Priscilla Luna v. P and M Healthcare Holdings, Inc. ( 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NOT FOR PUBLICATION FILED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
PRISCILLA LUNA, Deceased by and No. 22-55308
through her personal legal representatives
and successor in interest, John Roberts; D.C. No.
JOHN ROBERTS; THERESA ROBERTS, 5:22-cv-00300-SB-SHK
Plaintiffs-Appellees,
MEMORANDUM*
v.
P AND M HEALTHCARE HOLDINGS,
INC., DBA Rancho Mesa Care Center, a
California Skilled Nursing Facility;
MARYLYNN MAHAN; PHILLIP
WEINBERGER,
Defendants-Appellants,
and
DOES, 1-25, inclusive,
Defendant.
Appeal from the United States District Court
for the Central District of California
Stanley Blumenfeld, Jr., 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
Before: WALLACE, O’SCANNLAIN, and SILVERMAN, Circuit Judges.
P & M Healthcare Holdings, Inc. (doing business as Rancho Mesa Care
Center), Marylynn Mahan, and Phillip Weinberger (collectively, “Rancho Mesa”)
appeal the district court’s order remanding this case to state court for lack of federal
subject matter jurisdiction. Rancho Mesa 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 Rancho Mesa’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
Rancho Mesa 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.
without oral argument. See Fed. R. App. P. 34(a)(2).
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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
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 Rancho Mesa’s challenges are controlled by Saldana. Rancho
Mesa argues that Saldana was wrongly decided, but cites no “clearly irreconcilable”
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intervening authority permitting us to overrule it. Miller v. Gammie, 335 F.3d 889,
900 (9th Cir. 2003) (en banc). Accordingly, we apply Saldana.1
AFFIRMED.
1
Rancho Mesa’s motion for judicial notice, Docket No. 18, is GRANTED.
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