United States Court of Appeals For the First Circuit
No. 25-1314
CRYSTAL CZERNO, Individually and as Parent and Natural Guardian of C.L., a minor,
Plaintiff, Appellee,
v.
GENERAL ELECTRIC COMPANY,
Defendant, Appellant,
MONSANTO COMPANY; SOLUTIA, INC.; PHARMACIA LLC; BAYER, AG; SABIC INNOVATIVE PLASTICS GLOBAL TECHNOLOGIES LP; SABIC INNOVATIVE PLASTICS TECHNOLOGIES, INC.; SABIC INNOVATIVE PLASTICS US LLC; SAUDI BASIC INDUSTRIES CORP., (SABIC); GE PLASTICS, a/k/a Plastics Technologies, Inc.
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark G. Mastroianni, U.S. District Judge]
Before
Gelpí, Thompson, and Dunlap, Circuit Judges.
William M. Jay, with whom Andrew Kim, Christopher J.C. Herbert, Goodwin Procter LLP, James M. Campbell, Michelle M. Byers, Christopher B. Parkerson, and Campbell Conroy & O'Neil, P.C., were on brief, for appellant.
Thomas E. Bosworth, with whom Bosworth DeAngelo, LLC, John B. Stewart, and John B. Stewart, P.C., were on brief, for appellee. July 14, 2026 DUNLAP, Circuit Judge. The parties ask us to decide
where this case -- which relates to the manufacturing, use,
dumping, and remediation of polychlorinated biphenyls
("PCBs") -- will be litigated. Plaintiff-Appellee Crystal Czerno
("Czerno") urges us to return the case to Massachusetts state
court, where she originally filed it, while Defendant-Appellant
General Electric Company ("GE") seeks to keep the case in federal
court following its removal to the United States District Court
for the District of Massachusetts. Because we conclude that GE
has carried its burden to satisfy both the "acting under" and "for
or relating to" elements of the federal officer removal statute,
28 U.S.C. § 1442(a)(1), we reverse the district court's decision
on removal and remand the case to the district court to decide
whether GE has set forth a "colorable federal defense."
I.
According to Czerno's complaint, her minor son, C.L.,
developed leukemia after attending school near and residing close
to GE's Pittsfield, Massachusetts plant. For decades, GE
manufactured and serviced electrical transformers and capacitors
containing PCBs, and produced a dielectric fluid containing PCBs
used to insulate electrical devices, at the Pittsfield plant; GE
also disposed of PCBs used in the manufacturing process at
locations in the surrounding communities -- including at a
-3- location near C.L.'s school. Czerno alleges that these PCBs caused
C.L.'s leukemia.1
PCBs are synthetic compounds characterized by chemical
stability at high temperatures, high dielectric constants, 2
superior cooling qualities, and non-flammability, which made them
an attractive choice for electrical insulation -- and particularly
well-suited for military contexts, where the fire and explosion
hazards associated with oil-insulated devices are especially
acute. Electrical devices impregnated with PCBs were also markedly
more reliable and long-lived than comparable oil capacitors of the
mid-to-late 20th century. They were also one-sixth of the size,
one-fifth of the weight, and a quarter of the cost.
That is why, from the early 1930s through the late 1970s,
GE manufactured transformers and capacitors containing PCBs.
Generally, GE purchased PCBs from the Monsanto Company, blended
them into a proprietary mix branded "Pyranol," and infused Pyranol
into capacitors, transistors, and other electrical equipment. The
superior chemical and technical properties of these devices also
explain why, in the months leading up to World War II, the federal
government began ordering Pyranol devices from GE for use in
1At this stage, we do not opine on the merits of the underlying case and address only the parties' arguments regarding removal. 2 In the insulation context, a higher dielectric strength
allows for a smaller capacitor without loss of utility.
-4- defense work, and, once the war began, continued contracting with
GE for Pyranol and electrical equipment containing Pyranol. GE
fulfilled these orders from the Pittsfield plant. And to satisfy
the government's heightened demands, GE completely dedicated the
Pittsfield plant's Capacitor Department to supplying products for
the federal government's war efforts during some periods in the
1940s.
Throughout this time, and for decades afterwards, GE
allegedly dumped PCBs in the Hill 78 Consolidation area, a six-acre
landfill near the Pittsfield plant and adjacent to Allendale
Elementary School. In 1950, GE provided the City of Pittsfield
with soil from Hill 78 to layer the Allendale Elementary School
grounds where, a little over half a century later, Czerno's son
attended elementary school.
