The opinion
JS-6
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
STEVEN BELTRAN AND LISA CV 23-02626 DSF (JPRx)
REINGOLD, individually and on
behalf of all others similarly Order GRANTING Motion to
situated, Remand (Dkt. 12)
Plaintiffs,
v.
CEDARS-SINAI HEALTH
SYSTEM, et al.,
Defendants.
Plaintiffs Steven Beltran and Lisa Reingold move to remand this
action to the Superior Court of California, County of Los Angeles. Dkt.
12 (Mot.). Defendants Cedars-Sinai Health System and Cedars-Sinai
Medical Center (collectively Cedars-Sinai) oppose. On April 26, 2023,
the Court issued an order approving the parties’ Stipulation Regarding
Briefing and Hearing on Plaintiffs’ Motion to Remand. See Dkt. 17
(Order). The parties stipulated to adopting briefings from Browne v.
Cedars-Sinai Health System, et al., Case No. 2:23-cv-01551 and giving
them effect “in this action for purposes of the briefing on, and the
Court’s adjudication of, Plaintiffs’ Motion to Remand[.]” Id. at 2. The
Court deems this matter appropriate for decision without oral
argument. See Fed. R. Civ. P. 78; Local Rule 7-15.
I. BACKGROUND
On February 23, 2023, Plaintiffs filed a class action lawsuit on
behalf of themselves and all others similarly situated “for damages
arising from Defendants’ implementation of software code, embedded in
websites and apps maintained and controlled by Defendants, which
was created for the purpose of capturing, storing, and sharing the
personal data of Plaintiffs and similarly situated consumers.” See Dkt.
1-1, Ex. A at 3 (Compl.) ¶ 1. Plaintiffs allege that Cedars-Sinai
“knowingly implemented and configured tracking code, such as the
Facebook Pixel, to disclose the identities and communications of its
patients to Facebook and third parties.” Id. ¶ 10. They allege that
Cedars-Sinai implemented the tracking code “with the knowledge and
intent to specifically identify their patients to Facebook and third
parties alongside their protected health information and geographic
location, in direct and patent violation and disregard of the rights of
Plaintiffs and Class Members.” Id.
Plaintiffs assert the following causes of action: (1) negligence; (2)
negligence per se; (3) breach of implied contract; (4) breach of implied
covenant of good faith and fair dealing; (5) breach of fiduciary duty; (6)
breach of duty; (7) violation of California’s Invasion of Privacy Act, Cal.
Penal Code §§ 630, et seq.; (8) violation of California’s Confidentiality of
Medical Information Act, Cal. Civ. Code § 56.10; (9) invasion of privacy
in violation of the California Constitution; and (10) violation of the
California Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200, et
seq. Id. ¶¶ 64-145. On April 7, 2023, Cedars-Sinai removed the case
pursuant to 28 U.S.C. § 1442(a)(1), the federal officer removal statute.
II. LEGAL STANDARD
A defendant may remove 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. It argues that it qualifies as a “person” under the statute and
has acted under a federal officer. Id. at 10-13.
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 9. The Department of Health and Human Services also
adopted the Meaningful Use regulations. Id. at 7. A central component
of the Meaningful Use regulations was the ability for patients to access
their health care records online, and the regulations “required health
care providers to attest to the National Coordinator and to the Centers
for Medicare and Medicaid Services on their progress with respect to
this criteria in particular.” Id. at 7-8. Cedars-Sinai contends that since
establishing a patient portal, it “has continually met the Meaningful
1 The Court GRANTS Cedars-Sinai’s unopposed request for judicial notice.
See Request for Judicial Notice, Browne v. Cedars-Sinai Health System, et
al., No. 2:23-cv-01551 (C.D. Cal. Apr. 10, 2023), Dkt. 18.
Use criteria, and has thus received incentive payments from the federal
government.” Id. at 10.
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 Meaningful Use program “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 11-12.
Cedars-Sinai also contends that in the 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 12.
Plaintiffs argue that the case should be remanded because
Cedars-Sinai has not met its burden of establishing that its actions
were taken pursuant to a federal officer’s directions. Notice of Motion
and Motion to Remand at 1, Browne v. Cedars-Sinai Health System, et
al., No. 2:23-cv-01551 (C.D. Cal. Mar. 27, 2023), Dkt. 14. They argue
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)). They contend 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. They assert that language in Cedars-Sinai’s notice of removal
demonstrates that the Meaningful Use program 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. Defendants’
Opposition to Plaintiff’s Motion to Remand at 6, Browne v. Cedars-
Sinai Health System, et al., No. 2:23-cv-01551 (C.D. Cal. Apr. 10, 2023),
Dkt. 17. 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 Gnternal 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.
i ‘ ~~ )
/ jd.
Date: May 24, 2023 hoo AD - □□□ A
Dale S. Fischer
United States District Judge