The opinion
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
JOHN DOE, on behalf of himself CV 23-870 DSF (JPRx)
and all others similarly situated,
Plaintiff, Order GRANTING Motion to
Remand (Dkt. 13)
v.
CEDARS-SINAI HEALTH
SYSTEM, et al.,
Defendants.
Plaintiff John Doe moves to remand this action to the Superior
Court of California, County of Los Angeles. Dkt. 13 (Mot.). Defendants
Cedars-Sinai Health System and Cedars-Sinai Medical Center
(collectively Cedars-Sinai) oppose. Dkt. 17 (Opp’n). The Court deems
this matter appropriate for decision without oral argument. See Fed.
R. Civ. P. 78; Local Rule 7-15.
I. BACKGROUND
On December 30, 2022, Plaintiff John Doe filed a class action
lawsuit on behalf of himself and all others similarly situated, alleging
that Cedars-Sinai disclosed their private information, without their
knowledge or consent, to Meta, Google, Microsoft Bing, and other
marketing and social medial platforms or businesses. See Dkt. 1-1, Ex.
A at 3 (Compl.). Doe alleges that Cedars-Sinai transmitted portions of
patients’ private communications with it through tracking code
embedded in its website and mobile application, to third parties for the
sole purpose of sharing such information with marketing entities. Id.
¶¶ 1, 4. Cedars-Sinai installed the tracking code to obtain insight
about how patients and potential patients use its website. Id. ¶ 5.
Moreover, “[b]y installing the tracking code . . . Cedars-Sinai enabled
the marketing entities to use patients’ Private Information to target
them with advertising by yet other, unrelated businesses.” Id. ¶ 6.
Doe asserts the following causes of action: (1) violations of
California’s Invasion of Privacy Act, Cal. Penal Code §§ 630, et seq.; (2)
invasion of privacy in violation of the California Constitution, Article 1,
§ 1 and California common law; (3) breach of implied contract; (4)
breach of contract; (5) breach of implied covenant of good faith and fair
dealing; (6) negligence; (7) violation of California’s Confidentiality of
Medical Information Act, Cal. Civ. Code §§ 56, et seq.; and (8) violation
of the California UCL, Cal. Bus. & Prof. Code §§ 17200, et seq. Id. ¶¶
140-238. On February 3, 2023, Cedars-Sinai removed the case
pursuant to 28 U.S.C. § 1442(a)(1), the federal officer removal statute.
See Dkt. 1.
II. LEGAL STANDARD
A defendant may remove to federal court a state court action
brought against 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, sued in an official or individual capacity for any act
under color of such office . . . .” 28 U.S.C. § 1442(a)(1); Watson v. Philip
Morris Cos., Inc., 551 U.S. 142, 145 (2007). Federal officer removal is
available under 28 U.S.C. § 1442(a) if “(a) [the removing party] 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.’”
Fidelitad, Inc. v. Insitu, Inc., 904 F.3d 1095, 1099 (9th Cir. 2018).
III. DISCUSSION1
Cedars-Sinai asserts that “[o]ver the past two decades, the
federal government has engaged in an extensive effort to build a
nationwide health information technology infrastructure,” and this case
challenges the legitimacy of actions Cedars-Sinai “has taken in
connection with pursuing that directive.” Dkt. 1 at 1. Cedars-Sinai
contends that it has dutifully assisted and followed the federal
government’s direction as part of a public-private initiative to develop a
nationwide infrastructure for health information technology, and in
doing so, “has acted within the penumbra of federal action and office.”
Id. at 4. Cedars-Sinai argues that it qualifies as a “person” under the
statute and has acted under a federal officer. Id. at 7-10.
Cedars-Sinai explains that the Office of the National Health
Coordinator for Health Information Technology (ONC) published
guidance for private providers to follow, including a five-year strategic
plan that dictated that federal agencies were to collaborate with private
stakeholders to build a culture of electronic health information access
and use. Id. at 5. One aspect of the strategy was the Centers for
Medicare & Medicaid Services’ (CMS) Meaningful Use Program (MUP),
which is aimed at increasing patients’ meaningful use and engagement
with electronic health records through the creation of patient portals.
Id. at 6. Under the program, “providers must meet certain criteria to
receive full Medicare reimbursement, one of which is having an
interoperable patient portal.” Id.