By the early 1970s, the public became increasingly aware
of the possible health and environmental consequences of PCBs, and
the government began scrutinizing the use of PCBs. In 1972,
Monsanto discontinued sales of PCBs except to those buyers, like
GE, with whom it had special indemnity agreements. By the end of
that decade, federal legislation and Environmental Protection
Agency (EPA) regulations largely prohibited new manufacturing and
use of PCBs. See 15 U.S.C. § 2605(e)(2).
In 1980, Congress took the additional step of
authorizing the EPA to either compel private parties to remediate
-5- their PCB pollution or otherwise clean up pollution sites directly
and then recover costs from the polluters via lawsuits,
settlements, or other legal processes. See generally 42 U.S.C.
§ 9622. This led GE to enter a consent decree with the EPA,
Massachusetts, and Connecticut in 2000 under which GE agreed (among
other things) to finance and perform remediation of Hill 78,
Allendale Elementary, and several other areas in and around
Pittsfield.
Notwithstanding these remedial efforts, on August 15,
2023, Czerno sued GE3 in state superior court in the Commonwealth
of Massachusetts on behalf of herself and C.L., alleging that GE's
use and disposal of PCBs led to C.L.'s leukemia. Among other
claims, she asserts strict liability claims for GE's "defectively
designed Pyranol," as well as its "use, disposal, storing, keeping,
and/or maintaining of PCBs" (Counts III, XIII); a negligence claim
relating to GE's use, dumping, disposal, and remediation of PCBs
(Count VI); a fraudulent misrepresentation claim relating to the
dangers of PCBs (Count VII); private and public nuisance claims
relating to GE's "use, misuse, dumping, failure to remove, failure
3Czerno also sued Monsanto and several related entities, but because only GE has removed the case to federal court, we address only the theories of liability applicable to GE. As we have recognized, "if a single defendant properly removes under § 1442, the entire action, with all defendants, must be removed to federal court." Gov't of P.R. v. Express Scripts, Inc., 119 F.4th 174, 185 (1st Cir. 2024).
-6- to remediate, disposal, and distribution of PCBs" (Counts IX, X);
and claims for improper transportation of hazardous material
(Count XV) as well as loss of consortium (Count XVII).
GE timely removed the case to federal court, see 28
U.S.C. § 1446, asserting that the federal officer removal statute,
28 U.S.C. § 1442(a)(1), conferred jurisdiction on the federal
courts to hear this case. Czerno moved to remand, arguing that GE
had not demonstrated that removal satisfied the elements of
§ 1442(a)(1). The district court agreed with Czerno and ordered
that the case be remanded, but it subsequently stayed the remand
order pending this appeal.
We have jurisdiction to hear this appeal pursuant to
28 U.S.C. § 1291 and 28 U.S.C. § 1447(d).
II.
Congress gave certain parties the "absolute" right to
remove a state court suit filed against them to federal court,
"regardless of whether the suit could originally have been brought"
there. Willingham v. Morgan, 395 U.S. 402, 406 (1969). The right
extends to:
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 or on account of any right, title or authority claimed under any Act of Congress for the apprehension or
-7- punishment of criminals or the collection of the revenue. 28 U.S.C. § 1442(a)(1). The basic purpose of this provision is to
protect both the federal government and those assisting federal
officials from State interference that may reflect local prejudice
against federally authorized activities. See Watson v. Philip
Morris Cos., 551 U.S. 142, 150 (2007).
When a private entity, like a government contractor,
seeks removal under this provision, it must show that (1) it was
"acting under" a federal officer's authority, (2) the charged
conduct was "for or relating to" that authority, and (3) it can
assert a "colorable federal defense" to the suit. Chevron USA
Inc. v. Plaquemines Parish, La., 146 S. Ct. 1052, 1057–58 (2026)
(first quoting 28 U.S.C. § 1442(a)(1); and then quoting Mesa v.
California, 489 U.S. 121, 129 (1989)); Gov't of P.R. v. Express
Scripts, Inc., 119 F.4th 174, 185 (1st Cir. 2024). "[T]he removing
part[y] bear[s] the burden of showing federal officer jurisdiction
as pleaded in their notice of removal," and federal "[c]ourts must
credit that party's theory of the case" for removal. Express
Scripts, 119 F.4th at 184 (citation modified).
Here, GE offers two theories to support removal under
§ 1442(a)(1) -- first, that its wartime work for the federal
government producing PCB-infused electrical components establishes
federal officer jurisdiction, and second, that its work
remediating PCB pollution pursuant to the consent decree with the
-8- EPA also confers federal officer jurisdiction. The district court
rejected both theories and so concluded that GE failed to satisfy
§ 1442(a)(1).
