Gibson v. Stanford Health Care

Background

Davina Gibson filed a proposed class action against Stanford Health Care in the Santa Clara County Superior Court. She asserted three California privacy claims on behalf of herself and California residents who used Stanford’s online patient portal:

Gibson alleged that Stanford’s website included the Facebook Tracking Pixel, code obtained from Facebook. According to the complaint, when patients used Stanford’s portal, their browsers secretly sent Facebook information duplicating the communication with Stanford, along with information about the communication and the user’s identity. Gibson alleged that the transmitted communications contained protected health information and that she had not agreed to its disclosure to Facebook.

Stanford removed the case to federal court under 28 U.S.C. § 1442(a)(1), known as the federal officer removal statute. That statute permits removal of certain cases against a federal officer or a person acting under a federal officer. Stanford argued that the lawsuit concerned actions it took while participating in the voluntary federal Meaningful Use Program, under which eligible health-care providers could receive incentive payments for facilitating patients’ online access to health records.

Motion to Remand

Gibson argued that Stanford was not acting under a federal officer when it allegedly violated patients’ privacy rights. The complaint contained only state-law claims, and the court stated that it did not disclose a basis for federal-question or diversity jurisdiction.

To remove the case under § 1442(a)(1), Stanford had to show that it was a person covered by the statute, that a causal connection existed between actions taken under a federal officer’s direction and Gibson’s claims, and that Stanford could assert a colorable federal defense. Gibson’s motion challenged only the causal-nexus requirement. The court therefore limited its discussion to whether Stanford was acting under a federal officer in carrying out the conduct at issue.

The court explained that relevant factors include whether the private party acted on behalf of a federal officer in a relationship similar to an agency relationship; whether the federal officer closely directed, guided, controlled, regulated, monitored, or supervised the party; whether the party assisted the government with a basic governmental task; and whether the activity was closely related to the government’s federal duties in a way that created a significant risk of state-court prejudice.

Stanford argued that its receipt of incentive payments, compliance with the Meaningful Use Program’s framework and guidelines, reporting about portal activities, and assistance in creating online access to health records satisfied those factors. Stanford also argued that state-court litigation threatened federal operations and programs.

Court’s Analysis and Ruling

The court found Stanford’s arguments insufficient. It relied on several district court decisions involving similar allegations that health-care providers sent patient information to Facebook through the Facebook Tracking Pixel. Those decisions concluded that receiving incentive payments, furthering a federal goal, or complying with a federal regulatory program did not establish that a private entity was acting under a federal officer. The court also cited Ninth Circuit authority stating that mere compliance with federal directives does not satisfy the acting-under requirement, even when actions are supervised and monitored.

The court held that Stanford’s voluntary participation in the Meaningful Use Program did not establish that Stanford was acting under a federal officer when it created and implemented its patient portal, particularly when it chose to integrate the Facebook Tracking Pixel. The court declined to follow two out-of-circuit decisions that Stanford cited because it viewed those decisions as applying an overly broad interpretation of the acting-under requirement.

The court GRANTED Gibson’s motion to remand. It ordered the Clerk to remand the case to the Santa Clara County Superior Court and close the federal file. The order also terminated ECF 10.