Saldana v. Glenhaven Healthcare LLC

Decision Date22 February 2022
Docket NumberNo. 20-56194,20-56194
Citation27 F.4th 679
Parties Jackie SALDANA; Celia Saldana; Ricardo Saldana, Jr.; Maria Saldana, as individuals and as successors and heirs to Ricardo Saldana, deceased, Plaintiffs-Appellees, v. GLENHAVEN HEALTHCARE LLC, a California corporation; Caravan Operations Corp., a California corporation; Matthew Karp, an individual; Benjamin Karp, an individual, Defendants-Appellants.
CourtU.S. Court of Appeals — Ninth Circuit

Lann G. McIntyre (argued), Lewis Brisbois Bisgaard & Smith LLP, San Diego, California; Kathleen M. Walker, Lewis Brisbois Bisgaard & Smith LLP, Los Angeles, California; for Defendants-Appellants.

Adam R. Pulver (argued), Allison M. Zieve, and Scott L. Nielson, Public Citizen Litigation Group, Washington, D.C.; Scott C. Glovsky, Law Offices of Scott C. Glovsky, Claremont, California; for Plaintiffs-Appellees.

Mark E. Reagan and Jeffrey Lin, Hooper Lundy & Bookman P.C., San Francisco, California, for Amici Curiae California Association of Health Facilities and American Health Care Association.

Eric M. Carlson, Justice in Aging, Los Angeles, California, for Amicus Curiae Justice in Aging.

Before: Ryan D. Nelson and Lawrence VanDyke, Circuit Judges, and Karen E. Schreier,* District Judge.

SCHREIER, District Judge:

Glenhaven Healthcare LLC, Caravan Operations Corp., Matthew Karp, and Benjamin Karp (collectively, Glenhaven) appeal the district court's order remanding this case to state court for lack of federal subject matter jurisdiction. We have jurisdiction under 28 U.S.C. § 1447(d), and affirm.1

I. FACTUAL AND PROCEDURAL BACKGROUND

Ricardo Saldana was a resident of Glenhaven Healthcare nursing home from 2014 to 2020. Saldana died at the Glenhaven nursing home on April 13, 2020, allegedly from COVID-19. In June 2020, four of Saldana's relatives, Jackie Saldana, Celia Saldana, Ricardo Saldana, Jr., and Maria Saldana (the Saldanas), sued Glenhaven in California Superior Court for Los Angeles County. The Saldanas allege that Glenhaven failed to adequately protect Ricardo Saldana from the COVID-19 virus. The complaint states four state-law causes of action: elder abuse, willful misconduct, custodial negligence, and wrongful death.

Glenhaven removed the case to the United States District Court for the Central District of California in June 2020, and the Saldanas moved to remand the case to state court. The district court found that it did not have subject matter jurisdiction to hear the case and granted the Saldanas' motion to remand. Glenhaven appeals, arguing that the district court has three independent grounds for federal jurisdiction: federal officer removal, complete preemption of state law, and the presence of an imbedded federal question. We agree with the district court and affirm.

II. STANDARD OF REVIEW

We review questions of statutory construction and subject matter jurisdiction de novo. City of Oakland v. BP PLC , 969 F.3d 895, 903 (9th Cir. 2020). When the federal officer removal statute, 28 U.S.C. § 1442, is one ground for removal, § 1447(d) permits appellate review of a district court's entire remand order. BP P.L.C. v. Mayor of Balt. , ––– U.S. ––––, 141 S. Ct. 1532, 1538, 209 L.Ed.2d 631 (2021). "If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c).

III. DISCUSSION
A. Federal Officer Removal
1. Legal Standard

Under 28 U.S.C. § 1442(a)(1), the federal officer removal statute, an action commenced in state court may be removed to federal court when it is "against or directed to ...: [t]he United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office ...." The "basic purpose" of the statute "is to protect the Federal Government from the interference with its operations that would ensue were a State able, for example, to arrest and bring to trial in a State court for an alleged offense against the law of the State, officers and agents of the Government acting within the scope of their authority." Watson v. Philip Morris Cos., Inc. , 551 U.S. 142, 150, 127 S.Ct. 2301, 168 L.Ed.2d 42 (2007) (cleaned up). The federal officer removal statute is to be "liberally construed," but "a liberal construction nonetheless can find limits in [the statute's] language, context, history, and purposes." Id. at 147, 127 S.Ct. 2301.