We review "de novo the district court's jurisdictional
determination on removal," and "[w]here the district court
resolve[d] disputed issues of fact, we review those factual
findings for clear error." Moore v. Elec. Boat Corp., 25 F.4th
30, 34 (1st Cir. 2022). Because we find that GE satisfied both
the first and second elements of removal under its first theory,
we need not and do not address GE's second theory.
A. The Federal Officer Removal Framework
GE, as the party seeking to remove to federal court,
must first show that it "act[ed] under" a federal officer. 28
U.S.C. § 1442(a)(1); see Express Scripts, 119 F.4th at 185. If it
clears that initial hurdle, GE must then demonstrate that the
allegations in the complaint are "for or relating to" its acts
under federal authority. 28 U.S.C. § 1442(a)(1); see Express
Scripts, 119 F.4th at 186. We have been clear that these first
two elements of § 1442(a)(1) implicate two distinct relationships:
the "acting under" element is concerned solely with the
relationship between the removing party and the government, see
Express Scripts, 119 F.4th at 185-86 ("'[A]cting under'
. . . contemplate[s] a relationship where the private party
engages in an effort 'to assist, or to help carry out, the duties
-9- or tasks of the federal superior'" (quoting Moore, 25 F.4th at 34
n.3) (alterations and emphases in original)), while the "for or
relating to" element addresses the relationship between "the
allegations in the complaint" and the work done under a federal
officer, see Rhode Island v. Shell Oil Prods. Co., 35 F.4th 44, 53
n.6 (1st Cir. 2022) ("Shell Oil II") (noting that the "relating
to" element requires "a 'nexus' between 'the allegations in the
complaint and conduct undertaken at the behest of a federal
officer'" (quoting Moore, 25 F.4th at 34 & n.2)).
The Supreme Court has recently reiterated that these two
elements are distinct and require different analyses. In
Plaquemines Parish, the Supreme Court rejected an attempt to
intermingle these two elements of the federal officer removal
statute as being "not consistent with the statutory text." 146
S. Ct. at 1063. The respondent in Plaquemines Parish argued, much
as Czerno does here, that "the removal statute requires that the
defendant was 'acting under' a federal officer in taking the
specific actions challenged in the suit." Id. at 1062. But that
analysis is wrong, as it would "impermissibly conflate[] the
distinct . . . elements of the" test "in a way that makes part of
it redundant." Id. at 1063 (citation modified).
With this framework in mind, we turn to GE's first theory
of removal.
-10- B. GE's "Government Contractor" Theory of Removal
The district court concluded that GE's role as a
government contractor was insufficient to establish grounds to
remove Czerno's complaint under § 1442(a)(1). In GE's view, the
district court erred both by characterizing the products provided
to the government as off-the-shelf products and by emphasizing
"strict control" as the requisite relationship between the federal
government and government contractors. We agree with GE. Though
the "acting under" standard is not so lax that anyone who sells
goods at arm's-length to the government qualifies for removal, we
hold that GE's relationship with the armed forces and its
manufacture of specialized PCB-containing products for use in
specific military contexts, at the request of the military, is
sufficient to establish the requisite relationship for removal.
We also conclude that Czerno asserts claims that readily relate to
GE's work under the federal government.
1. "Acting Under"
"'The words "acting under" are broad,' and, like the
rest of [§ 1442(a)], 'must be "liberally construed."'" Express
Scripts, 119 F.4th at 185 (quoting Watson, 551 U.S. at 147). The
relationship envisioned by the statute is characterized by the
private party's "effort to assist, or to help carry out, the
duties" of the government, and "typically involves 'subjection,
guidance, or control.'" Watson, 551 U.S. at 151-52 (emphases in
-11- original) (quoting Webster's New International Dictionary 2765 (2d
ed. 1953)); see Moore, 25 F.4th at 34 n.3. Although regulatory
compliance alone is insufficient to satisfy the "acting under"
element, the element is generally satisfied when a private entity
helps the "[g]overnment to produce an item that it needs" or helps
federal "officers fulfill other basic governmental tasks."
Watson, 551 U.S. at 153; see Express Scripts, 119 F.4th at 185-86.
Other circuits have held, and we agree, that mere government
agreements to purchase "off-the-shelf" products from private
entities do not suffice to establish the requisite relationship.
Express Scripts, 119 F.4th at 193; see, e.g., Bd. of Cnty. Comm'rs
of Boulder Cnty. v. Suncor Energy (U.S.A.) Inc., 25 F.4th 1238,
1253 (10th Cir. 2022); Washington v. Monsanto Co., 738 Fed. App'x
554, 555 (9th Cir. 2018). But where private contractors
manufacture goods for the government, at the government's request,
and to satisfy a governmental need, private contractors may be
found to have acted under a federal officer. See Moore, 25 F.4th
at 34 n.3.
