In 2022, an investigation revealed that the University of Pennsylvania Health System (Penn Medicine) had installed Facebook’s Tracking Pixel on its websites, including the patient portal by which patients obtained test results and scheduled medical appointments. As a result, patients’ medical information was intercepted by Facebook, which collected and analyzed it for marketing and advertising purposes.
Johnathon Mohr, a Penn Medicine patient who had used its websites, sued Penn Medicine in Pennsylvania state court, on behalf of himself and a putative class, alleging violations of the state Wiretapping and Electronic Surveillance Control Act. Penn Medicine removed the case to federal district court, invoking the federal-officer removal statute, 28 U.S.C. s. 1442(a)(1). The district court granted Mr. Mohr’s motion to remand the case, finding that Penn Medicine’s relationship with the Centers for Medicare and Medicaid Services did not create the “acting under” relationship necessary to satisfy the federal-officer removal statute. Penn Medicine then appealed to the Third Circuit.
Public Citizen represents Mr. Mohr on appeal. The appellate brief explains that the district court correctly held that neither Penn Medicine’s participation in the Medicare program generally nor its participation in the “Meaningful Use Program” designed to incentivize the creation and use of electronic health records systems satisfies the “acting under” requirement.