Doe v. BJC Health Sys.

89 F.4th 1037

John DOE, I, et al., Plaintiffs - Appellees v. BJC HEALTH SYSTEM, doing business as BJC Healthcare, Defendant - Appellant

No. 23-1107

United States Court of Appeals, Eighth Circuit

Submitted: September 20, 2023

Filed: December 28, 2023

Appeal from United States District Court for the Eastern District of Missouri - St. Louis

Counsel who presented argument on behalf of the appellant and appeared on the brief was David Alan Carney, of Cleveland, OH. The following attorneys also appeared on the appellant brief; John D. Comerford, of Saint Louis, MO., Paul G Karlsgodt, of Denver, CO., and Adam Joseph Simon, of Saint Louis, MO.

Counsel who presented argument on behalf of the appellee was Jennifer M. Paulson, of Alton, IL. The following attorneys appeared on the appellee brief; Amy Collignon Gunn, of Saint Louis, MO., Jason Owen Barnes, of New York, NY., Elizabeth S. Lenivy, of Saint Louis, MO. and Eric S. Johnson, of New York, NY.

Before SMITH, Chief Judge, MELLOY and ERICKSON, Circuit Judges.

SMITH, Chief Judge.

Plaintiffs brought this putative class action against BJC Health System (BJC) in Missouri state court. They claim that, when they visited BJC's online patient portal to access electronic health records (EHRs), BJC shared their protected health information (PHI) with third-party marketing services in violation of Missouri law.

After being sued in state court, BJC invoked the federal officer removal statute, 28 U.S.C. § 1442(a)(1), and removed this case to federal court. BJC argues that it is eligible for federal officer removal because, when it created and operated its online patient portal, it acted under the United States Department of Health and Human Services (HHS). The district court¹ rejected this argument and ordered remand of this case to Missouri state court. BJC appeals the remand order. For the reasons set forth in this opinion, we affirm.

I. Background

In 2009, Congress enacted the Health Information Technology for Economic and Clinical Health (HITECH) Act. The Act established an Office of the National Coordinator for Health Information Technology (Coordinator) within HHS. 42 U.S.C. § 300jj-11(a). The Act tasked the Coordinator "with the development of a nationwide health information technology infrastructure that allows for the electronic use and exchange of information." Id. § 300jj-11(b). As described by Congress, the Act aims to strengthen security of PHI, improve health outcomes, reduce medical errors, lower costs, and facilitate greater coordination among providers. Id.; see generally Kalle Deyette, Comment, HITECH Act: Building an Infrastructure for Health Information Organizations and A New Health Care Delivery System, 8 St. Louis U.J. Health L. & Pol'y 375 (2015) (describing the Act's health information technology goals).

Relevant here, the Act authorizes HHS to make "incentive payments" to healthcare providers for their "adoption and meaningful use of certified EHR technology." 42 U.S.C. §§ 1395w-4(o), 1395ww(n); see also 42 C.F.R. §§ 495.2-.370. These payments have been called the EHR Incentive Program, the Meaningful Use Program, and the Promoting Interoperability Program. See, e.g., United States ex rel. Sheldon v. Kettering Health Network, 816 F.3d 399, 409 (6th Cir. 2016); Joseph D. Szerejko, Note, Reading Between the Lines of Electronic Health Records: The Health Information Technology for Economic and Clinical Health Act and Its Implications for Health Care Fraud and Information Security, 47 Conn. L. Rev. 1103, 1108 (2015); Doe, I v. BJC Health Sys., No. 4:22-cv-919-RWS, 2023 WL 369427, at *2 (E.D. Mo. Jan. 10, 2023).

In 2013, BJC created an online portal for its patients. The portal was initially called MyBJCHealth and renamed MyChart in 2017. The portal allows BJC patients to go online and access EHRs, such as medical test results, and communicate with BJC personnel, such as physicians and nurses. HHS gave BJC incentive payments for creating and operating this portal.

In 2022, plaintiffs filed this putative class action against BJC in Missouri state court. They are or were BJC patients who claim that BJC violated their medical privacy rights under Missouri law. Specifically, plaintiffs allege that, when patients visited MyBJCHealth or MyChart, the portal shared their PHI with third-party services, including Alphabet (Google) and Meta Platforms (Facebook), which used the information for targeted online advertising. BJC acknowledges that its portal shared information with third parties, but it describes the information as depersonalized and unprotected "metadata." The nature of the information is not pertinent in this appeal.

BJC timely removed this case from state court to federal court under the federal officer removal statute. 28 U.S.C. § 1442(a)(1). In the district court, BJC argued that, when it created and operated the portal, it acted under HHS's or the Coordinator's authority. Plaintiffs moved for remand to state court, and the district court granted their motion. BJC now appeals the remand order.

