PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 23-1924

_______________

JOHNATHON MOHR, 

for himself and others similarly situated 

v.

TRUSTEES OF THE 

UNIVERSITY OF PENNSYLVANIA,

Appellant

_______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2-23-cv-00731)

District Judge: Honorable Chad F. Kenney

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Submitted Under Third Circuit L.A.R. 34.1(a):

February 1, 2024

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Before: KRAUSE, PORTER, and CHUNG

Circuit Judges.

(Filed: February 21, 2024)
2

________________

Adam R. Pulver

Allison M. Zieve

Public Citizen Litigation Group

1600 20th St. NW

Washington, DC 20009

Counsel for Appellee

Paul J. Bond

Eric Yoon

Holland & Knight LLP

1650 Market St.

One Liberty Place, Suite 3300

Philadelphia, PA 19103

Mark S. Melodia

Holland & Knight LLP

31 W. 52nd St., 12th Floor

New York, NY 10019

Counsel for Appellant

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OPINION OF THE COURT

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3

PORTER, Circuit Judge.

Plaintiffs filed a putative class action in state court 

against the Trustees of the University of Pennsylvania (Penn), 

which controls and operates the Hospital of the University of 

Pennsylvania Health System (Penn Medicine). Using mobile 

devices or desktop computers, patients can access and provide 

information to Penn Medicine. Plaintiffs allege that Penn 

Medicine shares patients’ identities, sensitive health 

information, and online activity from its patient portals with 

Facebook in violation of Pennsylvania privacy law. Penn

removed the case to federal court, invoking the federal-officer 

removal statute, 28 U.S.C. § 1442(a)(1). It argued that, in 

operating Penn Medicine’s patient portals, it was “acting 

under” the federal government. The District Court rejected this 

argument and remanded the case to state court. We will affirm.

I

In 2009, Congress enacted the Health Information 

Technology for Economic and Clinical Health Act (HITECH 

Act). Pub. L. No. 111–5, §§ 13001–13424, 123 Stat. 115, 226–

79 (2009). Its goal was to encourage healthcare providers to 

adopt and use health information technology, such as 

electronic health records (EHR). See 42 U.S.C. § 300jj-11(b). 

In part, the HITECH Act directed the Department of Health 

and Human Services (HHS) to make incentive payments to any 

Medicare-participating provider that is a “meaningful EHR 

user.” 42 U.S.C. § 1395w-4(o)(1)(A)(i). Beginning in 2015, 

the law also instructed HHS to reduce Medicare 

reimbursements to any Medicare-participating provider that is 

“not a meaningful EHR user.” 42 U.S.C. § 1395w4(a)(7)(A)(i).
4

In 2010, the Centers for Medicare and Medicaid 

Services (CMS), an agency within HHS, promulgated 

regulations to implement the HITECH Act and created a 

program called the Meaningful Use Program (the Program).

1

42 C.F.R. §§ 495.2–495.110. Under the Program, CMS created 

certain objectives and measures that providers must meet in 

order to qualify as a “meaningful EHR user” and thus receive

incentive payments and avoid reductions in Medicare 

reimbursements. 42 C.F.R. §§ 495.20–495.24. For example, 

one objective is whether a provider uses health information 

technology to “provide[] patients . . . with timely electronic 

access to their health information,” which participating 

providers often accomplish through the use of an online patient 

portal. 42 C.F.R. § 495.24(d)(5)(i)(A).

Penn Medicine has operated an online patient portal

since 2008. Starting in 2011, it began receiving incentive 

payments from the federal government for qualifying as a 

“meaningful EHR user” based on its patient portal meeting

certain objectives and measures under the Program. And 

starting in 2015, Penn Medicine began avoiding any reduction 

in Medicare reimbursements by continuing to qualify as a 

“meaningful EHR user.”

In January 2023, Plaintiffs filed a putative class action 

against Penn in the Court of Common Pleas of Philadelphia 

County. According to the Plaintiffs, Penn Medicine’s patient 

portal surreptitiously allows Facebook’s Tracking Pixel

1 The Program is now called the Promoting 

Interoperability Program. See 42 C.F.R. § 495.4.
5

software to access and collect confidential patient information 

from Penn Medicine’s patient portal and transfer it to 

Facebook’s servers. Facebook then allegedly processes and 

analyzes the patient data for targeted advertising. Plaintiffs 

assert that this transfer of confidential information to Facebook 

violates Pennsylvania privacy law. 

In February 2023, Penn removed the case to federal 

court, invoking the federal-officer removal statute as a basis 

for jurisdiction. 28 U.S.C. § 1442(a)(1). It argued that, because 

Penn operates Penn Medicine’s patient portal to receive 

incentive payments under the Program and avoid reductions in 

Medicare reimbursements, it is “acting under” the federal 

government. Plaintiffs filed a motion to remand for lack of 

subject-matter jurisdiction, which the District Court granted.

Penn appealed.

