NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

QIANA WINN, individually and as 

Successor in Interest to the Estate of Michael 

Winn, 

Plaintiff-Appellee, 

 v. 

CALIFORNIA POST ACUTE, LLC, DBA 

California Post Acute, 

Defendant-Appellant, 

and 

DOES, 1-50, 

Defendant.

No. 21-55468 

D.C. No. 

2:21-cv-02854-PA-MAR 

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

Percy Anderson, District Judge, Presiding

Submitted June 20, 2023**

Before: WALLACE, O’SCANNLAIN, and SILVERMAN, Circuit Judges.

* 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 

California Post Acute, LLC (“Post Acute”) appeals from the district court’s 

order remanding this case to state court for lack of federal subject matter jurisdiction. 

Post Acute 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. In the alternative, Post Acute argues that it should have 

been allowed jurisdictional discovery.

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 Post Acute’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 Post Acute 

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 
3 

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

The district court did not abuse its discretion by not providing for 

jurisdictional discovery. Jurisdictional discovery is appropriate only “where 

pertinent facts bearing on the question of jurisdiction are controverted or where a 

more satisfactory showing of the facts is necessary.” Yamashita v. LG Chem, Ltd., 

62 F.4th 496, 507 (9th Cir. 2023) (cleaned up). Here, the parties dispute no facts 
4 

about the extent of federal regulation of health care providers during the COVID-19 

pandemic, but only the legal significance of that regulation, which Saldana resolved.

V

In short, all of Post Acute’s challenges are controlled by Saldana. Post Acute 

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.

1

1 Appellees’ Motion for Summary Affirmance, Dkt. 37, is DENIED AS MOOT.