NOT FOR PUBLICATION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, 

Defendants-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 APPEALS
2 

Latoya Davis, and Andrew Reese (collectively, “Summerlin”) appeal from the 

district court’s order remanding this case to state court 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.” Saldana 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 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 
3 

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 Summerlin’s challenges are controlled by Saldana. Summerlin 

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.