United States Court of Appeals

for the Fifth Circuit ____________

No. 23-30653

____________

Jacqueline Horton, individually and on behalf of all others similarly 

situated, 

Plaintiff—Appellee, 

versus

Willis-Knighton Medical Center, doing business as WillisKnighton Health System, 

Defendant—Appellant. 

______________________________

Appeal from the United States District Court 

for the Western District of Louisiana

USDC No. 1:23-CV-314

______________________________

Before Dennis, Willett, and Duncan, Circuit Judges.

Per Curiam:*

Plaintiff-Appellee Jacqueline Horton brought a putative class action 

against Defendant-Appellant Willis-Knighton Medical Center (WillisKnighton) in Louisiana state court alleging that Willis-Knighton’s online 

patient portal systemically violated its customers’ privacy rights by exposing 

patients’ highly sensitive personal information to third parties without their 

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

June 5, 2024

Lyle W. Cayce

Clerk

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2

knowledge or consent. Specifically, Horton alleges that Willis-Knighton 

embedded the Meta-Pixel tool on its website, resulting in the disclosure of 

patients’ private health information to Facebook for the purposes of targeted

advertising. Horton asserts that this conduct violates the Louisiana 

Electronic Surveillance Act, La. Stat. Ann. § 15:1303. Horton also brings 

a claim for unjust enrichment. 

Willis-Knighton timely removed Horton’s state court petition to 

federal court, invoking federal officer jurisdiction pursuant to 28 U.S.C. 

§ 1442(a)(1). Horton filed a motion to remand to state court, arguing that 

there was neither federal question nor diversity jurisdiction and that the 

federal officer removal statute was inapplicable. The district court, following

a report and recommendation from the magistrate judge, granted Horton’s 

motion to remand. Willis-Knighton timely appeals. 

I 

While an order to remand a case to state court is generally 

unreviewable, when removal was originally sought under the federal officer 

removal statute, 28 U.S.C. § 1442, orders to remand are “reviewable by 

appeal or otherwise.” 28 U.S.C. § 1447(d). The district court’s order to 

remand is reviewed de novo, “without a thumb on the remand side of the 

scale.” Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286, 290 (5th Cir. 2020) 

(en banc) (quotation marks and citation omitted). The federal officer removal 

statute provides that 

[a] civil action or criminal prosecution that is commenced in a 

State court and that is against or directed to any of the following 

may be removed by them to the district court of the United 

States for the district and division embracing the place wherein 

it is pending:

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(1) The United States or any agency thereof or any officer (or 

any person acting under that officer) of the United States or of 

any agency thereof, in an official or individual capacity, for or 

relating to any act under color of such office . . . .

28 U.S.C. § 1442. To successfully remove a lawsuit to federal court under 

this statute, our court has held that Willis-Knighton must show “(1) it has 

asserted a colorable federal defense, (2) it is a ‘person’ within the meaning of 

the statute, (3) that has acted pursuant to a federal officer’s directions, and 

(4) the charged conduct is connected or associated with an act pursuant to a 

federal officer’s directions.” Latiolais, 951 F.3d at 296. The question 

presented on appeal is whether Willis-Knighton acted “pursuant to” a 

federal officer’s direction by creating online patient portals.

1 For the 

following reasons, we hold that Willis-Knighton failed to satisfy the third 

requirement of acting pursuant to a federal officer’s direction and, therefore, 

cannot invoke the federal officer removal statute. 

II

Willis-Knighton argues removal was proper because it acted at the 

behest of the federal government when it created the online patient portal at 

issue in this appeal. Specifically, it alleges that the Health Information 

Technology for Economic and Clinical Health (HITECH) Act, Pub. L. No. 

111–5, 123 Stat. 226, encouraged healthcare providers to adopt healthcare 

technology, including electronic health records. The HITECH Act also 

originally instructed the Department of Health and Human Services to issue

incentive payments to healthcare providers who comply with certain 

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1 The district court’s analysis centered on whether Willis-Knighton acted 

“pursuant to” a federal officer’s direction. Because we agree with the district court’s 

analysis on this prong and because that is enough to decide this appeal, we need not 

consider the other prongs of federal officer removal.

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electronic records requirements. These incentive payments were eventually 

replaced with penalties for healthcare providers who did not comply. 42 

C.F.R. § 495.2(g). On account of the HITECH Act, Willis-Knighton argues 

that they were acting pursuant to a directive from the federal government to 

make patient records available online.

Our circuit was recently presented with the question of whether, 

under “virtually identical” circumstances, a healthcare provider may remove 

to federal court under 28 U.S.C. § 1442. In Martin v. LCMC Health Holdings 

Inc., we joined the two other circuits who have addressed this question and 

held that the connection between the HITECH Act and the development of 

online patient portals was too attenuated to find that healthcare providers 

were acting pursuant to direction from the federal government. 101 F.4th 

410, 416 (5th Cir. 2024); see also Doe v. BJC Health Sys., 89 F.4th 1037, 1047

(8th Cir. 2023) (holding that a healthcare provider “did not act under a 

federal officer when it created and operated its online patient portal and 

accepted HHS incentive payments”); Mohr v. Trustees of Univ. of Penn., 93 

F.4th 100, 105 (3d Cir. 2024) (holding that a healthcare provider did not act 

pursuant to a federal officer by operating a patient portal because “[t]he 

federal government did not delegate any legal authority to Penn to operate a 

patient portal on behalf of the government”). In Martin, we held that “a 

hospital does not act under the direction of the federal government when it 

maintains an online patient portal that utilizes tracking pixels” because the 

connection between the hospital and the federal government “is too 

attenuated to show any delegation of legal authority.” Martin, 101 F.4th at

416.

In its briefing in this case, Willis-Knighton concedes that the issues in 

this case are “virtually identical” to those in Martin v. LCMC Health 

Holdings and that the parties’ briefing in this appeal and in Martin “treads a 

substantial amount of common ground.” In light of Willis-Knighton’s 

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concession and in accordance with Martin v. LCMC Health Holdings Inc., we 

hold that Willis-Knighton did not act pursuant to a federal officer’s direction 

for the purposes of federal officer removal. The district court’s remand order 

is AFFIRMED.

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