The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_______________________________________
)
JANE DOE, et al., )
)
Plaintiff, )
) Civil Action No.
v. ) 23-10923-FDS
)
ATRIUS HEALTH, INC., )
)
Defendant. )
_______________________________________)
MEMORANDUM AND ORDER ON PLAINTIFF’S MOTION TO REMAND
SAYLOR, C.J.
This is a putative class action against a non-governmental healthcare provider alleging
systematic violation of patients’ state-law privacy rights. The complaint was originally filed in
the Suffolk County Superior Court before being removed to federal court under 28 U.S.C.
§ 1442(a)(1). Plaintiffs have moved to remand, contending that federal subject-matter
jurisdiction is lacking because defendant has failed to meet the requirements of § 1442(a)(1).
For the reasons set forth below, the motion to remand will be granted.
I. Background
A. Factual Background
Atrius Health, Inc. is the parent company for dozens of medical practices in
Massachusetts. (Compl. ¶ 13). Its principal place of business is in Massachusetts, and it is a
Massachusetts corporation. (Id. ¶ 11). Atrius operates websites designed for patient
communications, scheduling, searching for physicians, paying bills, requesting medical records,
learning about medical issues, and joining support groups. (Id. ¶¶ 14-15).
The complaint alleges that plaintiff is a patient of Atrius and regularly visits its websites
and enters data, including personal health information. (Id. ¶ 10). The complaint alleges that
Atrius’s websites utilized Google Analytics and Facebook’s Meta Pixel tools—computer codes
that track users’ activities on a website, allowing that information to be processed and analyzed
by Google or Facebook, and shared with third-party advertisers. (Id. ¶¶ 26-40).
In its notice of removal, Atrius asserts that it acted in accordance with a series of federal
programs that sought to create a nationwide health-information technology infrastructure.
(Notice ¶ 11).
1. Federal Regulatory Framework
In 2004, President Bush ordered the Secretary of Health and Human Services to establish
the position of National Health Information Technology Coordinator. Exec. Order No. 13,335,
69 Fed. Reg. 24,059 (Apr. 27, 2004). The Executive Order specified that the Coordinator “shall,
to the extent permitted by law, develop, maintain, and direct the implementation of a strategic
plan to guide the nationwide implementation of interoperable health information technology in
both the public and private health care sectors.” Id.
In 2009, Congress passed the Health Information Technology for Economic and Clinical
Health Act (“HITECH Act”). See American Recovery and Reinvestment Act of 2009, Pub. L.
No. 111-5, 123 Stat. 115 (2009). The Act codified the Office of the National Coordinator for
Health Information Technology (“ONC”). 42 U.S.C. § 300jj-11(a). The ONC is headed by a
National Coordinator, who is directed to “update the Federal Health IT Strategic Plan . . . to
include specific objectives, milestones, and metrics” regarding “[t]he electronic exchange and
use of health information and the enterprise integration of such information,” as well as
“[s]trategies to enhance the use of health information technology in improving the quality of
health care.” Id. § 300jj-11(c)(3)(A).
In 2010, HHS adopted the Meaningful Use program.1 See Medicare and Medicaid
Programs; Electronic Health Record Incentive Program, 75 Fed. Reg. 44314-01 (Jul. 28, 2010).
HHS stated that the program is aimed at using “[c]ertified [electronic health record] technology”
“in a meaningful way” as “one piece of a broader [health-information technology] infrastructure
needed to reform the health care system and improve health care quality, efficiency, and patient
safety.” Id. at 44321. To achieve that goal, payment incentives are provided to certain
healthcare providers “who adopt and meaningfully use certified electronic health record (EHR)
technology.” 42 C.F.R. § 495.2(a).
Over the years, the federal government has incorporated the goals of the Meaningful Use
program into a series of other initiatives, including the Merit-Based Incentive Payment System
(“MIPS”), and the Primary Care First program. See, e.g., 45 C.F.R. § 170.315(e)(3).
B. Procedural History
On March 10, 2023, plaintiff filed a putative class action complaint in the Suffolk County
Superior Court against Atrius. The complaint alleges a single count of intercepting wire
communications in violation of Mass. Gen. Laws ch. 272, § 99. (Compl. ¶ 104-11).
On April 27, 2023, the case was removed to this court pursuant to the federal-officer
removal statute, 28 U.S.C. § 1442(a)(1). On May 26, 2023, plaintiff moved to remand for lack
of subject-matter jurisdiction.
1 The Meaningful Use Program has since been renamed the Promoting Interoperability Program. However,
as the parties use the Program’s original name, the Court will do the same.
II. Legal Standards
A. Motion to Remand
A district court must remand a case to state court if “at any time before final judgment it
appears that the district court lacks subject[-]matter jurisdiction.” 28 U.S.C. § 1447(c). The
removing party bears the burden of establishing federal jurisdiction. Kokkonen v. Guardian Life
Ins. Co. of Am., 511 U.S. 375, 377 (1994).
B. Removal Under § 1442(a)(1)
The federal-officer removal statute provides that a civil action commenced in state court
may be removed if it is against or directed to:
The 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 or on
account of any right, title or authority claimed under any Act of Congress for the
apprehension or punishment of criminals or the collection of the revenue.
