’t Health
& Hum. Servs., General Counsel Advisory Opinion 21-01
(Jan. 8, 2021). But “[c]omplete preemption is really a
jurisdictional rather than a preemption doctrine[.]” Dennis,
724 F.3d at 1254 (internal quotation omitted). And an
agency’s opinion on federal court jurisdiction is not entitled
to Chevron deference. Dandino, Inc. v. U.S. Dep’t of
Transp., 729 F.3d 917, 920 n.1 (9th Cir. 2013). Thus,
Glenhaven’s reliance on the Advisory Opinion is misplaced
and not a sufficient basis to establish complete preemption
and thus federal jurisdiction.
Instead of deferring to an opinion of the Office of
General Counsel, this court applies the two-part test
articulated in City of Oakland: (1) did Congress intend to
displace a state-law cause of action and (2) did Congress
provide a substitute cause of action? 969 F.3d at 906.
Turning to the statute’s text, the PREP Act states that it
provides immunity under certain conditions for “covered
person[s]” who use “covered countermeasure[s].” 42 U.S.C.
§ 247d-6d(a)(1). Subsection (d) is the only subsection that
explicitly states that there shall be an “exclusive Federal
SALDANA V. GLENHAVEN HEALTHCARE 15
cause of action,” limited to claims against “covered persons”
for “willful misconduct,” as the terms are defined in the Act.
§ 247d-6d(d). The provision of one specifically defined,
exclusive federal cause of action undermines Glenhaven’s
argument that Congress intended the Act to completely
preempt all state-law claims related to the pandemic. The
text of the statute shows that Congress intended a federal
claim only for willful misconduct claims and not claims for
negligence and recklessness. § 247d-6d(c)(1)(B). An
administrative compensation fund, not an exclusive federal
cause of action, provides the only redress for claims brought
under the Act, other than those alleging “willful
misconduct.” The PREP Act neither shows the intent of
Congress to displace the non-willful misconduct claims
brought by the Saldanas related to the public health
emergency, nor does it provide substitute causes of action
for their claims. Thus, under this court’s two-part test, the
PREP Act is not a complete preemption statute.
Glenhaven argues that the PREP Act may preempt one
of the Saldanas’ claims—the second cause of action under
state law for willful misconduct. Whether the claim is
preempted by the PREP Act turns on whether any of the
conduct alleged in the complaint fits the statute’s definitions
for such a claim. But finding that one claim may be
preempted is different than finding that the “federal statutory
scheme is so comprehensive that it entirely supplants state
law causes of action,” such as the Saldanas’ other causes of
action for elder abuse, custodial negligence, and wrongful
death. Retail Prop. Tr., 768 F.3d at 947 (emphasis added)
(quoting Dennis, 724 F.3d at 1254); see also Caterpillar,
482 U.S. at 393 (distinguishing between complete
preemption and raising a federal defense); Toumajian v.
Frailey, 135 F.3d 648, 654 (9th Cir. 1998) (distinguishing
between complete preemption and “conflict preemption” of
16 SALDANA V. GLENHAVEN HEALTHCARE
a particular claim). Thus, the district court’s remand order
for lack of federal subject matter jurisdiction based upon
complete preemption was proper.
C. Embedded Federal Question
Glenhaven argues that the district court has jurisdiction
under the embedded federal question doctrine. Under this
doctrine, “federal jurisdiction over a state law claim will lie
if a federal issue is (1) necessarily raised, (2) actually
disputed, (3) substantial, and (4) capable of resolution in
federal court without disrupting the federal-state balance
approved by Congress.” Gunn v. Minton, 568 U.S. 251, 258
(2013). The well-pleaded complaint rule applies when
determining whether the embedded federal question doctrine
applies. Cal. Shock Trauma Air Rescue v. State Comp. Ins.
Fund, 636 F.3d 538, 542 (9th Cir. 2011).
Here, the Saldanas’ complaint states four causes of
action: elder abuse, willful misconduct, custodial
negligence, and wrongful death. The claims in the complaint
are raised under California law and do not raise questions of
federal law on the face of the complaint. Glenhaven seeks to
raise a federal defense under the PREP Act, but a federal
defense is not a sufficient basis to find embedded federal
question jurisdiction. Provincial Gov’t of Marinduque v.
Placer Dome, Inc., 582 F.3d 1083, 1090 (9th Cir. 2009).
Glenhaven argues that the Saldanas’ willful misconduct
claim raises a federal issue under the PREP Act. Glenhaven
does not identify how a right or immunity created by the
PREP Act must be an essential element of the willful
misconduct claim as stated in the complaint. On its face, the
issue is not a “substantial” part of the Saldanas’ complaint
because, according to the complaint, only some of the steps
Glenhaven allegedly took, and did not take, may have
SALDANA V. GLENHAVEN HEALTHCARE 17
involved a “covered person,” under the PREP Act. Thus,
remand is proper because the complaint does not present an
embedded federal question.
IV. CONCLUSION
Glenhaven did not act under a federal officer or carry out
a federal duty when it provided care to Ricardo Saldana. The
PREP Act does not completely preempt the Saldanas’
claims, and the possible preemption of one claim cannot be
determined by this court or the district court. And there is no
embedded federal question in the Saldanas’ complaint. Thus,
the district court lacked subject matter jurisdiction, and the
suit was properly remanded to state court.
AFFIRMED.