II

The District Court had the obligation and power to 

determine its own jurisdiction. Nuveen Mun. Tr. ex rel. Nuveen 

High Yield Mun. Bond Fund v. WithumSmith Brown, P.C., 692 

F.3d 283, 293 (3d Cir. 2012). We have jurisdiction to review 

the District Court’s remand order under 28 U.S.C. §§ 1291 and 

1447(d).

We review the District Court’s decision to remand for 

lack of subject-matter jurisdiction de novo. Maglioli v. All. HC

Holdings LLC, 16 F.4th 393, 403 (3d Cir. 2021). Like the 

District Court, we construe Plaintiffs’ motion to remand as a 

facial challenge to the District Court’s subject-matter 

jurisdiction because Plaintiffs did not dispute the facts alleged 

in Penn’s notice of removal. Papp v. Fore-Kast Sales Co., 842 
6

F.3d 805, 811 (3d Cir. 2016) (explaining the differences

between facial and factual challenges in the context of a motion 

to remand). Thus, we must accept the factual allegations in 

Penn’s notice of removal as true and construe them in the light 

most favorable to Penn. Id.

III

28 U.S.C. § 1442(a)(1) “permits certain officers of the 

United States to remove actions to federal court.” Maglioli, 16 

F.4th at 404. It also allows “private persons who lawfully assist 

[a] federal officer in the performance of his official duty” to 

remove a case to federal court. Watson v. Philip Morris Cos., 

551 U.S. 142, 151 (2007) (internal quotation marks and quoted 

source omitted). The “central aim” of § 1442(a)(1) is to 

“protect[] officers of the federal government from interference 

by litigation in state court while those officers are trying to 

carry out their duties.” Papp, 842 F.3d at 811.

“To remove a case under § 1442(a)(1), a defendant must 

meet four requirements: (1) the defendant must be a ‘person’ 

within the meaning of the statute; (2) the plaintiff’s claims 

must be based upon the defendant ‘acting under’ the United 

States, its agencies, or its officers; (3) the plaintiff’s claims 

against the defendant must be ‘for or relating to’ an act under 

color of federal office; and (4) the defendant must raise a 

colorable federal defense to the plaintiff’s claims.” Maglioli, 

16 F.4th at 404 (quoting § 1442(a)(1)). The defendant bears the 

burden of establishing that each requirement is met. Avenatti v.
7

Fox News Network LLC, 41 F.4th 125, 130 (3d Cir. 2022). This 

case turns on the second, “acting under” requirement.2

A

To satisfy the “acting under” requirement, the defendant 

must show that the plaintiff’s allegations “involve conduct that 

occurred when [the defendant] was ‘acting under’ the direction 

of a federal officer or agency.” Papp, 842 F.3d at 813. The 

defendant is not “required to [show] that the complained-of 

conduct itself was at the behest of [the federal government].” 

In re Commonwealth’s Motion to Appoint Couns. Against or 

Directed to Def. Ass’n of Phila., 790 F.3d 457, 470 (3d Cir. 

2015). It is “sufficient . . . that the [plaintiff’s] allegations are 

directed at the relationship between” the federal government

and the defendant. Id.

The “acting under” requirement is to be liberally 

applied in favor of removal, but “[it] is not boundless.” 

Maglioli, 16 F.4th at 404. At bottom, a private party is acting 

under the federal government when it is “involve[d] [in] an 

effort to assist, or to help carry out, the duties or tasks of the 

federal superior.” Watson, 551 U.S. at 152. This “special 

relationship” arises when the federal government “delegat[es] 

. . . legal authority” to the private party to “undertake” a duty 

or task “on the Government[’s] . . . behalf.” Id. at 156–57. In 

other words, “[t]he [private] party does the business of the 

2 Plaintiffs argue that Penn also fails the third and 

fourth requirements. Because we conclude that Penn does not 

satisfy the second requirement and therefore is not entitled to

removal, we decline to address the other requirements.
8

federal government and not merely its own.” Doe v. BJC 

Health Sys., 89 F.4th 1037, 1043 (8th Cir. 2023).

“Merely complying with federal laws and regulations is 

not ‘acting under’ a federal officer for purposes of federalofficer removal.” Maglioli, 16 F.4th at 404. That includes 

private parties who are “subject to detailed regulations and 

whose activities are highly supervised and monitored[.]” Id.

(internal quotation marks and quoted source omitted). If the 

defendant’s relationship to the federal government sounds 

merely in “regulation, not delegation,” the defendant fails the 

“acting under” requirement. Watson, 551 U.S. at 157.

“Government contractors are [the] classic example” of 

private parties who are acting under the federal government. 

Maglioli, 16 F.4th at 405. That is because they “help[] the 

Government to produce an item that it needs”—which, “in the 

absence of a contract with a private firm, the Government itself 

would have had to perform.” Watson, 551 U.S. at 153–54. In 

other words, they “go[] beyond simple compliance with the 

law and help[] officers fulfill other basic governmental tasks.” 

