Susan Olmes v. San Marino Gardens Wellness Center, Lp ( 2023 )

NOT FOR PUBLICATION FILED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
SUSAN OLMES, Individually and as heir No. 22-55289
and Successor in Interest to the Estate of
Michael Olmes, D.C. No.
2:21-cv-09375-DSF-SK
Plaintiff-Appellee,
v. MEMORANDUM*
SAN MARINO GARDENS WELLNESS
CENTER, LP, DBA Pasadena Park
Healthcare and Wellness Center,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted June 20, 2023**
Before: WALLACE, O’SCANNLAIN, and SILVERMAN, Circuit Judges.
San Marino Gardens Wellness Center, LP (“San Marino”) appeals from the
district court’s order remanding this case to state court for lack of federal subject
*
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).
matter jurisdiction. San Marino 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 San Marino’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
San Marino 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
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
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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 San Marino’s challenges are controlled by Saldana. San Marino
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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