John Doe, individually on behalf of all others similarly situated v. Mosaic Health System, a/k/a Mosaic Life Care; Heartland Regional Medical Center

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 23-2816
___________________________
John Doe, individually on behalf of all others similarly situated;
Jane Doe, individually on behalf of all others similarly situated
Plaintiffs – Appellees
v.
Mosaic Health System, a/k/a Mosaic Life Care;
Heartland Regional Medical Center
Defendants - Appellants
____________
Appeal from United States District Court
for the Western District of Missouri
____________
Submitted: April 10, 2024
Filed: May 17, 2024
[Unpublished]
____________
Before BENTON, GRASZ, and STRAS, Circuit Judges.
____________
PER CURIAM.

-- 1 of 4 --

-2-
Mosaic Health System and Heartland Regional Medical Center (collectively,
Mosaic) appeal the district court’s1 order of remand back to state court after holding
Mosaic was not entitled to federal officer removal under 28 U.S.C. § 1442(a)(1).
We affirm.
I. Background
Plaintiffs, a proposed class of Missouri citizens, sued Missouri-based Mosaic
in Missouri state court. Plaintiffs allege Mosaic embedded third-party software on
its websites, which tracked patient personal health information and delivered it to
third parties. Plaintiffs asserted nine Missouri-state-law claims against Mosaic
based on its alleged embedding of these “automatic rerouting mechanisms.”
Mosaic removed the case to federal court under the federal officer removal
statute, 28 U.S.C. § 1442(a). Mosaic claimed removal was warranted because
Plaintiffs’ allegations are based on it acting under the directives of the National
Coordinator for Health Information (the National Coordinator). The Health
Information Technology for Economic and Clinic Health (HITECH) Act authorized
the National Coordinator to give federal funds to healthcare providers as an incentive
for those providers to promote patient access to electronic health information. See
Doe v. BJC Health Sys., 89 F.4th 1037, 1040 (8th Cir. 2023); 42 U.S.C. §§ 300jj-
11(a)–(b) (National Coordinator’s authority), 1395w-4(o) (authorizing incentive
payments), and 1395ww(n) (same). Mosaic participated in the incentive program,
developing its websites in exchange for federal payments. Plaintiffs allege Mosaic’s
websites “are designed for interactive communication with patients, including
scheduling appointments, searching for physicians, paying bills, requesting medical
records, learning about medical issues and treatment options, and joining support
groups.”
1 The Honorable Jill A. Morris, United States Magistrate Judge for the Western
District of Missouri, to whom the case was referred for final disposition by consent
of the parties pursuant to 28 U.S.C. § 636(c).

-- 2 of 4 --

-3-
Plaintiffs moved to remand the case to state court, which the district court
granted after determining Mosaic failed to satisfy the jurisdictional requirements for
removal. Mosaic appeals that determination.
II. Analysis
We review de novo the district court’s motion to remand. BJC Health Sys.,
89 F.4th at 1041. The federal officer removal 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. (emphasis added). We liberally
construe this statute and do not apply the typical presumption against removal when
it is invoked. See id. Because Mosaic is not 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. (quoting Buljic v. Tyson Foods,
Inc., 22 F.4th 730, 738 (8th Cir. 2021)).2
Mosaic claims it met the statutory requirements for removal, but our holding
in Doe v. BJC Health System says otherwise. That case—which was decided while
this one was pending appeal—involved Missouri class-action plaintiffs suing BJC
Health System (BJC). The BJC Health System plaintiffs alleged that when they
visited BJC’s online patient portal—which gave BJC patients online access to
electronic health records and to “communicate with BJC personnel”—it shared their
protected health information “with third-party services, . . . which used the
information for targeted online advertising.” Id. at 1040–41. BJC sought removal
under the federal officer removal statute, claiming (as does Mosaic) it acted under
the directives of the National Coordinator and the HITECH Act because BJC
2 Mosaic is indisputably a “person” under the federal officer removal statute,
satisfying the first element. See BJC Health Sys., 89 F.4th at 1041.

-- 3 of 4 --

-4-
received federal incentive payments for creating its patient portal. See id. at 1040.
We affirmed the remand of the case, holding removal was not warranted because
BJC was not acting under the direction of a federal officer. As we explained, “BJC
was not a government contractor, and it did not function in practice as a federal
instrumentality. It made a private website and received a federal subsidy.” Id. at
1047. This was “insufficient” for removal under 28 U.S.C. § 1442(a)(1). Id.
Mosaic argues this case is distinguishable because BJC embedded the tracking
software on its online patient portals, see id. at 1040, while Mosaic embedded the
tracking software on its “public-facing healthcare websites.” This distinction does
not warrant a different result. To invoke the federal officer removal statute, Mosaic
had to show it “provided the government with a product that it needed or performed
a job that the government would otherwise have to perform.” Buljic, 22 F.4th at
739. Accord BJC Health Sys., 89 F.4th at 1045. “The design of private websites is
not—and has never been—a basic governmental task.” Id. Likewise, we conclude
Mosaic’s websites were not federal government websites: they were not “operated
on the federal government’s behalf or for the federal government’s benefit,” and they
were not websites “the federal government directed [Mosaic] to create or operate.”
See id. Thus, Mosaic did not show it “acted under” a federal officer by creating its
websites and accepting federal incentives. Because Mosaic fails to satisfy this
element for federal officer removal, “we need not address the causal connection and
colorable federal defense elements.” Id. at 1047.
III. Conclusion
Accordingly, we affirm the district court’s order remanding this case to
Missouri state court.
______________________________

-- 4 of 4 --