I. INTRODUCTION

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25 On January 13, 2023, Plaintiff Jane Doe filed a putative class action in the Superior 26 Court of California, County of Orange against Defendant Hoag Memorial Presbyterian 27 Hospital, alleging that Defendant’s online practices effectuate various invasions of 1 privacy. (See Dkt. 1-1 [Exhibit A to Notice of Removal, hereinafter “Compl.”].) 2 Defendant removed the case to this Court on March 10, 2023, pursuant to the federal 3 officer removal statute, 28 U.S.C. § 1442(a)(1). (See Dkt. 1 [Notice of Removal, 4 hereinafter “NOR”] ¶ 10.) Now before the Court is Plaintiff’s motion to remand the case. 5 (See Dkt. 12 [Notice of Motion and Motion to Remand Case, hereinafter “Mot.”].) For 6 the following reasons, Plaintiff’s motion is GRANTED.1 7 8 II. BACKGROUND 9 10 According to Defendant, it uses a tool provided by Facebook called Meta Pixel as a 11 component of its “website analytics practices” to “drive patients to the [Defendant’s] 12 websites and to the patient portal.” (NOR ¶ 45.) Defendant asserts that the federal 13 government, through the “Meaningful Use” program, has “incentivized and directed 14 providers who participate in the Medicare and Medicaid program (like [Defendant]) to 15 offer patients online access to their [health] records, and to optimize patient engagement 16 with their medical information.” (Id. ¶ 12; see also id. ¶ 23 [citing 42 C.F.R. §§ 17 495.2(f)(12)(i)(B)].) As part of that program, the federal government gives incentive 18 payments to healthcare providers who promote patient engagement through the 19 “meaningful use of certified [electronic health record] technology.” 42 U.S.C. §§ 1395w- 20 4(o), 1395ww(n); see also 42 C.F.R. §§ 495.20–495.24. The federal government also 21 provided guidance about how private providers could optimize their online health portals, 22 and offered a model for providers to follow that used third-party marketers like Facebook 23 to increase engagement. (See NOR ¶ 30.) 24 25 26

27 1 Having read and considered the papers presented by the parties, the Court finds this matter appropriate 1 Plaintiff alleges that “[s]ince at least 2020, Defendant has disclosed information 2 about prospective and actual patients . . . to Facebook and other third parties without [the 3 patients’] knowledge, authorization, or consent.” (Compl. ¶ 3.) Specifically, she asserts 4 that “Defendant discloses . . . protected health information through the deployment of 5 various digital marketing and automatic rerouting tools embedded on its websites that 6 purposefully and intentionally redirect Personal Health Information to Facebook, which 7 exploits that information for advertising purposes.” (Id. ¶ 4.) This is accomplished using 8 the Meta Pixel tool, which Plaintiff alleges is installed on “almost every page” of 9 Defendant’s website. (Id. ¶ 16.) As a result, “[e]ach time” Plaintiff or any other putative 10 class member entered a search term on Defendant’s website, “Meta Pixel recorded the 11 information she entered and transmitted it to Facebook, along with identifying 12 information that let Facebook know exactly who [Plaintiff] was.” (Id.) 13 14 III. LEGAL STANDARD 15 16 “Federal courts are courts of limited jurisdiction,” possessing “only that power 17 authorized by Constitution and statute.” Gunn v. Minton, 568 U.S. 251, 256 (2013) 18 (internal quotations omitted). A suit filed in state court may be removed to federal court 19 if the federal court would have had original jurisdiction over the suit. See 28 U.S.C. 20 § 1441(a). A removed action must be remanded to state court if the federal court lacks 21 subject matter jurisdiction. See id. § 1447(c). “The burden of establishing federal 22 jurisdiction is on the party seeking removal, and the removal statute is strictly construed 23 against removal jurisdiction.” Prize Frize, Inc. v. Matrix (U.S.) Inc., 167 F.3d 1261, 1265 24 (9th Cir. 1999). Accordingly, “[f]ederal jurisdiction must be rejected if there is any doubt 25 as to the right of removal in the first instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 26 (9th Cir. 1992). 27 1 A defendant may remove an action to federal court when it is brought against the 2 “United States or any agency thereof or any officer (or any person acting under that 3 officer) of the United States or of any agency thereof, sued in an official or individual 4 capacity for any act under color of such office.” 