Debra Ann Blackmon, in and through her Guardian ad Litem, Latasha Bracks v. VERNON HEALTHCARE CENTER, LLC, DBA Vernon Healthcare Center

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEBRA ANN BLACKMON, in and through
her Guardian ad Litem, Latasha Bracks,
Plaintiff-Appellee,
v.
VERNON HEALTHCARE CENTER, LLC,
DBA Vernon Healthcare Center;
ROCKPORT ADMINISTRATIVE
SERVICES, LLC; BRIUS MANAGEMENT
CO.,
Defendants-Appellants,
and
SHLOMO RECHNITZ,
Defendant.
No. 21-56134
D.C. No.
2:21-cv-05608-DSF-JC
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, 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
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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Before: WALLACE, O’SCANNLAIN, and SILVERMAN, Circuit Judges.
Vernon Healthcare Center, LLC, doing business as Vernon Healthcare Center,
Rockport Administrative Services, LLC, and Brius Management Co. (collectively,
“Vernon”) appeal from the district court’s order remanding this case to state court
for lack of federal subject matter jurisdiction. Vernon 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 Vernon’s relevant
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
Vernon 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

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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 Vernon’s challenges are controlled by Saldana. Vernon 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.

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2003) (en banc). Accordingly, we apply Saldana.
AFFIRMED.

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