"[C]ourts have unhesitatingly treated the 'acting under'
requirement as satisfied" in the government contractor context,
Sawyer v. Foster Wheeler LLC, 860 F.3d 249, 255 (4th Cir. 2017),
and military contractors are the "archetypal case" of entities
"acting under" the United States, Williams v. Lockheed Martin
Corp., 990 F.3d 852, 859 (5th Cir. 2021) (quoting Papp v. Fore-Kast
-12- Sales Co., 842 F.3d 805, 813 (3d Cir. 2016)); see Moore, 25 F.4th
at 34 n.3 (collecting cases); see, e.g., Genereux v. Am. Beryllia
Corp., 577 F.3d 350, 357 n.9 (1st Cir. 2009) (recognizing federal
officer removal based on defendant's "assertion that it was a
'person acting under'" a federal officer "because the
beryllium-containing products it supplied to Raytheon were used in
manufacturing 'military hardware'"); Isaacson v. Dow Chem. Co.,
517 F.3d 129, 137 (2d Cir. 2008) (holding that the "acting under"
element was satisfied where the defendants contracted with the
government "to provide a product that the [g]overnment was using
during war -- a product that, in the absence of Defendants, the
[g]overnment would have had to produce itself").
In this case, GE acted under a federal officer by
providing the government with "an item that it need[ed]" and
"perform[ing] a job . . . the [g]overnment itself would have had
to perform," Watson, 551 U.S. at 153-54; see Doe v. BJC Health
Sys., 89 F.4th 1037, 1045 (8th Cir. 2023), by providing the
military with components for military hardware. Specifically, GE
acted under federal officers when it produced PCB-infused
electrical devices, like transformers and capacitors, for the
military.
Throughout the 1940s, the government placed substantial
"priority orders" for electrical system components containing PCBs
for use in defense work, requiring GE to meet government timelines
-13- and avoid delivery delays -- and leading GE to "adapt[]" its
facilities to meet the demands. When viewed in the wartime
context, the government's demand for PCB-infused products is not
at all surprising; Pyranol offered important qualities, such as
fire resistance, that were crucial for the federal government's
military considerations. To that end, the federal government
enlisted GE to fulfil "major war supply contracts" for PCB-infused
transformers and capacitors for immediate use and integration into
war-related infrastructure and machinery. In turn, and to meet
the government's substantial demands, GE -- at some periods during
the war -- had to dedicate the entirety of its Pittsfield plant's
production and output towards fulfilling the government's needs.
Further, to meet these government demands, GE departed from its
normal operations and adapted its facilities to manufacture the
capacitors ordered by the government.
Among other products, the government ordered from GE
"pyranol type" transformers and small capacitors for use in "gun,
tank and equipment controls," and "aircraft service, motors,
generators, and radio interference suppression," as well as
"anti-aircraft shell and torpedo detonators" for the "Army and
Navy." Similarly, the government ordered Pyranol-infused "Large
Power Factor Capacitors" from GE for large radar equipment. The
government required capacitors "rang[ing] in size from a few ounces
to 100 pounds or more," for various "applications" that were
-14- "developing almost daily," and so GE customized the capacitors to
the government's needs, harnessing "a wide variety" of
"manufacturing processes and types of facilities" to build the
different capacitors. In producing these items, GE "provid[ed]
the [g]overnment with . . . product[s]" -- components for
weaponry and defense systems -- "that [the government] used to
help conduct a war." Watson, 551 U.S. at 154.
The military's voracious appetite for GE's Pyranol
products during World War II fostered and cemented a close
relationship between the government and GE that persisted for
decades after the war. Communications between GE and Monsanto
from 1941 indicate that "it [was] almost impossible" for GE to
keep a list of orders from the government "up to date" because the
volume of the government's orders was so substantial. One naval
station alone, for example, placed new priority orders with GE for
Pyranol transformers "almost daily." The government's reliance on
GE was so acute that it even approved a Necessity Certificate for
Monsanto, in part because Monsanto's delay in providing chemicals
to GE was slowing down GE's ability to furnish the government with
Pyranol-insulated equipment.4 Directed by the government to meet
4The district court noted that the Certificates of Necessity GE sought from the government concern GE's receipt of tax incentives for producing PCBs. But this context does not alter our analysis. GE's applications for Certificates of Necessity demonstrate GE dedicated a substantial volume of its production to
-15- its military needs, GE was enmeshed in "do[ing] the business of
the federal government and not merely its own." BJC Health Sys.,
89 F.4th at 1043.
After the war, GE's continued provision of PCBs remained
essential to the government's carrying out of its duties and tasks.
