James Gavert, by v. CF MODESTO, LLC, DBA Modesto Post Acute Center

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES GAVERT, by and through his
successor in interest; GERALDINE
GAVERT, an individual; RHONDA
GAVERT, an individual; RACHELLE
GAVERT GRAHAM, an individual,
Plaintiffs-Appellees,
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.
No. 22-15516
D.C. No.
1:21-cv-01719-AWI-SKO
MEMORANDUM*
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
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.
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).

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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”

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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.

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