28 U.S.C. § 1442(a)(1); see also Watson 5 v. Philip Morris Cos., Inc., 551 U.S. 142, 145 (2007). Federal officer removal is 6 available under Section 1442(a) if “(a) [the removing party] is a ‘person’ within the 7 meaning of the statute; (b) there is a causal nexus between its actions, taken pursuant to a 8 federal officer’s directions, and plaintiff’s claims; and (c) it can assert a ‘colorable federal 9 defense.’” Fidelitad, Inc. v. Insitu, Inc., 904 F.3d 1095, 1099 (9th Cir. 2018). The statute 10 “responds to three general concerns: (1) ‘State-court proceedings may reflect “local 11 prejudice” against unpopular federal laws or federal officials’; (2) ‘States hostile to the 12 Federal Government may impede’ federal law; and (3) ‘States may deprive federal 13 officials of a federal forum in which to assert federal immunity defenses.’” Fidelitad, Inc. 14 v. Insitu, Inc., 904 F.3d 1095, 1099 (9th Cir. 2018) (quoting Watson, 551 U.S. at 150). 15 Section 1442 is liberally construed to address these issues, but is not limitless in scope. 16 See id. (citing Watson, 551 U.S. at 147); see also Geisse v. Bayer HealthCare Pharms. 17 Inc., 2019 WL 1239854, at *4 (N.D. Cal. Mar. 18, 2019). 18 19 IV. DISCUSSION2 20 21 Defendant asserts that it is entitled to be treated like a federal officer because in 22 helping the federal government “develop a nationwide infrastructure for health 23 information technology,” it “acted within the penumbra of federal action and office.” 24 (NOR ¶¶ 12, 13.) Plaintiff responds that “providing patient records is a private function, 25 2 As a preliminary matter, Defendant has requested that the Court take judicial notice of various public 26 government documents relating to the Meaningful Use Program, such as the Office of the National 27 Coordinator for Health Information Technology’s 2011-2015 Federal Health Information Technology Strategic Plan. (See Dkt. 14 [Request for Judicial Notice].) The Court will grant Defendant’s request. 1 not a governmental task, and mere regulation or incentives through the Meaningful Use 2 Program cannot turn a private hospital into an entity ‘acting under’ a federal officer.” 3 (Mot. at 10.) 4 5 For 28 U.S.C. § 1442(a) to apply, Defendant must establish that while “acting 6 under” the direction of a federal officer, it engaged in conduct that had a causal 7 connection to Plaintiff’s claims. See 28 U.S.C. § 1442(a)(1); see also Durham v. 8 Lockheed Martin Corp., 445 F.3d 1247, 1251 (9th Cir. 2006). The Supreme Court has 9 stated that the phrase “acting under” refers to “an effort to assist, or to help carry out, the 10 duties or tasks of the federal superior,” and describes “a relationship typically involv[ing] 11 subjection, guidance, or control.” Watson, 551 U.S. at 151–52. The Ninth Circuit has 12 identified several factors relevant to assessing whether a private entity was acting under a 13 federal officer’s directions, including whether the entity (1) “is acting on behalf of the 14 officer in a manner akin to an agency relationship,” (2) “is subject to the officer’s close 15 direction,” (3) “is assisting the federal officer in fulfilling basic governmental tasks that 16 the Government itself would have had to perform if it had not contracted with a private 17 firm,” and (4) is engaged in “activity [that] is so closely related to the government’s 18 implementation of its federal duties that the private person faces a significant risk of 19 state-court prejudice, just as a government employee would in similar circumstances.” 20 Cnty. of San Mateo v. Chevron Corp., 32 F.4th 733, 756–57 (9th Cir. 2022) (internal 21 quotations and citations omitted). 22 23 Defendant has not shown that it acted under the direction of a federal officer or 24 agency. Defendant relies on the fact that “[t]he federal government is incentivizing, 25 regulating, monitoring, and supervising [Defendant’s] actions in the Meaningful Use 26 program in order to meet the federal government’s national priority of interoperable 27 health information technology.” (NOR ¶ 37.) It argues that “in the absence of [its] 1 ¶ 39), and that “[c]ourts within the Ninth Circuit have regularly accepted cases removed 2 under the federal officer removal statute in circumstances where, like here, the entity 3 ‘assist[ed]’ or ‘help[ed] carry out’ the