Doe v. Washington Township Health Care District

Background

Jane Doe and Jan Doe, along with putative class members, sued Washington Township Health Care District and other defendants in the Superior Court of California, County of Alameda. The plaintiffs alleged that the defendants used Facebook’s Meta Pixel tracking tool and Facebook’s Conversions Application Programming Interface on their websites and patient portal. According to the allegations, those tools transmitted personal and identifying information to Facebook and other third parties for advertising and marketing purposes.

The plaintiffs asserted California statutory, constitutional, and common-law privacy claims, as well as claims involving unjust enrichment and unfair competition. The parties were not diverse. The defendants removed the case to federal court under the federal officer removal statute, 28 U.S.C. § 1442(a), arguing that they acted under federal direction through their participation in the federal Meaningful Use Program, now known as the Promoting Interoperability Program. The plaintiffs moved to remand, arguing that the defendants had not established federal officer jurisdiction.

Legal standard

The federal officer removal statute permits removal of a state-court action against a person acting under a federal officer for an act related to that role. The court explained that a removing party must show that it is a person covered by the statute, that a causal connection exists between federally directed actions and the plaintiff’s claims, and that it has a legally plausible federal defense.

The court focused on whether the defendants were “acting under” a federal officer. It considered whether the defendants acted on behalf of a federal officer in a relationship similar to an agency relationship; whether the federal government closely directed or controlled their conduct; whether they assisted with basic governmental tasks the government otherwise would have performed; and whether they faced a significant risk of prejudice in state court.

Court’s analysis

The court found that the defendants’ development of their website and patient portal, and especially their use of the specific tracking technologies at issue, did not establish an agency-like relationship with a federal officer. This factor did not favor removal.

The court also held that the defendants’ voluntary participation in the Meaningful Use Program did not show close federal direction. The program provided incentives, guidance, and compliance requirements, but the court concluded that merely complying with federal laws, rules, or regulations—even under detailed supervision—does not by itself satisfy the “acting under” requirement. The court found that the defendants were not acting under a federal officer when they created and implemented their website and portal or chose to integrate the Meta Pixel and Facebook’s CAPI. This factor weighed strongly against removal.

The court further found that the defendants had not shown they were performing basic governmental tasks that the federal government otherwise would have performed itself. The financial incentives encouraged private entities to adopt health-information technology; they were not compensation for performing governmental services. This factor also weighed against removal.

Finally, the court found no relevant risk of prejudice in state court. A private entity’s compliance with a regulatory order does not necessarily create such a risk, and the lawsuit was not likely to hinder federal employees enforcing federal law. This factor also weighed against removal.

Disposition

The court concluded that none of the “acting under” factors favored removal and that the defendants had not met that requirement of section 1442. Because of that conclusion, the court did not reach the causal-connection or legally plausible federal-defense requirements.

The court granted the plaintiffs’ motion to remand. The action was remanded to the Superior Court of California, County of Alameda. Judge Susan Illston vacated the scheduled hearing because she determined the motion could be resolved without oral argument.