In a 1974 letter to GE, a Navy official noted that "[t]he Navy
Department, and other agencies of the Department of Defense as
well, have a substantial number of transformers and electrical
devices in which the use of askarel rather than ordinary
transformer oil is essential."5 The Navy acknowledged that "[m]any
of" the transformers and electrical devices that the Navy, as well
as other agencies of the Department of Defense, had purchased were
"products of the General Electric Company," containing Pyranol,
and the Navy "of course . . . look[ed] to General Electric for the
supplies necessary to keep them operational" because it was
"essential" that PCBs "be procured for use by [g]overnment
personnel in servicing [electrical] devices."
providing the government with particularized components for military equipment. 5 Czerno urges that this letter did not require GE to provide
PCBs to the government and instead "merely reflects the Navy's view that askarels, in general" -- rather than PCBs in particular -- "were essential for operation of some of its equipment." As discussed in more detail below, the "acting under" standard is not so exacting that it requires the defendant to have been "'acting under' a federal officer in taking the specific actions challenged in the suit." Plaquemines Parish, 146 S. Ct. at 1062.
-16- On the record before us, it does not appear that GE was
providing the government with a "widely available commercial
product[] or service[]," Cnty. of San Mateo v. Chevron Corp., 32
F.4th 733, 757 (9th Cir. 2022), via a traditional commercial
relationship; rather, GE produced specialized products for the
government through an "unusually close" relationship, wherein GE
manufactured goods at the "direction" of the military in order to
"assist, or to help carry out," the government's "duties" by
developing equipment for war, Express Scripts, 119 F.4th at 185
(third and fourth quotation), 193 (second quotation); see Watson,
551 U.S. at 152-53. Several exhibits in the record demonstrate a
high level of detail and specification in the government's demands
from GE. For example, communications between GE and the Navy from
November of 1972 show that the Navy requested a quote from GE based
on its technical needs, and GE, in turn, furnished specific
products it deemed to be "satisfactory" in fulfilling those needs.
In the relevant letters, GE recommended the Navy order "three (3)
75 KVA pyranol type single phase, 60 cycle, high voltage, 2400/4160
Y, high voltage tap, two 5 percent rated KVA below normal, low
voltage 120/240" transformers to fit the government's intended use
of operating motors at a certain power factor, stating that the
transformers "should be satisfactory" assuming the motors would
not be started simultaneously; the Navy then requested requisition
of the transformers. In other words, GE responded to the
-17- government's unique demands by furnishing it with specialized
products and the government relied on GE's technical expertise
when contracting with it to provide these products.
By developing and selling essential Pyranol fluids and
Pyranol-infused devices to the government, both during and after
the war, GE "provid[ed] the [g]overnment with a product that it
used" to "fulfill . . . basic governmental tasks," and was engaged
in an "effort to assist" the Navy with maintaining its
technological infrastructure. Watson, 551 U.S. at 152–54. The
nature and specificity of the defense orders, the specialized
nature of the items provided to the government, and GE's
relationship with the government -- including the dedication of
GE's facilities to the fulfillment of government contracts -- lead
us to conclude that GE is squarely in line with other government
contractors who have successfully sought removal by virtue of their
"product[s] manufactured for the government" at the direction of
the government. Moore, 25 F.4th at 34 n.3; see Genereux, 577 F.3d
at 357 n.9; Sawyer, 860 F.3d at 255 (holding that a federal
contractor that assembled boilers for Naval vessels was "acting
under" a federal officer's authority). We think it more than "at
least arguabl[e]" that "in the absence of a contract with a private
firm, the [g]overnment itself would have" been responsible for
producing and servicing these components for weapons. Watson, 551
-18- U.S. at 154; Express Scripts, 119 F.4th at 185-86. That is enough
to conclude GE acted under a federal officer.
The district court's contrary conclusion, and Czerno's
insistence that the "acting under" requirement is not satisfied
because GE's government contracts did not mandate GE's improper
disposal of PCBs, reflect an overreading of the "acting under"
requirement. The district court reasoned that the federal
government must exercise "tight control" over the work of the
private contractor for that contractor to "act under" federal
officers, citing an unpublished district court opinion, Progin v.
UMass Mem'l Health Care, Inc., 2023 WL 4535129, at *4 (D. Mass.
