NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANGELINA MARTINEZ, 

Plaintiff-Appellee, 

 v. 

NOVATO HEALTHCARE CENTER, LLC; 

BRIUS MANAGEMENT CO, LLC; BRIUS, 

LLC, 

Defendants-Appellants.

No. 22-16312 

D.C. No. 4:21-cv-09547-HSG 

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

Haywood S. Gilliam, Jr., District Judge, Presiding

Submitted June 20, 2023**

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

Novato Healthcare Center, LLC, Brius Management Co., LLC, and Brius, 

LLC (collectively, “Novato”) appeal the district court’s order remanding this case to 

state court for lack of federal subject matter jurisdiction. Novato argues that the 

* 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
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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 Novato’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 Novato 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 

action.” Saldana, 27 F.4th at 686 (cleaned up). While the PREP Act may preempt 
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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 Novato’s challenges are controlled by Saldana. Novato 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.