28 U.S.C. § 1442(a)(1).
The removing party “bears the burden under § 1442(a)(1) to establish: (1) that it was
acting under a federal officer’s authority; (2) that the charged conduct was carried out for or
relating to the asserted official authority; and (3) that it will assert a colorable federal defense to
the suit.” Moore v. Electric Boat Corp., 25 F.4th 30, 34 (1st Cir. 2022) (internal citations and
quotation marks omitted).
III. Analysis
To succeed in its contention that removal is proper in this case, Atrius must show that it
was “acting under a federal officer’s authority.” Rhode Island v. Shell Oil Prods, 979 F.3d 50,
59 (1st Cir. 2020), summarily vacated on other grounds, 141 S. Ct. 2666, 210 (2021). “‘Acting
under’ connotes ‘subjection, guidance, or control’ and involves ‘an effort to assist, or to help
carry out, the duties or tasks of the federal superior.’” Id. (quoting Watson v. Philip Morris Cos.,
551 U.S. 142, 152 (2007)). “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[,]’ . . . even if the regulation is highly detailed and even if the private
firm’s activities are highly supervised and monitored.” Watson, 551 U.S. at 153.
Here, Atrius contends that its alleged use of Google Analytics and Facebook’s Meta Pixel
tools are part of its effort to comply voluntarily with regulations that assist the government with
its goal of enhancing patient engagement with EHR and supporting the creation of infrastructure
to promote adoption of nationwide interoperable health-information technology. Without more,
that is insufficient to support federal-officer removal, because even “a highly regulated firm
cannot find a statutory basis for removal in the fact of federal regulation alone.” Id.
While a contract or formal delegation might be sufficient to place defendant under a
federal officer’s authority, neither is alleged to be present here. See id. at 153-54; Moore, 25
F.4th at 34 n.3. Instead, Atrius relies on the direction and incentive payments it receives through
the various federal programs as creating something “akin to a government-contractor
relationship.” (Notice ¶ 31).
That is also insufficient. The issue of federal-officer removal in cases involving
healthcare providers such as Atrius that receive incentive payments for increasing patient access
to EHRs is not one of first impression. An overwhelming majority of district courts, including in
this district, have remanded similar data-privacy cases to state courts. See, e.g., Progin v. UMass
Mem’l Health Care, Inc., 2023 WL 4535129, at *4 (D. Mass. July 13, 2023) (“[T]he fact that
incentive payments will, in the future, shift to penalty payments if a provider fails to comply with
the Meaningful Use Program further suggests that this is a regulation rather than a government
contract.”); Quinto v. Regents of Univ. of California, 2023 WL 1448050, at *2 (N.D. Cal. Feb. 1,
2023) (“[R]eceiving incentive payments for acting in a way that promotes a broad federal
interest—in an area outside the traditional responsibility of the federal government—is not the
same as being contracted to carry out, or assist with, a basic governmental duty.”); Doe v. BJC
Health Sys., 2023 WL 369427, at *4 (E.D. Mo. Jan. 10, 2023); Doe v. Cape Cod Healthcare,
Inc., No. 23-cv-10080, slip op. at 10 (D. Mass. Jan. 25, 2023); Crouch v. Saint Agnes Med. Ctr.,
2023 WL 3007408, at *4 (E.D. Cal. Apr. 19, 2023); Mohr v. Trustees of Univ. of Pennsylvania,
2023 WL 3044594, at *5 (E.D. Pa. Apr. 20, 2023); Browne v. Cedars-Sinai Health Sys., 2023
WL 3095551, at *3 (C.D. Cal. Apr. 26, 2023); Beltran v. Cedars-Sinai Health Sys., 2023
WL 3620740, at *3 (C.D. Cal. May 24, 2023).
Defendant cites two district-court decisions that agree with its theory of federal-officer
jurisdiction. (See Notice ¶ 12 (citing Doe v. UPMC, 2020 WL 4381675 (W.D. Pa. July 31,
2020); Doe v. ProMedica Health Sys., Inc., 2020 WL 7705627 (N.D. Ohio Oct. 30, 2020))).
However, these opinions are unpersuasive and inapposite given the precedent in this circuit. See
Moore, 25 F.4th at 34; Rhode Island, 979 F.3d at 60.
Atrius’s compliance in exchange for incentive payments under the Meaningful Use
program, MIPS, or the Primary Care First program does not constitute “assist[ing]” the federal
government in the “duties or tasks of the federal superior.” Rather, Atrius is a private entity that
voluntarily participates in federal incentive programs for its own financial gain. Activity of that
sort does not fall within the ambit of the federal-officer removal statute. Accordingly, remand to
Massachusetts state court is proper. Because that factor is dispositive, the Court need not
consider whether Atrius’s actions “relat[e] to the asserted official authority” or whether “it will
assert a colorable federal defense to the suit.”
IV. Conclusion
For the foregoing reasons, the Court finds that it lacks subject-matter jurisdiction over
this matter, and the matter is not removable under 28 U.S.C. § 1442(a)(1). Plaintiffs’ motion to
remand is therefore GRANTED.
So Ordered.
/s/ F. Dennis Saylor IV
F. Dennis Saylor IV
Dated: October 25, 2023 Chief Judge, United States District Court