89 F.4th 1037
8th Cir.2023Background
- Plaintiffs, who are or were patients of BJC Health System, allege that BJC's online patient portal (MyBJCHealth/MyChart) shared their protected health information (PHI) with third-party marketing companies in violation of Missouri law.
- The patient portal was developed as part of BJC's adoption of electronic health record (EHR) technology, subsidized by incentive payments from the U.S. Department of Health and Human Services (HHS) under the HITECH Act.
- Plaintiffs initially filed suit in Missouri state court; BJC removed the case to federal court under the federal officer removal statute (28 U.S.C. § 1442(a)(1)), claiming it acted under HHS authority.
- The district court remanded the case to state court, finding BJC was not acting under a federal officer.
- BJC appealed the remand order, arguing its creation and operation of the portal qualified as "acting under" a federal officer due to HHS incentive payments and alignment with federal health infrastructure programs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Federal officer removal | BJC was not acting under a federal officer. | BJC acted under HHS via EHR programs. | BJC did not act under a federal officer. |
| "Acting under" delegation | No federal governmental task was delegated. | Creation of portal served federal goals; implied delegation. | No explicit or implied legal authority delegated. |
| Government contractor status | BJC operated on its own behalf, not as contractor. | BJC’s portal like a contractor role in national EHR infrastructure. | BJC not a government contractor or instrumentality. |
| Effect of federal subsidies | Accepting federal funds is insufficient for removal. | Federal incentive payments show federal direction/control. | Subsidy alone does not confer removal eligibility. |
Key Cases Cited
- Watson v. Philip Morris Companies, 551 U.S. 142 (2007) (defines limits of "acting under" a federal officer for purposes of removal)
- Jacks v. Meridian Resource Company, 701 F.3d 1224 (8th Cir. 2012) (discusses when health insurers act under federal authority)
- Graves v. 3M Co., 17 F.4th 764 (8th Cir. 2021) (analyzes federal officer removal in government contracting context)
- Buljic v. Tyson Foods, Inc., 22 F.4th 730 (8th Cir. 2021) (federal officer removal for private companies cooperating with federal guidelines)
- Minnesota v. American Petroleum Institute, 63 F.4th 703 (8th Cir. 2023) (removal requires party to perform a basic governmental function)