July 13, 2023). But the Supreme Court has not adopted such a
standard, nor have we. Indeed, to do so would run against our
precedent that the provision "must be liberally construed . . . to
ensure a federal forum in any case where a . . . private actor[]
acting on [a federal] official's behalf may raise a defense arising
out of his official duties." Express Scripts, 119 F.4th at 185
(citation modified). We have not before adopted, and do not today
adopt, "a narrow, grudging interpretation of § 1442(a)(1)." Id.
(quoting Arizona v. Manypenny, 451 U.S. 232, 242 (1981)).
Specifically, in reaching its conclusion, the district
court overread Watson's citation to Winters v. Diamond Shamrock
Chem. Co., 149 F.3d 387 (5th Cir. 1998). In Watson, the Supreme
Court descriptively observed that many lower courts -- including
-19- the Fifth Circuit in Winters -- had "held that [g]overnment
contractors fall within the terms of the federal officer removal
statute, at least when the relationship between the contractor and
the [g]overnment is an unusually close one involving detailed
regulation, monitoring, or supervision." 551 U.S. at 153.6 In
Winters, "the defendants were compelled to deliver Agent Orange to
the government under threat of criminal sanctions," and the
specific formulation of chemicals constituting Agent Orange were
"never manufactured or registered . . . for domestic use either
prior to or after" the defendants "ma[de] 'Agent Orange' for the
[g]overnment." 149 F.3d at 398–99 (second citation modified). We
do not read Winters as delimiting the parameters of the "acting
under" element. Indeed, as we have noted, the Supreme Court
ultimately observed in Watson that the answer to the "acting under"
question for contractors turns on the fact that contractors "help[]
the [g]overnment to produce an item that it needs" and thereby
"help[] officers fulfill . . . basic governmental tasks." 551
U.S. at 153. The Supreme Court's takeaway from Winters -- and
ours too -- is that when a firm "provid[es] the [g]overnment with
a product that it use[s] to help conduct a war" and "perform[s] a
6Watson v. Philip Morris Cos. did not involve claims against a contractor, but rather claims against an entity "subjected to intense regulation." 551 U.S. 142, 153 (2007). In Watson, therefore, the Supreme Court only discussed government contractors in response to the regulated entity's effort to compare itself to government contractors. Id. at 153-54.
-20- job that, in the absence of a contract with a private firm, the
[g]overnment itself would have had to perform," the firm "act[s]
under" a federal officer. Id. at 154.7
We recognize that there exists a spectrum of government
contracts: on one end of the spectrum -- the non-removable
end -- are traditional commercial agreements to purchase
off-the-shelf goods, while on the other end are contracts where,
as in Winters, the government exhibits total dominion and control
over the private entity's production of a product. Our decision
establishes no bright line, and we hold only that the nature of
the PCB-infused devices that GE produced for the government, at
the government's demand and with GE's close cooperation and
dedication of its facilities to government needs, places this case
on the removable side of the spectrum.8
7We further note that the "strict control" language in Winters v. Diamond Shamrock Chem. Co. was employed in the Fifth Circuit's analysis of the "nexus" element, rather than the "acting under" element, of the federal officer removal statute. 149 F.3d 387, 399 (5th Cir. 1998). In light of Chevron USA Inc. v. Plaquemines Parish, La., we doubt that this limitation can appropriately be employed to determine whether a contractor is acting under a federal officer. 146 S. Ct. 1052, 1062-63 (2026). In Plaquemines Parish, the Supreme Court warned against conflating the two requirements. Id. We need not opine on whether the "strict control" language is useful even as to the nexus element, beyond noting that Winters (and, for that matter, Watson) pre-dated Congress's loosening of the nexus standard. See Express Scripts, 119 F.4th at 186 (describing the amendment of § 1442(a)(1) in 2011). We discuss the applicable nexus standard below. 8 GE's contracts with the government distinguish this case
from cases where courts have rejected efforts by Monsanto to remove similar complaints to federal court (many of which Czerno relies
-21- Finally, we are unpersuaded by Czerno's arguments that
our decision in Shell Oil prohibits GE from removing this case.
There, dealing with claims against oil companies for fossil
fuel-related environmental damages, we declined to permit removal
because there was "simply no nexus between anything for which Rhode
Island seeks damages" -- specifically, selling oil and gas
products that were damaging to the environment and engaging in a
misinformation campaign about their products' impact on the
environment -- "and anything the oil companies allegedly did at
the behest of a federal officer." Rhode Island v. Shell Oil Prods.