tasks of the federal government,” (Opp. at 18 4 [citation omitted]). But the cases Defendant cites in support of that proposition, (see id.), 5 involved situations in which a private party was contracted to carry out a function that the 6 federal government would otherwise be obligated to do itself, such as administering 7 Medicare benefits or administering a health benefits plan for federal employees. That is 8 not the situation here. If hospitals did not digitize their patient records, the federal 9 government would be under no obligation to carry out the task itself. In other words, 10 “[d]espite the federal government’s expressed desire to encourage ‘the implementation of 11 interoperable health information technology infrastructure,’ [the Meaningful Use 12 program] neither authorizes nor obligates the federal government to create such an 13 infrastructure itself.” Doe, I v. BJC Health Sys., 2023 WL 369427, at *4 (E.D. Mo. Jan. 14 10, 2023); see also id. (“[I]t cannot be said that [the defendant’s] creation of a website 15 and online patient portal fulfills a ‘basic government task’ that the federal government 16 itself would otherwise be required to carry out.”). 17 18 Furthermore, mere compliance with federal regulations, “even if the regulation is 19 highly detailed and even if the private firm’s activities are highly supervised and 20 monitored,” does not fall within the scope of Section 1442(a). Watson, 551 U.S. at 153. 21 Thus, while the Meaningful Use program may subject private entities like Defendant to 22 some degree of government control, “‘simply complying’ with a law or regulation is not 23 enough to ‘bring a private person within the scope of the statute.’” Saldana v. Glenhaven 24 Healthcare LLC, 27 F.4th 679, 684 (9th Cir. 2022) (citation omitted); see also Jalili- 25 Farshchi v. Aldersly, 2021 WL 6133168, at *4 (N.D. Cal. Dec. 29, 2021). 26 27 Indeed, multiple other courts in this circuit have rejected arguments identical to 1 insufficient to support federal officer removal. See, e.g., Quinto v. Regents of Univ. of 2 California, 2023 WL 1448050, at *2 (N.D. Cal. Feb. 1, 2023) (rejecting federal officer 3 removal when the defendant hospital argued that it “use[d] the Facebook Tracking Pixel 4 as part of its broader effort to assist the federal government in achieving its ‘mission of a 5 nationwide digitized healthcare system’” (citation omitted)); Heard v. Torrance Mem’l 6 Med. Ctr., 2023 WL 2475544, at *2 (C.D. Cal. Mar. 13, 2023) (rejecting federal officer 7 removal when the defendant argued that “the federal government incentivizes, regulates, 8 monitors, and supervises [the defendant’s] actions as part of the [Meaningful Use 9 Program] ‘in order to meet the government’s national priority of interoperable health 10 information technology,’ and [the defendant] is helping the government produce the 11 ‘nationwide, interoperable information technology infrastructure for health information’” 12 (citation omitted)); Crouch v. Saint Agnes Med. Ctr., 2023 WL 3007408, at *4 (E.D. Cal. 13 Apr. 19, 2023) (same). 14 15 Defendant argues that these cases failed to properly consider the fact that as a 16 participant in the Meaningful Use program, “it is not merely subject to a regulatory 17 scheme, but rather has been paid incentive benefits by the federal government to fulfill 18 the government’s own mission of developing a nationwide electronic health records 19 system.” (Opp. at 19.) But both Quinto and Crouch considered that fact and determined 20 that “receiving incentive payments for acting in a way that promotes a broad federal 21 interest . . . is not the same as being contracted to carry out, or assist with, a basic 22 governmental duty.” Quinto, 2023 WL 1448050, at *2; see also Crouch, 2023 WL 23 3007408, at *5. The Court agrees with their reasoning. 24 25 In short, Defendant has established only that it is subject to “highly detailed” 26 regulations and that its “activities are highly supervised and monitored.” See Watson, 27 551 U.S. at 152. That is not sufficient to invoke federal officer removal.

CONCLUSION

2 3 For the foregoing reasons, Plaintiff's motion to remand is GRANTED. This 4 ||action is hereby REMANDED back to the Superior Court of the State of California, 5 ||County of Orange. 6 7 DATED: May 2, 2023 Lo pe 8 ST fe 9 CORMAC J. CARNEY 10 UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28