NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT RACHELLE CRUPI, as Special Administrator, Personal Representative and heir on behalf of Aletha Porcaro,

Plaintiff

- Appellee,

v. HEIGHTS OF SUMMERLIN, LLC; SUMMIT CARE, LLC; GENESIS HEALTHCARE, INC.; LATOYA DAVIS; ANDREW REESE,

Def endants

- Appellants. No. 22

- 15413
D.C. No. 2:21

- cv - 00954

- GMN

- DJA

MEMORANDUM *

Appeal from the United States District Court for the District of Nevada Gloria M. Navarro, District Judge, Presiding Submitted June 20, 2023 * *

Before: WALLACE, O’SCANNLAIN, and SILVERMAN, Circuit Judges. Heights of Summerlin, LLC, Summit Care, LLC, Genesis Healthcare, Inc.,

* 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). 

# FILED

JUN 21 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

Latoya Davis, and Andrew Reese ( collectively, “Summerlin”) appeal from the district court’s order remanding this case to state cour t for lack of federal subject matter jurisdiction. Summerlin 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 Summerlin’s actions were not “taken pursuant to a federal officer’s directions.” S aldana v. Glenhaven Healthcare LLC , 27 F.4th 679, 684 (9th Cir. 2022) (cleaned up). While Summerlin 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 enoug h 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 statut e. 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 complete3

preempt ion 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 c laims, 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 feder al 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 Summerlin’s challenges are controlled by Saldana . Summerlin argues that Saldana was wrongl y 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.