Co., 979 F.3d 50, 60 (1st Cir. 2020), cert. granted, judgment
vacated on other grounds, 141 S. Ct. 2666 (2021) ("Shell Oil I")
(emphasis added); Shell Oil II, 35 F.4th at 53 n.6 (expressly
"adher[ing] to" the § 1442(a)(1) reasoning in Shell Oil I). That
analysis concerned the "relating to" element -- not, as Czerno
claims, the "acting under" element. Shell Oil I, 979 F.3d at 60;
see Moore, 25 F.4th at 34 n.2 (noting that Shell Oil I "described
the 'relating to' requirement as a 'nexus' between 'the allegations
in the complaint and conduct undertaken at the behest of a federal
officer'" (quoting Shell Oil I, 979 F.3d at 59)). Shell Oil I
does not suggest that, for the "acting under" element to be
on for her argument that removal is improper in toxic pollution cases). Monsanto did not have contracts with the federal government, unlike GE here. See, e.g., Washington v. Monsanto Co., 274 F. Supp. 3d 1125, 1129-30 (W.D. Wash. 2017).
-22- satisfied, the government must have specifically directed GE to
undertake the activities Czerno alleges caused her and her son's
injuries. And, to the extent Czerno argues that it does, we
reiterate that such a reading would be inconsistent with the
statutory text of § 1442(a)(1) and is foreclosed by Plaquemines
Parish. See 146 S. Ct. at 1063 (explaining that such an
interpretation "would leave the 'relating to' requirement with
little, if any, independent function" apart from the "acting under"
element).
2. "For or Relating To"
Having demonstrated that it acted under federal
officers' authority in developing PCB-infused electrical products,
GE must next show that the allegations in Czerno's complaint are
based on conduct "for or relating to" GE's work under federal
officers.9 28 U.S.C. § 1442(a)(1). The "for or relating to"
element, which we have referred to as the "nexus" element, Moore,
25 F.4th at 34 n.2, "sweeps broadly," Plaquemines Parish, 146
9 The parties disagree over whether the district court reached this issue. GE argues that the court reached and addressed both the "acting under" and "for or relating to" elements, while Czerno argues that the court reached only the former. While the district court did not delineate its discussion with respect to each requirement, it devoted two paragraphs to analyzing the nature of the alleged injuries and their relationship (in other words, their nexus) to GE's work for the federal government. So, GE is correct: the district court concluded that GE failed to show both that "it acted under a federal officer" and that its "conduct . . . closely related to the government's implementation of federal law." We thus address the parties' nexus arguments.
-23- S. Ct. at 1060, particularly following the amendment of the federal
officer removal statute in 2011. That year, Congress broadened
§ 1442(a)(1) to allow removal of claims not just "for" acts under
color of federal office, but also for claims "relating to" such
acts. 28 U.S.C. § 1442(a)(1) (emphasis added); see Express
Scripts, 119 F.4th at 186; Moore, 25 F.4th at 35 n.4; Removal
Clarification Act of 2011, Pub. L. No. 112-51, §2(b)(1), 125 Stat.
545 (2011). The post-amendment language of the statute does not
support a causation requirement, Moore, 25 F.4th at 34 n.2, 35,
and the broader "for or relating to" nexus allows defendants sued
for conduct that merely has some "association with or connection
with" their acts under a federal officer to remove the case to
federal court, id. at 35 n.4; see Plaquemines Parish, 146 S. Ct.
at 1060 (stating that the phrase "relating to" means "to stand in
some relation; to have bearing or concern; to pertain; refer; to
bring into association with or connection with" (quoting Morales
v. Trans World Airlines, Inc., 504 U.S. 374, 383 (1992)));
Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286, 292 (5th Cir.
2020). And for purposes of removal, "[a]ny single claim is
independently sufficient to satisfy the 'for or relating to'
requirement." Moore, 25 F.4th at 35.
Czerno's principal argument on appeal is that there is
no causal nexus between the allegations in her complaint and GE's
work for the government because her claim relates to the disposal
-24- of PCBs and the government never authorized GE to improperly
dispose of PCBs. This argument misses the mark for two reasons.
First, as discussed, the 2011 amendment to the federal
officer removal statute expanded the right of removal, so GE need
not prove that the work it did for the federal government directly
caused the injuries Czerno alleges -- it need only show that the
allegations "stand in some relation" to, or are in "association
with or connection with," GE's work for the government.
Plaquemines Parish, 146 S. Ct. at 1060 (quoting Morales, 504 U.S.
at 383); see Moore, 25 F.4th at 34.10 Accordingly, even accepting
that the government only directed GE to manufacture devices
containing PCBs and said nothing regarding disposal of PCBs from
the manufacturing process, removal is appropriate. Improper
disposal itself "relates to" GE's use and manufacture of products
containing PCBs. See Plaquemines Parish, 146 S. Ct. at 1060-62.
