James Gavert v. Cf Modesto, LLC

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 21 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JAMES GAVERT, by and through his No. 22-15516 successor in interest; GERALDINE GAVERT, an individual; RHONDA D.C. No. GAVERT, an individual; RACHELLE 1:21-cv-01719-AWI-SKO GAVERT GRAHAM, an individual, Plaintiffs-Appellees, MEMORANDUM* v. CF MODESTO, LLC, DBA Modesto Post Acute Center, Defendant-Appellant, and MICHAEL LEE BRODIE, M.D., an individual; ANDREH SARALOU, M.D., an individual, Defendants. Appeal from the United States District Court for the Eastern District of California Anthony W. Ishii, 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. CF Modesto, LLC (doing business as Modesto Post Acute Center) (“Modesto”) appeals the district court’s order remanding this case to state court for lack of federal subject matter jurisdiction. Modesto 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 Modesto’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 Modesto 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). 2  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 Modesto’s challenges are controlled by Saldana. Modesto argues that Saldana was wrongly decided, but cites no “clearly irreconcilable” 3 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 Modesto’s motion for judicial notice, Docket No. 16, is GRANTED. 4