Id. at 153.

B

Penn argues that the Plaintiffs’ allegations regarding

Penn Medicine’s patient portal involve conduct that occurred 

while Penn was acting under the federal government. Penn 

receives incentive payments from the federal government 

under the Program and avoids reductions in Medicare 

reimbursements, in part, because it operates Penn Medicine’s

patient portal. According to Penn, this relationship shows that 
9

it is “fulfill[ing]” the federal government’s policy and thus

acting under it. App. 29. We disagree.

The federal government did not delegate any legal

authority to Penn to operate a patient portal on behalf of the 

government. See Watson, 551 U.S. at 156. Absent private 

action, the federal government itself would not be operating 

any patient portal. See id. at 153–54; Maglioli, 16 F.4th at 405.

When Penn operates Penn Medicine’s patient portal, it is not 

doing the government’s business; it is doing its own. See BJC 

Health, 89 F.4th at 1043. To be sure, Penn does advance the 

government’s policy by operating a patient portal that meets 

certain objectives and measures under the Program. But that is 

mere compliance “with federal laws and regulations.”

Maglioli, 16 F.4th at 404. Advancing governmental policy 

while operating one’s own business is not the same as 

executing a delegated governmental duty.

According to Penn, it is acting under the federal 

government because it has a contractual relationship with the 

government. In particular, Penn signed a written enrollment 

application with CMS to participate in Medicare, which in turn 

allowed it to participate in the Program.

3 But simply because a 

private party has a contractual relationship with the federal 

government does not mean that it is acting under that federal 

authority. See, e.g., City of Hoboken v. Chevron Corp., 45 F.4th 

699, 713 (3d Cir. 2022) (companies that produced oil under 

government leases were not acting under the government 

because the leases did not “impose close federal control” and 

3 Penn also claims that its course of dealings with 

CMS constituted a contractual agreement.
10

the oil was not specifically produced for the government); 

Maglioli, 16 F.4th at 405–06 (nursing home did not act under 

the government by complying with CMS regulations, even 

though compliance was required by contract). We must look to 

the nature of the relationship between the private party and the 

federal government. See Watson, 551 U.S. at 152–54; Maglioli, 

16 F.4th at 405. Here, that relationship demonstrates that Penn 

is not acting under the federal government in operating Penn 

Medicine’s patient portals.

Penn also urges us to follow Doe I v. UPMC, No. 2:20-

cv-359, 2020 WL 4381675 (W.D. Pa. July 31, 2020). There, 

based on nearly identical facts to Plaintiffs’ case, the district 

court concluded that UPMC acted like a government contractor 

in operating its patient portal and receiving payments under the 

Program. Id. at *6. We reject the court’s holding in Doe I. A

defendant acts as a government contractor when, for example, 

a manufacturer produces a product for the federal government, 

doing so “under the specific supervision of . . . the 

[government].” Papp, 842 F.3d at 810, 813 (finding that The 

Boeing Company was a government contractor in producing a 

military cargo plane for the military). But Penn’s relationship 

to the federal government is nothing of the sort. It is not 

producing or operating any patient portal for the government; 

absent private action, the government itself would not provide 

this service.

In short, Penn fails to show that it was acting under the 

federal government for purposes of § 1442(a)(1). In reaching 

this holding, we join at least one of our sister circuits and many

district courts that have addressed nearly identical issues. See, 

e.g., BJC Health, 89 F.4th at 1044–47 (healthcare provider did 

not act under the federal government in creating and operating 
11

its patient portal to participate in the Program); Doe v.

Washington Twp. Health Care Dist., No. 23-cv-05016-SI, 

2023 WL 8438564, at *3–6 (N.D. Cal. Dec. 5, 2023) (same); 

Doe v. Christ Hosp., Nos. 1:23-cv-27, 1:23-cv-31, & 1:23-cv87, 2023 WL 4757598, at *6–9 (S.D. Ohio July 26, 2023)

(same); Valladolid v. Mem’l Health Servs., No. 23-3007, 2023 

WL 4236179, at *7–12 (C.D. Cal. June 27, 2023) (same); Doe 

v. Sarah Bush Lincoln Health Ctr., No. 23-cv-2170, 2023 WL 

7690179, *3–7 (C.D. Ill. Nov. 13, 2023) (same); Progin v. 

UMass Mem’l Health Care, Inc., Nos. 23-cv-10113, 22-cv12022, & 22-cv-40154, 2023 WL 4535129, at *3–5 (D. Mass. 

July 13, 2023) (same); Martin v. LCMC Health Holdings, Inc., 

No. 23-411, 2023 WL 4540547, at *3–5 (E.D. La. July 5, 2023) 

(same).

* * *

Penn fails the second requirement under § 1442(a)(1) 

and is therefore not entitled to removal. The District Court thus 

lacked subject-matter jurisdiction and properly remanded the 

case to state court. For these reasons, we will affirm.