Cedars-Sinai asserts that it is acting under a federal officer
because the federal government incentivizes, regulates, monitors, and
supervises its actions as part of the MUP “in order to meet the federal
government’s national priority of interoperable health information
technology,” and Cedars-Sinai is helping the government produce the
“nationwide, interoperable information technology infrastructure for
health information.” Id. at 8. Cedars-Sinai also contends that in the
1 The Court GRANTS Cedar-Sinai’s unopposed request for judicial notice.
See Dkt. 18 at 4
absence of its actions, the government “would be left alone to complete
its mission,” that the government has specified how to best enhance
patient engagement, including through a patient portal, and that the
government has created an office dedicated to this issue and has closely
monitored the work of private entities like Cedars-Sinai. Id. at 8-9.
Doe argues that the case should be remanded to state court
because Cedars-Sinai has not met its burden of establishing that its
actions were taken pursuant to a federal officer’s directions. Mot. at 1.
He argues that Cedars-Sinai is not acting on behalf of a federal officer
in a manner akin to an agency relationship because “merely
‘performing some functions that a government agency controls is not
enough to transform a private entity into a federal officer.’” Id. at 6
(citing Romeo v. Canoga Healthcare, Inc., No. CV 21-02918-AB (RAOx),
2021 WL 3418730, at *2 (C.D. Cal. Aug. 5, 2021)). He contends that
nothing in Cedars-Sinai’s notice of removal indicates it was authorized
to act for or in place of the federal government or that the federal
government delegated its authority to Cedars-Sinai to act on its behalf.
Id. at 7. Doe also argues that Cedars-Sinai’s pursuit of full Medicare
reimbursement through the MUP does not qualify “as acting under the
subjection, guidance, or control of the officer,” nor does it place Cedars-
Sinai in “a relationship which ‘is an unusually close one involving
detailed regulation, monitoring, or supervision.’” Id. at 8 (citing Cnty.
of San Mateo v. Chevron Corp., 32 F.4th 733, 756 (9th Cir. 2022)).
Cedars-Sinai asserts in opposition that it assisted the federal
government in carrying out a federal directive by increasing web traffic
to its website, which contains a link to a patient portal. Opp’n at 6. It
asserts that its “alleged efforts were in furtherance of implementing the
federal government’s goal” and are sufficient to effectuate removal to
this Court. Id. Cedars-Sinai also asserts that it gave patients the
opportunity to access their personal electronic health records with
Cedars-Sinai through a My CS-Link patient portal and submitted
reports on its involvement in the MUP to CMS. Id. at 11-12.
The Court agrees with Doe. The Supreme Court has “interpreted
the term ‘person acting under that officer’ as extending to a ‘private
person’ who has certain types of close relationships with the federal
government.” Cnty. of San Mateo, 32 F.4th at 756 (9th Cir. 2022)
(citing Watson, 551 U.S. at 152-53). “The Supreme Court has identified
a number of factors courts should consider in determining whether a
private person is acting under a federal officer for purposes of §
1442(a)(1).” Id. The Court considers: (1) “whether the person is acting
on behalf of the officer in a manner akin to an agency relationship”; (2)
“whether the person is subject to the officer’s close direction, such as
acting under the subjection, guidance, or control of the officer, or in a
relationship which is an unusually close one involving detailed
regulation, monitoring, or supervision”; (3) “whether the private person
is assisting the federal officer in fulfilling basic governmental tasks
that the Government itself would have had to perform if it had not
contracted with a private firm”; and (4) “whether the private person’s
activity is so closely related to the government’s implementation of its
federal duties that the private person faces a significant risk of state-
court ‘prejudice, just as a government employee would in similar
circumstances, and may have difficulty in raising an immunity defense
in state court.” Id. at 756-57 (internal quotation marks and citations
omitted).
However, “[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.” Watson, 551
U.S. at 153. Courts “may not interpret § 1442(a) so as to ‘expand the
scope of the statute considerably, potentially bringing within its scope
state-court actions filed against private firms in many highly regulated
industries.’” Cnty. of San Mateo, 32 F.4th at 757 (quoting Watson, 551
U.S. at 153). The directions Cedars-Sinai points to are general
regulations and public directives regarding the development of health
information technology and an electronic health records infrastructure.
Therefore, removal is not justified by federal officer jurisdiction.
IV. CONCLUSION
The motion to remand is GRANTED. The case is REMANDED to
the Superior Court of California, County of Los Angeles.
IT IS SO ORDERED.
fy
Date: April 24, 2023 Kile A. JercAw
Dale S. Fischer
United States District Judge