To remove a state court action under the federal officer removal statute, a defendant must establish that "(a) it is a person within the meaning of the statute; (b) there is a causal nexus between its actions, taken pursuant to a federal officer's directions, and plaintiff's claims; and (c) it can assert a colorable federal defense." Stirling v. Minasian , 955 F.3d 795, 800 (9th Cir. 2020) (quoting Fidelitad, Inc. v. Insitu, Inc. , 904 F.3d 1095, 1099 (9th Cir. 2018) ). Here, the parties do not dispute that each defendant is a "person" under the statute. See 1 U.S.C. § 1 ("person" includes "corporations, companies, associations, firms, partnerships ... as well as individuals"). Defendants seeking removal "still bear the burden of proving by a preponderance of the evidence that the colorable federal defense and causal nexus requirements for removal jurisdiction are factually supported." Lake v. Ohana Mil. Cmtys., LLC , 14 F.4th 993, 1000 (9th Cir. 2021) (cleaned up).

2. Whether Glenhaven Acted Under a Federal Officer's Directions

To determine whether there was a causal nexus between Glenhaven's actions and the Saldanas' claims, the court first considers whether Glenhaven's actions were taken "pursuant to a federal officer's directions," Stirling , 955 F.3d at 800, or while "acting under that officer." 28 U.S.C. § 1442(a)(1). A person or entity who acts under a federal officer or agency is one " ‘who lawfully assist[s] a federal officer ‘in the performance of his official duty’ " and is "authorized to act with or for [federal officers or agents] in affirmatively executing duties under ... federal law." Watson , 551 U.S. at 143, 127 S.Ct. 2301 (cleaned up). The relationship between a federal officer or agency and a person or entity "acting under" the officer or agency "typically involves subjection, guidance, or control." Id. at 152, 127 S.Ct. 2301. But "simply complying " with a law or regulation is not enough to "bring a private person within the scope of the statute." Id. In Watson the Supreme Court stated:

A private firm's compliance (or noncompliance) with federal laws, rules, and regulations does not by itself fall within the scope of the statutory phrase "acting under" a federal "official." And that is so even if the regulation is highly detailed and even if the private firm's activities are highly supervised and monitored.

Id. at 153. "The upshot is that a highly regulated firm cannot find a statutory basis for removal in the fact of federal regulation alone." Id.

Glenhaven argues that the federal government "conscript[ed] ... private entities like Glenhaven to join in the fight [against COVID-19] through detailed and specific mandatory directives to nursing homes on the use and allocation of PPE, the administration of COVID-19 testing, intervention protocols, and virtually every other aspect of the operations of nursing homes during the pandemic." Though it acknowledges that compliance with federal laws, regulations, and rules does not "by itself" bring a defendant under the federal officer removal statute, Glenhaven claims that the "unprecedent[ed] circumstances" of COVID-19 resulted in federal directives and operational control amounting to more than compliance with government regulations.

Glenhaven points to memoranda it received from the Centers for Medicare and Medicaid Services (CMS), the Centers for Disease Control and Prevention (CDC), and the Department of Health and Human Services (HHS) during the COVID-19 pandemic to show that the "federal government and its agencies ... became hyper-involved in the operational activities of nursing facilities in response to the pandemic." But the agency communications Glenhaven relies on show nothing more than regulations and recommendations for nursing homes, covering topics such as COVID-19 testing, use and distribution of personal protective equipment, and best practices to reduce transmission within congregate living environments. For example, one CMS memo identifies what healthcare staff "should" do in response to the pandemic, and it states what CMS "expects," "encourages," "advise[s]," and "recommend[s]." Similarly, a CDC communication cited by Glenhaven identifies "recommendations" and steps that healthcare centers "should" take. Another memorandum published by the California Department of Public Health states that the agency "ensure[s] compliance with state licensing laws and federal certification regulations" on behalf of CMS. Licensing and Certification Program , Cal. Dep't of Pub. Health (Dec. 17, 2020), https://www.cdph.ca.gov/Programs/CHCQ/LCP/Pages/LandCProgramHome.aspx. Without more than government regulations and recommendations, Glenhaven has failed to establish that it was "acting under" a federal official, and it has not identified a duty of the federal government that it performed.