Second, Czerno severely understates the scope of her
complaint. Her complaint expressly seeks recovery from GE for its
use of PCB materials and manufacture of products containing
The district court missed the import of the amendment, 10
relying almost exclusively on pre-2011 decisions in its discussion of the nexus requirement. The only more-recent decision the district cited in this section is Attorney General v. Dow Chem. Co., 2024 WL 1740087 (D.N.J. Apr. 23, 2024) -- an unpublished, out-of-circuit decision, which similarly seemed to miss the import of the 2011 amendment and referred to the nexus element as a "causation" requirement. Id. at 9. Many of the cases Czerno relies on for her argument that removal is improper in toxic pollution cases suffer from the same flaw.
-25- PCBs -- not just for the improper disposal of PCBs. We have little
difficulty concluding that Czerno's allegations directly relate to
GE's production and use of Pyranol for the government. Czerno's
allegations encompass GE's manufacture of electrical equipment
"[b]etween 1932 and 1977," a timeframe which includes GE's wartime
manufacturing for the government. Moreover, her complaint relates
not just to GE's disposal and dumping, but also GE's "use" and
"manufacture" of Pyranol and Pyranol products. A few examples are
illustrative:
• In Count III of her complaint, Czerno demands recovery
for GE's "defective design" of Pyranol, as an
"unreasonably dangerous" material.
• In Count VI, Czerno seeks recovery for GE's "use [of]
PCBs in the manufacturing process despite knowing that
PCBs possessed" toxic qualities.
• In Counts IX and X, Czerno demands recovery for GE's
"ongoing use, misuse . . . and distribution of PCBs and
Pyranol," as well as its storage and disposal of the
same.
• In Count XIII, Czerno seeks damages for GE's "use,
disposal . . . and . . . maintaining" of "inherently"
ultrahazardous PCBs.
The district court erred by reading Czerno's complaint "as [a]
whole" and inferring the gravamen of her complaint to be that GE
-26- improperly dumped PCBs. It instead should have parsed out whether
"[a]ny single claim is independently sufficient to satisfy" the
"relating to" element. Moore, 25 F.4th at 35; Wright & Miller's
Federal Practice & Procedure § 3726 (4th ed. 2026) ("Section
1442(a)(1) authorizes removal of the entire action even if only
one of the controversies it raises involves a federal officer or
agency."). Given the allegations in the complaint, several of
Czerno's claims go far beyond improper disposal, and instead focus
directly on GE's use of PCBs.
Because the federal government expressly contracted with
GE to use and manufacture Pyranol and Pyranol-infused devices,
these claims are more than enough to satisfy the "relating to"
nexus element. This is not a close case where the relationship
between the allegations in the complaint and the defendant's acts
under a federal officer are "tenuous, remote, or peripheral."
Plaquemines Parish, 146 S. Ct. at 1061 (quoting Rutledge v. Pharm.
Care Mgmt. Ass'n, 592 U.S. 80, 94 (2020) (Thomas, J., concurring)).
Czerno's claims seeking recovery for GE's design, manufacture, and
use of Pyranol and Pyranol-infused devices are plainly "for or
relating to" GE's production of Pyranol and Pyranol-infused
devices under federal officers. 11 28 U.S.C. § 1442(a)(1).
11Because Czerno continues to pursue these claims and does not disclaim any of these allegations, she cannot hide from these allegations simply by arguing that the gravamen of her claims relates to disposal. As we have clearly stated, to defeat removal,
-27- Accordingly, GE has satisfied the "for or relating to" nexus
element of the statute.
C. Colorable Federal Defense
The remaining element of § 1422(a)(1) removal is whether
GE has sufficiently established that it possesses a "colorable
federal defense to the suit." See Moore, 25 F.4th at 34 (quoting
Shell Oil I, 979 F.3d at 59). The district court did not reach
this issue, though the parties, on appeal, have argued it. Though
we may, at our discretion, decide this matter too, see Moore, 25
F.4th at 36, we decline to do so. We instead remand this matter
to the district court to consider it in the first instance with
the guidance that "a federal defense is colorable unless it is
'immaterial and made solely for the purpose of obtaining
jurisdiction' or 'wholly insubstantial and frivolous.'" Id. at 37
(quoting Latiolais, 951 F.3d at 297).
III.
We reverse the district court's decision and remand the
case to the district court to decide whether GE has presented a
colorable federal defense.
a plaintiff must expressly renounce the claims that would otherwise give rise to federal officer removal jurisdiction. Express Scripts, 119 F.4th at 187; see Maine v. 3M Co., 159 F.4th 129, 139 (1st Cir. 2025). Czerno did no such thing. We cannot simply overlook the allegations of the complaint.
-28-