The opinion
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
JARROD BROWNE, individually CV 23-01551 DSF (JPRx)
and on behalf of all other persons
similarly situated, Order GRANTING Motion to
Plaintiff, Remand (Dkt. 14)
v.
CEDARS-SINAI HEALTH
SYSTEM, et al.,
Defendants.
Plaintiff Jarrod Browne moves to remand this action to the
Superior Court of California, County of Los Angeles. Dkt. 14 (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 January 10, 2023, Plaintiff Jarrod Browne filed a class action
lawsuit on behalf of himself and all others similarly situated, alleging
that Cedars-Sinai aided, employed, agreed, and conspired with
Facebook to intercept communications sent and received by Browne
and class members, including communications containing protected
medical information, without their knowledge, consent, or express
written authorization. See Dkt. 1-1, Ex. A at 4 (Compl.). Browne
alleges that Cedars-Sinai utilizes Facebook’s Tracking Pixel, a
Facebook Business Tool that tracks people and the types of actions they
take, which allows Facebook to duplicate patient communication with
Cedars-Sinai and transmit it to Facebook’s servers. Id. ¶¶ 29-30. After
Facebook collects and intercepts the information, it analyzes the data
and assimilates it into datasets like Core Audiences and Custom
Audiences. Id. ¶ 31. Browne alleges that through Facebook Pixel,
Cedars-Sinai shares its patients’ identities and online activity,
including personally identifiable information and search results related
to their private medical treatment. Id. ¶¶ 32-34.
Browne asserts the following causes of action: (1) violation of
California’s Invasion of Privacy Act, Cal. Penal Code §§ 630, et seq.; (2)
violation of California’s Confidentiality of Medical Information Act, Cal.
Civ. Code §§ 56, et seq.; and (3) invasion of privacy in violation of the
California Constitution. Id. ¶¶ 55-83. On March 1, 2023, Cedars-Sinai
removed the case to federal district court 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 3-4. It argues that it qualifies as a “person” under the statute
and has acted under a federal officer. Id. at 6-9.
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 4. 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 5. 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 7. Cedars-Sinai also contends that in the
1 The Court GRANTS Cedars-Sinai’s unopposed request for judicial notice.
See Dkt. 18.
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.
Browne 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 while creating their
patient portal. Id. at 7. Browne also asserts that language in Cedars-
Sinai’s notice of removal demonstrates that the MUP was optional, not
mandated, as required to “transform a public entity into a federal
officer,” and that there is nothing to suggest that Cedars-Sinai was
ordered by the government to implement the Facebook Pixel on the
portal at issue and transmit highly sensitive patient information to
Facebook without patients’ knowledge or consent. Id. at 7-8.
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. It specifically contends that “driving website traffic to
the patient portal assists the federal government in carrying out its
federal mission to create a unified system for patient electronic health
records.” Id. at 7. Cedars-Sinai also argues that participation in the
MUP is sufficient to satisfy the “acting under” requirement, and that
its actions go well beyond that of merely complying with federal laws
and regulations. Id. at 20. The Court is not persuaded.
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 v. Chevron Corp., 32 F.4th 733, 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.
Date: April 26, 2023 Oka Ar. AW
Dale S. Fischer
United States District Judge