II. Discussion

We have jurisdiction under 28 U.S.C. § 1447(d). "We review a district court's grant of a motion to remand—and related questions of statutory interpretation—de novo." Buljic v. Tyson Foods, Inc., 22 F.4th 730, 738 (8th Cir. 2021).

This case focuses on the federal officer removal statute. 28 U.S.C. § 1442(a). The statute provides the federal government, federal agencies, federal officers, and persons "acting under" federal officers the right to remove from state court to federal court certain civil actions and criminal prosecutions brought against them. Id. The statute is "an incident of federal supremacy." Willingham v. Morgan, 395 U.S. 402, 405, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969); see U.S. Const. art. VI, cl. 2 (Supremacy Clause). Its principal purpose is to afford the designated classes of defendants "the protection of a federal forum" when they incur or potentially incur liability under state law for performing "their duty to enforce federal law." Willingham, 395 U.S. at 407, 89 S.Ct. 1813. The statute is "an exception to the well-pleaded complaint rule." Buljic, 22 F.4th at 738 (internal quotation marks omitted). It should be "liberally construed, and thus the typical presumption against removal does not apply." Id. (internal quotation marks omitted).

"When the removing party is not itself a federal officer or agency," it must make a "threshold showing" that (1) it is a "person" under the statute, (2) it "acted under the direction of a federal officer," (3) a "causal connection" exists between its complained-of conduct and official federal authority, and (4) it has a "colorable federal defense" to the claim or claims against it. Id.; see also Cagle v. NHC Healthcare-Md. Heights, LLC, 78 F.4th 1061, 1068 (8th Cir. 2023); Minnesota v. Am. Petroleum Inst., 63 F.4th 703, 714 (8th Cir. 2023); Graves v. 3M Co., 17 F.4th 764, 768-69 (8th Cir. 2021); Jacks v. Meridian Res. Co., 701 F.3d 1224, 1230 (8th Cir. 2012), abrogated on other grounds by BP P.L.C. v. Mayor & City Council of Balt., 593 U.S. 230, 141 S. Ct. 1532, 1538, 209 L.Ed.2d 631 (2021). All four elements must be present. The absence of any element will defeat removal from state to federal court.

It is undisputed that BJC is not itself a federal officer or agency and that BJC is a person under the federal officer removal statute. Instead, this case focuses on whether BJC acted under the direction of HHS or the Coordinator when it created and operated MyBJCHealth or MyChart, accepted federal incentive payments, and potentially incurred liability under Missouri law. This case turns on the meaning of the phrase "acting under" in the statute. See 28 U.S.C. § 1442(a)(1) (referring to "any person acting under that officer" (emphasis added)).

A. Recent Case Law

Our construction of the statute's "acting under" element begins with Watson v. Philip Morris Cos., 551 U.S. 142, 127 S.Ct. 2301, 168 L.Ed.2d 42 (2007). In Watson, plaintiffs sued the cigarette manufacturer Philip Morris in Arkansas state court. They claimed that Philip Morris's branding and marketing of certain cigarettes as "light" were "deceptive and misleading under Arkansas law." Id. at 146, 127 S.Ct. 2301 (internal quotation marks omitted). Philip Morris removed the case to federal court. It argued that it acted under the Federal Trade Commission (FTC) when it followed government methods and processes, tested cigarettes for their tar and nicotine content, and labeled low-level cigarettes as "light." Id. at 146-47, 154-56, 127 S.Ct. 2301. The Supreme Court rejected this argument, holding that Philip Morris was a mere private entity. Id. at 157, 127 S.Ct. 2301.

Importantly, the Court emphasized that the federal officer removal statute is "not limitless." Id. at 147, 127 S.Ct. 2301. When a court applies the statute, it must consider the "language, context, history, and purposes." Id. A business that simply follows federal law, even highly detailed and complex regulations, does not act under a federal officer. Id. at 151-53, 127 S.Ct. 2301. The "relevant relationship" that must exist "typically involves subjection, guidance, or control." Id. at 151, 127 S.Ct. 2301 (internal quotation marks omitted). It "must involve an effort to assist, or to help carry out, the duties or tasks of the federal superior." Id. at 152, 127 S.Ct. 2301 (emphasis omitted).

According to the Court, Philip Morris's argument for removal failed on the "acting under" element because there was "no evidence of any delegation of legal authority from the FTC." Id. at 156, 127 S.Ct. 2301. When Philip Morris tested cigarettes for tar and nicotine content, it did not "undertake testing on the Government agency's behalf." Id. It acted on its own behalf and for its own business purposes.

In Jacks, we addressed a lawsuit between a plaintiff and her health insurer, Blue Cross Blue Shield-Kansas City (BCBS). 701 F.3d 1224. The plaintiff sued BCBS in state court, alleging violations of...