Glenhaven also claims that, as a nursing home, its designation as part of the national critical infrastructure necessarily means that it acted on behalf of a federal official or that it carried out a government duty. The Saldanas do not dispute that nursing homes, including Glenhaven, are part of the nation's critical infrastructure. Glenhaven relies on a memorandum from the Cybersecurity and Infrastructure Security Agency (CISA) stating that the list of critical infrastructure workers was developed as "guidance" to "help state and local jurisdictions and the private sector identify and manage...

To continue reading

Request your trial
117 cases
  • Lopez v. Cantex Health Care Ctrs. II
    • United States
    • U.S. District Court — District of New Mexico
    • 24 Febrero 2023
    ...out a government duty.” Saldana v. Glenhaven Healthcare LLC, 27 F.4th 679, 685-86 (9th Cir.), cert. denied, 143 S.Ct. 444 (2022). As in Saldana and all other circuit cases to consider issue so far, Defendants have “failed to substantiate [their] claims that it was conscripted to assist a fe......
  • Lopez v. Cantex Health Care Ctrs. II
    • United States
    • U.S. District Court — District of New Mexico
    • 24 Febrero 2023
    ...out a government duty.” Saldana v. Glenhaven Healthcare LLC, 27 F.4th 679, 685-86 (9th Cir.), cert. denied, 143 S.Ct. 444 (2022). As in Saldana and all other circuit cases to consider issue so far, Defendants have “failed to substantiate [their] claims that it was conscripted to assist a fe......
  • Lopez v. Cantex Health Care Ctrs. II
    • United States
    • U.S. District Court — District of New Mexico
    • 24 Febrero 2023
    ... ... v. All. HC Holdings LLC , 16 F.4th 393 (3d Cir. 2021); ... Saldana v. Glenhaven Healthcare LLC , 27 F.4th 679 ... (9th Cir. 2022); Mitchell v. Advanced HCS, ... ...
  • Lopez v. Cantex Health Care Ctrs. II
    • United States
    • U.S. District Court — District of New Mexico
    • 24 Febrero 2023
    ... ... v. All. HC Holdings LLC , 16 F.4th 393 (3d Cir. 2021); ... Saldana v. Glenhaven Healthcare LLC , 27 F.4th 679 ... (9th Cir. 2022); Mitchell v. Advanced HCS, ... ...
  • Request a trial to view additional results
1 firm's commentaries
  • PREP Act Immunity: Baghikian v. Providence Health & Servs.
    • United States
    • LexBlog United States
    • 29 Febrero 2024
    ...potentially hurting themselves on the main issue (immunity) over a skirmish about jurisdiction. In Saldana v. Glenhaven Healthcare LLC, 27 F.4th 679, 686 (9th Cir. 2022), the Ninth Circuit held that the PREP Act does not result in “complete” preemption. Complete preemption is not a defense ......
1 books & journal articles
  • Health Law Standing Committee — 2022 Appellate Litigation Update
    • United States
    • California Lawyers Association Business Law Section Annual Review (CLA) No. 2023-1, 2023
    • Invalid date
    ...31 F.4th 1110 (9th Cir. 2022) [State regulatory board actions may violate the Sherman Antitrust Act]Saldana v. Glenhaven Healthcare LLC, 27 F.4th 679 (9th Cir. 2022) [The PREP Act neither requires providers to work under federal officials nor completely preempts state law]County of Santa Cl......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT