USCA4 Appeal: 24-1218 Doc: 60 Filed: 03/07/2025 Pg: 1 of 27
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 24-1218
STATE OF MARYLAND,
Plaintiff – Appellee,
v.
3M COMPANY,
Defendant – Appellant,
and
CORTEVA INC.; DUPONT DE NEMOURS INC.; EIDP, INC., f/k/a E.I. Dupont De Nemours & Company, Incorporated; CHEMOURS COMPANY,
Defendants.
Appeal from the United States District Court for the District of Maryland, at Baltimore. Richard D. Bennett, Senior U.S. District Judge. (1:23-cv-01836-RDB)
No: 24-1270
In re: AQUEOUS FILM-FORMING FOAMS PRODUCTS LIABILITY LITIGATION,
------------------------------
STATE OF SOUTH CAROLINA EX REL ALAN WILSON, in his official capacity as Attorney General of the State of South Carolina,
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CORTEVA INC.; DUPONT DE NEMOURS INC., New DuPont; EIDP, INC., f/k/a E. I. DuPont De Nemours & Company, Old DuPont; THE CHEMOURS COMPANY; THE CHEMOURS COMPANY FC, LLC,
Appeal from the United States District Court for the District of South Carolina, at Charleston. Richard M. Gergel, U.S. District Judge. (2:23-cv-05979-RMG)
Argued: October 30, 2024 Decided: March 7, 2025
Before AGEE and RUSHING, Circuit Judges, and FLOYD, Senior Circuit Judge.
Vacated and remanded by published opinion. Judge Agee wrote the opinion, in which Judge Rushing joined. Senior Judge Floyd wrote a dissenting opinion.
ARGUED: Paul D. Clement, CLEMENT & MURPHY, PLLC, Alexandria, Virginia, for Appellant. Victor Marc Sher, SHER EDLING LLP, San Francisco, California; Algernon Gibson Solomons III, SPEIGHTS & SOLOMONS, Hampton, South Carolina, for Appellee. ON BRIEF: Amir C. Tayrani, Katherine Moran Meeks, Zachary Tyree, Washington, D.C., Lauren R. Goldman, GIBSON, DUNN & CRUTCHER LLP, New York, New York, for Appellant. Anthony G. Brown, Attorney General, Patricia V. Tipon, Assistant Attorney General, Adam D. Snyder, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland; Stephanie D. Biehl, Ashley B. Campbell, SHER EDLING LLP, San Francisco, California; Scott E. Kauff, Derek Y. Sugimura, Alexander Latanision, LAW OFFICES OF JOHN K. DEMA, P.C., Rockville, Maryland; John D.S. Gilmour, Houston, Texas, Melissa E. Byroade, KELLEY DRYE & WARREN LLP, Washington, D.C., for Appellee State of Maryland. Alan M. Wilson, Attorney General, W. Jeffrey Young, Chief Deputy Attorney General, C.H. Jones, Jr., Senior Assistant Deputy Attorney General, Jared Q. Libet, Assistant Deputy Attorney General, Kristin M. Simons, Senior Assistant Attorney General, Danielle A.
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Robertson, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina; Jonathan M. Robinson, Frederick N. Hanna, Jr., Austin T. Reed, SMITH ROBINSON HOLLER DUBOSE & MORGAN, LLC, Columbia, South Carolina; Vincent A. Sheheen, Michael D. Wright, SAVAGE, ROYALL & SHEHEEN, LLP, Camden, South Carolina, for Appellee State of South Carolina.
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AGEE, Circuit Judge:
In this consolidated appeal, 3M Company challenges the denial of its attempts to
remove two mirroring lawsuits brought in state court by Maryland and South Carolina
(collectively, “the States”) to federal court under 28 U.S.C. § 1442(a)(1). When a private
entity like 3M invokes that provision—commonly referred to as the federal officer removal
statute—as its basis for removal, it must plausibly allege, among other elements, that the
conduct charged in the complaint was taken for or in relation to asserted federal authority.
See Anne Arundel Cnty. v. BP P.L.C., 94 F.4th 343, 347–48 (4th Cir. 2024).
This appeal asks if 3M satisfied that requirement by plausibly alleging that its
production of aqueous film-forming foam (“AFFF”) for the United States military related
to the charged conduct despite the States’ attempts to disclaim that conduct from the scope
of their complaints. The district courts credited the States’ respective disclaimers, and on
that basis rejected 3M’s bids for federal officer removal. For the reasons discussed below,
we disagree with their conclusion. We therefore vacate the district courts’ decisions and
remand for further consideration as to whether 3M has satisfied the other elements needed
to avail itself of a federal forum under § 1442(a)(1).
I.
A.
Some states have initiated litigation to hold chemical manufacturers responsible for
damaging the environment with certain manmade chemicals. Specifically, companies like
3M are being sued for their use of a class of synthetical chemicals—per- and
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polyfluoroalkyl substances (“PFAS”)—in their production of consumer and industrial
products.
PFAS have useful properties, including that they help repel heat, stains, and other
harsh factors, and are used in a wide range of goods like non-stick cookware and upholstery
shields that are sold directly to consumers. PFAS are also used in industrial products
including, as relevant here, 3M’s AFFF, a widely used firefighting foam.
One of 3M’s AFFF customers was the United States military, which deemed AFFF
valuable enough to use on military bases, airfields, and naval vessels to fight fuel fires. The
manufacture and sale of AFFF to the military is governed by rigorous specifications
administered by the Department of Defense, through the Naval Sea Systems Command,
which—until recently—required the use of certain PFAS in AFFF. Before the military
could procure AFFF from a private manufacturer like 3M, the AFFF had to be examined
to ensure it met the military’s specifications. And 3M’s AFFF evidently passed DOD
muster, because 3M manufactured and sold PFAS-containing AFFF to the United States
military for more than three decades. For clarity, we refer to the PFAS-containing AFFF
3M produced for the military as “Military AFFF.”
Their useful qualities notwithstanding, PFAS could pose a serious threat to the
environment. PFAS dissolve easily in water due to their chemical makeup, spread quickly
and broadly, and may remain in the environment indefinitely. In addition, PFAS can be
noxious to animals and other living organisms, and substantial exposure to the chemical
compounds could lead to significant health issues in humans.
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B.
In 2023, the States commenced PFAS-related litigation by filing lawsuits targeting
3M and other manufacturers for their role in allegedly contaminating Maryland and South
Carolina’s respective waterways by using PFAS in the production of their products.
1.
Maryland filed two overlapping lawsuits in state court against 3M for its alleged
contamination of Maryland waters, bringing the same seven state-law causes of action
against 3M in both complaints.1 The only meaningful difference in the complaints is that
one was directed toward 3M’s PFAS production through its manufacture of AFFF
generally—Military AFFF and otherwise—while the other was directed towards 3M’s
production of other PFAS-containing products and specifically excluded any AFFF. E.g.,
J.A. 46 (“Through this [non-AFFF complaint] the State does not, however, seek any
remediation . . . related to any PFAS contamination caused by AFFF . . . . The State’s
claims with respect to AFFF are the subject of a separate action.”).
3M promptly removed the non-AFFF suit to the District of Maryland under the
federal officer removal statute.2 According to 3M, removal of that action was proper
1 The causes of action against 3M are: (1) Strict Products Liability – Defective Design; (2) Strict Products Liability – Failure to Warn; (3) Public Nuisance; (4) Trespass; (5) Negligence; (6) Violation of Environment Article, Title 9, Subtitle 3; and (7) Violation of Environment Article, Title 9, Subtitle 4. 2 In both States’ lawsuits, 3M also removed the AFFF complaint to federal court. The States did not move to remand the AFFF complaints, nor is the removal of those complaints at issue in this case. We also note that 3M also initially raised federal enclave jurisdiction as a ground for removal in the States’ non-AFFF lawsuits, but no longer pursues removal on that basis. 6 USCA4 Appeal: 24-1218 Doc: 60 Filed: 03/07/2025 Pg: 7 of 27
despite Maryland’s disclaimer because the PFAS from 3M’s non-AFFF products
indistinguishably commingled with the PFAS from 3M’s Military AFFF. To the extent the
PFAS contamination came from Military AFFF, 3M intended to raise the government
contractor defense. And because the PFAS from both sources were commingled, PFAS
from 3M’s Military AFFF “inseparably contributed to any alleged ‘non-AFFF’ PFAS
contamination.” J.A. 21. Maryland, in turn, moved to remand the non-AFFF complaint to
state court, arguing that 3M had no basis for removal under 28 U.S.C. § 1442(a)(1).3
The district court agreed with Maryland. In so deciding, it gave Maryland’s
disclaimer dispositive effect, reasoning that by virtue of the disclaimer, the non-AFFF
complaint was limited in scope and precluded a connection between 3M’s PFAS
contamination and its federal authority. Consequently, the district court determined that
any possible federal defense would not be present. Maryland v. 3M Co., No. 23-cv-1836,
2024 WL 1152568, at *3 (D. Md. Feb. 12, 2024) (“[T]he explicit exclusion of AFFF from
this lawsuit renders it impossible for [3M] to be held liable for damages stemming from its
actions under federal authority, and so the requisite connection or association is missing.”
(cleaned up)). It thus remanded the non-AFFF complaint to state court.
3 We also note that once it removed the case, 3M also moved to transfer this complaint to the AFFF Products Liability Litigation MDL. The MDL Panel denied transfer but reasoned that “if it becomes clearer that [Maryland’s] AFFF and non-AFFF actions involve the same ground or surface waters,” transfer may eventually be appropriate. J.A. 219. 7 USCA4 Appeal: 24-1218 Doc: 60 Filed: 03/07/2025 Pg: 8 of 27
2.
Similar to Maryland’s strategy, South Carolina also filed two PFAS contamination
lawsuits in state court, bringing exclusively state-law claims against 3M.4 And like
Maryland, South Carolina’s otherwise overlapping complaints were bifurcated on the basis
that one was directed towards 3M’s PFAS production through AFFF products, while the
other was directed to remediate pollution from 3M’s non-AFFF PFAS production. E.g.,
J.A. 275–76 (“PFAS as defined in this Complaint expressly excludes [AFFF] . . . . The
State is not seeking to recover through this Complaint any relief for contamination or injury
related to AFFF or AFFF products used at airports, military bases, or certain industrial
locations.”).
3M again invoked § 1442(a)(1) to remove South Carolina’s non-AFFF complaint to
the District of South Carolina for the same reasons asserted in the Maryland case. South
Carolina then moved to remand to state court on similar grounds used by Maryland: that
the scope of its complaint, considering its disclaimer, expressly excluded any connection
to AFFF and therefore 3M’s federal work. As in the Maryland case, the South Carolina
district court agreed with the state and found that the disclaimer effectively precluded
federal officer removal. South Carolina v. 3M Co., No. 2:23-cv-05979, 2024 WL 1470056,
at *3 (D.S.C. Feb. 29, 2024) (concluding that the “disclaimers moot 3M’s government
contractor defense because, whether or not 3M meets the requirements for the defense, it
cannot be held liable in this case for PFAS contamination originating from AFFF,” and
4 The stated causes of action are: (1) Public Nuisance; (2) Private Nuisance; (3) Trespass; and (4) Violation of the South Carolina Unfair Trade Practice Act. 8 USCA4 Appeal: 24-1218 Doc: 60 Filed: 03/07/2025 Pg: 9 of 27
that “the charged conduct here is not connected to the alleged federal authority”). Finding
no basis for removal, it remanded the non-AFFF case to state court.
****
3M timely appealed both remand decisions and we consolidated the appeals for
review. We have jurisdiction under 28 U.S.C. § 1447(d). Cnty. Bd. of Arlington Cnty. v.
Express Scripts Pharmacy, Inc., 996 F.3d 243, 250 (4th Cir. 2021).
II.
Because they involve issues of subject matter jurisdiction, we review the district
courts’ decisions on whether to sustain federal officer removal de novo. Anne Arundel
Cnty., 94 F.4th at 347. The removing party bears the burden of convincing us that the
actions belong in federal court. W. Va. State Univ. Bd. of Governors v. Dow Chem. Co., 23
F.4th 288, 297 (4th Cir. 2022). To carry that burden, it must file a notice that includes “a
short and plain statement of the grounds for removal,” 28 U.S.C. § 1446(a), meaning there
must be “a plausible allegation” that federal jurisdiction is proper, Dart Cherokee Basin
Operating Co. v. Owens, 574 U.S. 81, 89 (2014) (explaining that a § 1446 notice of
removal is analyzed under the same scrutiny as Rule 8’s pleading requirements).
We recite some of 28 U.S.C. § 1442(a)(1)’s guiding principles before applying them
to 3M’s appeals.
By enacting the federal officer removal statute, Congress “promise[d] a federal
forum for any action against an ‘officer (or any person acting under that officer) of the
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United States or of any agency thereof, in an official or individual capacity, for or relating
to any act under color of such office.’” BP P.L.C. v. Mayor & City Council of Balt., 593
U.S. 230, 234–35 (2021) (quoting 28 U.S.C. § 1442(a)(1)). The statute’s purpose is to give
effect to the legislative principle that those acting at the federal government’s direction
should be able to defend themselves in federal—not state—court, lest states be able to
stymy the federal government’s operations. See Willingham v. Morgan, 395 U.S. 402, 405–
06 (1969) (recounting the statute’s history); Watson v. Phillip Morris Cos., 551 U.S. 142,
147–48 (2007) (same, and explaining how that purpose extends to protecting private parties
who assist the federal government). Coextensive with the “legislatively-spawned value
judgment that a federal forum should be available when particular litigation implicates a
cognizable federal interest,” § 1442(a)(1) is meant “to ensure a federal forum in any case
where a federal official or private actors acting on that official’s behalf may raise a defense
arising out of his official duties.” Gov’t of Puerto Rico v. Express Scripts, Inc., 119 F.4th
174, 185 (1st Cir. 2024) (cleaned up); see also Willingham, 395 U.S. at 406–407.
Accordingly, § 1442(a)(1)’s promise of a federal forum is necessarily broad.5 So
rather than “narrow, grudging interpretation[s] of the statute,” Jefferson Cnty. v. Acker, 527
5 Indeed, as one of our sister circuits recognized in recounting the statute’s history, Congress has shown a steady inclination towards broadening the statute. See Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286, 290 (5th Cir. 2020) (“Some version of this statute has been in effect since 1815. . . . Over time, though, Congress has broadened the removal statute repeatedly.”). Particularly relevant to this appeal, Congress saw fit to amend the federal officer removal statute in 2011 to “broaden[] the universe of acts that enable federal removal, such that there need be only a connection or association between the act in question and the federal office.” Sawyer v. Foster Wheeler LLC, 860 F.3d 249, 258 (4th Cir. 2017) (cleaned up). 10 USCA4 Appeal: 24-1218 Doc: 60 Filed: 03/07/2025 Pg: 11 of 27
U.S. 423, 431 (1999) (quoting Willingham, 395 U.S. at 407), “the statute must be ‘liberally
construed,’” Watson, 551 U.S. at 147 (quoting Colorado v. Symes, 286 U.S. 510, 517
(1932)). And under that broad scope, the general rules guiding removal—including that a
defendant may remove a case from state to federal court only if the federal court had
original jurisdiction to hear the case, see 28 U.S.C. § 1441(a)—are inapplicable. Cf.
Willingham, 395 U.S. at 406 (“[T]he right of removal under § 1442(a)(1) is made absolute
whenever a suit in a state court is for any act ‘under color’ of federal office, regardless of
whether the suit could originally have been brought in a federal court.”). Similarly, “the
ordinary presumption against removal does not apply” to federal officer removal. Cnty. Bd.
of Arlington Cnty., 996 F.3d at 251 (cleaned up). General removal principles are, in other
words, inverted when § 1442(a)(1) is at issue.
To that end, when a plaintiff sues a defendant that can plausibly invoke removal
under § 1442(a)(1), he relinquishes his otherwise ubiquitous power to select a state forum
instead of a federal one by writing his complaint a certain way. Generally, of course, a
“plaintiff is the master of the complaint,” and “the well-pleaded-complaint rule enables
him, by eschewing claims based on federal law, to have the cause heard in state court.”
Holmes Grp. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 831 (2002) (cleaned up).
But the federal officer removal statute “is an exception to the well-pleaded complaint rule”
insofar as it “allows suits against federal officers to be removed despite the nonfederal cast
of the complaint, and reflects a congressional policy that federal officers, and indeed the
Federal Government itself, require the protection of a federal forum.” Kircher v. Putnam
Funds Tr., 547 U.S. 633, 644 n.12 (2006) (cleaned up); see also Jefferson Cnty., 527 U.S.
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at 431 (“Under the federal officer removal statute, suits against federal officers may be
removed despite the nonfederal cast of the complaint.”).
With those principles in hand, we apply them to this appeal.
3M may sustain removal under § 1442(a)(1) if it plausibly alleges “(1) that it acted
under a federal officer, (2) that it has a colorable federal defense, and (3) that the charged
conduct was carried out for or in relation to the asserted official authority.” Anne Arundel
Cnty., 94 F.4th at 347–48 (internal quotations omitted). The district courts found that 3M
had not met its burden as to the third element based on the States’ disclaimers, which
purported to establish that they were not charging 3M with conduct that was related to its
production and sale of Military AFFF. For the reasons discussed below, we hold that
finding is erroneous.
To satisfy the third element under the federal officer removal statute, often referred
to as the nexus or connection requirement, “a defendant must show it is being sued for an
act or acts that it claims were done under—or related to acts done under—federal
authority.” Anne Arundel Cnty., 94 F.4th at 349. In considering whether the relevant
conduct relates to a contractor’s federal work, “‘[w]e credit Defendants’ theory of the case
when determining whether’ there is such a connection or association.” Cnty. Bd. of
Arlington Cnty., 996 F.3d at 256 (quoting Isaacson v. Dow Chem. Co., 517 F.3d 129, 137
(2d Cir. 2008) (emphasis added)); see Jefferson Cnty., 527 U.S. at 432. Importantly, a
removing defendant need not establish “an airtight case on the merits in order to show the
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required causal connection.” Jefferson Cnty., 527 U.S. at 432. That said, a proponent for
removal decidedly does not satisfy the nexus element by alleging only that the “plaintiff’s
entire civil action in a general sense” is related to the defendant’s federal work. Anne
Arundel Cnty., 94 F.4th at 348.
We first reject the notion that the States’ purported disclaimers of 3M’s federal
conduct were dispositive. The States invite us to credit their disclaimers, just as the district
courts did. They contend those complaints were tailored to preclude any connection to
3M’s federal conduct by excluding AFFF as a source of the relevant PFAS contamination.
Under their theory, we should credit how they defined the charged conduct which, by
definition, excludes 3M’s production and sale of Military AFFF, thus severing 3M’s
alleged federal connection. But that theory ignores the unique lens through which we
consider federal officer removal.
Two general points illustrate why we cannot accept the States’ attempts to immunize
their complaints from federal officer removal with their purported disclaimers in this case.
First, as we have noted, a plaintiff in the § 1442(a)(1) removal context is no longer the
master of its complaint in the sense that it cannot preempt removal to a federal court merely
because the complaint is glossed only in state law. Instead, we look to a defendant’s well-
pleaded facts of removal to see if it is entitled to a federal forum despite the “nonfederal
cast of the complaint.” Kircher, 547 U.S. at 644 n.12. Second, in this context we must
credit a removing defendant’s theory of the case as to whether the conduct with which it
has been charged is related to its federal work. Cnty. Bd. of Arlington Cnty., 996 F.3d at
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256. Under these principles, we cannot blindly accept the States’ theory of charged conduct
and the connection to 3M’s federal work.
As our sister circuits agree, “[a] disclaimer that requires a state court to determine
the nexus ‘between the charged conduct and federal authority’ is not a valid means of
precluding removal.” Gov’t of Puerto Rico, 119 F.4th at 188 (quoting Willingham, 395
U.S. at 409); Baker v. Atl. Richfield Co., 962 F.3d 937, 945 n.3 (7th Cir. 2020) (rejecting
plaintiffs’ similar attempted disclaimer where the underlying dispute was a pollutant’s
source, because the defendant “allege[d] that its Freon-12 production [for the government]
resulted in waste streams that contained lead and arsenic,” which were “the two main toxins
[plaintiffs] claim harmed them”). We likewise decline to give dispositive effect to the
States’ disclaimers.
The States fight this conclusion by pointing to Wood v. Crane Co., 764 F.3d 316
(4th Cir. 2014), a case where we accepted a plaintiff’s disclaimer as to a potential federal
source of his mesothelioma as a jurisdictional chess move to keep his case in state court.
In Wood, the plaintiff sued the Crane Company for exposing him to asbestos while working
with asbestos-containing valves and gaskets that Crane produced for the Navy. Id. at 318.
Crane invoked federal officer removal on the basis that it could assert a federal contractor
defense as to the valves, but did not make the same contention with respect to the gaskets.
Id. at 318–19. After the plaintiff disclaimed any claims related to the valves, the district
court remanded the case to state court, and only then did Crane assert that the gaskets also
served as a proper ground for federal officer removal because they also contributed to the
plaintiff’s injury and were produced as part of Crane’s federal work. Id. at 319–20. We
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upheld the remand because Crane’s federal officer removal claim based on the gaskets was
untimely under 28 U.S.C. § 1446(b). See id. at 321–22.
But Wood does not bear the weight the States assign to it. There, Crane’s only timely
theory of removal was entirely different than that which 3M asserts here. Crane’s notice of
removal alleged that one source of an indivisible injury gave rise to federal officer removal
but failed to timely contest that that federal connection was inextricably linked to its federal
conduct and ensuing indivisible injury. See id. at 322–24. For Wood to control here, 3M’s
allegation that PFAS from its Military AFFF production and its non-AFFF production were
inextricably linked would have had to be untimely. It was not. Put another way, Crane’s
theory of the case that could have otherwise invalidated the plaintiff’s disclaimer was never
properly before us such that we could consider or ultimately credit it. That difference alone
renders Wood inapposite.
At bottom, the States’ artful pleading does not trump 3M’s theory for removal here.
Accordingly, the States’ disclaimers are not dispositive to whether the third element for
establishing removal has been satisfied. The district courts erred in holding otherwise.
That said, our conclusion that the States’ disclaimers are not dispositive does not
necessarily mean that 3M has satisfied the third element; it still bears the burden of showing
that it satisfied the requisite nexus. Accordingly, we ask if, under 3M’s theory of the case,
it plausibly alleged that its charged conduct was related to its federal work. See Anne
Arundel Cnty., 94 F.4th at 349. Under that theory, the nexus element would be satisfied
because PFAS from different sources commingle to the point that it is impossible to
identify the precise source of a contaminant once those chemicals seep into the relevant
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waterways. Some of the PFAS contamination charged by the States came from Military
AFFF, so any remediation would necessarily implicate work that 3M did for the federal
government.
Though it may not be an “airtight case on the merits,” it does not have to be,
Jefferson Cnty., 527 U.S. at 432, and we conclude that 3M’s theory of connection holds
sufficient water to establish this element under the federal officer removal statute’s broad
scope. Both States plead general PFAS contamination near military bases where 3M alleges
it sold Military AFFF. On this record, we have no trouble considering as plausible 3M’s
allegations that some of the PFAS contamination at issue even in the non-AFFF complaints
may come from their Military AFFF production.
3M identifies two pertinent questions that highlight how the charged conduct relates
to its federal work. First, deciding whether certain PFAS contamination came from 3M’s
Military AFFF or from its non-AFFF products presents a challenging causation question—
one that 3M argues is impossible to bifurcate—that will ultimately fall to a factfinder.
Second, assuming that causation question can be answered, the same factfinder must then
apportion how much of a given sample of PFAS contamination came from Military AFFF
compared to non-AFFF products. Whatever factfinder ultimately decides liability in this
case will have to disentangle those questions. The need to unravel such challenging
questions in this case establishes that 3M’s federal work is inextricably related to the
charged conduct. See Baker, 962 F.3d at 943–45.
Baker indicates that a company like 3M satisfies the nexus element for removal if
the factfinder will need to identify the sources of pollutants where the company has been
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charged with polluting the environment through manufacturing some products for the
federal government. In Baker, residents of a housing complex sued a host of industrial
manufacturing companies for contaminating the soil around the site with harmful
chemicals. Id. at 940. The plaintiffs argued that the relevant pollution came from the
chemical companies’ general consumer operations, while the chemical companies invoked
federal officer removal on the basis that some of the pollution came from their production
of goods for the federal government during World War II. Id. The residents opposed
removal on the ground that the companies failed to establish the nexus requirement because
they had not shown that the plaintiffs’ injuries were caused by the companies’ federal work.
See id. at 943–44. The Seventh Circuit disagreed and concluded that the companies
established the nexus element because the plaintiffs’ “questions about whether the
Companies’ pollution that allegedly caused the Residents’ injuries flowed from the
Companies’ specific wartime production for the federal government or from their more
general manufacturing operations outside those confines” were “merits questions that a
federal court should decide.” Baker, 962 F.3d at 944 (citing Willingham, 395 U.S. at 409)
(emphasis in original).
Because 3M has plausibly alleged that the PFAS intermingled to the point that it is
impossible to identify their source, we can plausibly infer that 3M’s Military AFFF
contributed to at least a “portion of their relevant conduct.” Id. at 945. Thus, “[g]iving [it]
the benefit of all reasonable inferences from the facts alleged,” we conclude that 3M has
satisfied the nexus requirement. Id. After all, the federal officer removal statute’s purpose
is to provide a federal forum “when particular litigation implicates a cognizable federal
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interest,” like holding a government contractor liable for producing products for, and in
line with the specifications, of the United States military. Gov’t of Puerto Rico, 119 F.4th
at 185 (internal quotations omitted). Where the parties dispute difficult factual questions
about that federal interest, a contractor acting at the government’s direction “should have
the opportunity to present their version of the facts to a federal, not a state, court.”
Willingham, 395 U.S. at 409; Gov’t of Puerto Rico, 119 F.4th at 189 (“To the extent the
parties raise factual disputes about the scope of a defendant’s federal obligations, Congress
gave federal officers ‘the protection of a federal forum’ in which to resolve those disputes.”
(quoting Willingham, 395 U.S. at 407)).
If, on the other hand, a plaintiff concedes that those kinds of difficult questions are
unnecessary for purposes of establishing liability, it may remain in state court. See Illinois
ex rel. Raoul v. 3M Co., 111 F.4th 846, 849 (7th Cir. 2024). In Raoul, Illinois sued 3M for
PFAS contamination emanating from a single facility, disclaiming contamination from any
other facility. Id. at 847–48. 3M removed the suit under 28 U.S.C. § 1442(a)(1), alleging
that some of the same PFAS contamination could have come from Military AFFF that was
being stored at a military arsenal twenty-five miles up the river. Id. at 848. But Illinois
“clearly and unequivocally conceded at oral argument that it would not seek relief against
3M for mixed PFAS contamination” and “expressly agreed that a factfinder will not need
to apportion the PFAS contamination between sources.” Id. at 849. That concession meant
that “[i]f even a morsel of contamination [was] not from PFAS produced at the [non-
military] Facility, . . . the State’s recovery [was] barred.” Id. The Seventh Circuit affirmed
the district court’s remand to state court, concluding the case fell “outside the scope of
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Baker” because Illinois’ concession mooted the causation and apportionment questions 3M
now cites.6 Id.
Raoul was published after briefing in this appeal concluded, but both parties
submitted letters addressing it under Fed. R. App. P. 28(j). Soon thereafter, we asked the
States whether they intended to make a similar concession as Illinois did in Raoul such that
their recovery would be barred if “even a morsel of contamination” derived from Military
AFFF. ECF No. 52. The States made clear they did not so concede, instead arguing that
such a concession was unnecessary because, despite the inevitable presence of the
causation and apportionment questions in state proceedings, there was still “no federal
connection to the non-AFFF PFAS contamination that is the charged conduct in these
lawsuits.” ECF No. 53.
For the reasons just discussed, we disagree with the States. In Raoul, “100% of th[e]
contamination must [have been] sourced from” the single, geographically limited facility
for the state to recover. 111 F.4th at 849. As a result, no state factfinder would need to
“apportion the PFAS contamination between sources.” Id. But here, the States envision
recovering for mixed PFAS contamination from numerous geographic locations. Even if
they cannot ultimately recover for PFAS contamination from Military AFFF based on the
scope of their complaints, a factfinder must, unlike in Raoul, still decide the important
6 The Raoul court determined that Illinois’ concession meant that 3M failed the “colorable federal defense” element of federal officer removal. Raoul, 111 F.4th at 849. However, its reasoning is sound in comparing it with the relevant parts of Baker discussed previously. 19 USCA4 Appeal: 24-1218 Doc: 60 Filed: 03/07/2025 Pg: 20 of 27
causation and allocation questions. And as stated, those are merits questions that belong in
federal court. Cf. Gov’t of Puerto Rico, 119 F.4th at 189; Baker, 962 F.3d at 944.
In sum, we hold that 3M’s Military AFFF production is inextricably related to the
States’ general allegations of PFAS contamination, notwithstanding their attempts to draw
a line between 3M’s federal and non-federal work.
Now satisfied that 3M meets the nexus element of the federal officer removal
statute, “we turn to whether the case should be remanded to the district court for a ruling
on the remaining two requirements for federal officer removal”—that it (1) acted under a
federal officer and (2) has a colorable federal defense—or if we should conduct the rest of
the analysis in the first instance, as 3M requests. Cnty. Bd. of Arlington Cnty., 996 F.3d at
254. That decision is discretionary, but we believe it best here to follow the general rule
that “federal appellate courts should not consider issues that were not first addressed by the
district court.” Id. (citing Bakker v. Grutman, 942 F.3d 236, 242 (4th Cir. 1991)). In County
Board of Arlington County, we went on to consider the remaining federal officer removal
elements despite the district court not having done so under the “unique circumstances” of
that appeal, including the fact that the other elements had “been fully briefed.” Id. Because
similarly unique circumstances are not present here, we will not exercise the same
discretion and will leave it to the district courts to consider whether 3M is otherwise entitled
to federal officer removal in each case.
We note that this case is likely one where “the acting-under and causal-nexus
prongs . . . collapse into a single requirement.” Mayor & City Council of Balt. v. BP P.L.C.,
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31 F.4th 178, 228 (4th Cir. 2022) (cleaned up). But though the district courts mentioned
the colorable defense element, their findings on that element stemmed entirely from their
decisions—which we now hold were misguided—to give the States’ disclaimers
dispositive effect. See Maryland v. 3M Co., 2024 WL 1152568, at *3 (noting that “3M
fail[ed] to demonstrate the . . . colorable federal defense to sustain removal to federal
court,” because the State “abandoned any claims in this case that would allow 3M to utilize
the government contractor defense”); South Carolina v. 3M Co., 2024 WL 1470056, at *3
(reasoning that “the disclaimers moot 3M’s government contractor defense because,
whether or not 3M meets the requirement for the defense, it cannot be held liable in this
case for PFAS contamination originating from AFFF”). The States’ briefing before us did
the same thing, and even 3M’s briefing on these important remaining elements was
perfunctory. And the parties did not touch on the colorable federal defense at oral argument.
This is not a case where the remaining elements have been robustly engaged throughout
the process.
Instead of deciding these issues for the first time without the benefit of full briefing,
we find the better course is to allow the district courts to decide in the first instance whether
3M plausibly alleged a colorable federal defense in each case with the understanding that
3M satisfied the nexus element for removal.
III.
Despite the States’ artful crafting of their complaints, 3M’s notices of removal
plausibly alleged that the conduct for which the States sued them is at least related to the
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company’s federal work. We therefore vacate the district courts’ decisions and remand for
consideration of whether 3M satisfied the other elements needed for federal officer
removal, should the States continue to challenge removal, as well as such other necessary
proceedings consistent with this opinion.
VACATED AND REMANDED
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FLOYD, Senior Circuit Judge, Dissenting:
Maryland and South Carolina sought remediation for alleged harm to natural
resources within their boundaries due to 3M’s production of products containing PFAS.
Each state filed two actions: one alleged harm from production of PFAS-containing
firefighting foam used at military installations and commercial airports, referred to
generally as AFFF; the other alleged harm from non-AFFF sources including “food
packaging, carpeting, cookware, clothing, and upholstery” manufactured for the consumer
market. J.A. 43. 3M removed both suits to district court. The district court then remanded
the States’ non-AFFF suits, which raise exclusively state law claims, to state court because
it found the States’ disclaimers on recovery from AFFF effective.
The majority vacates those remand orders, holding that, under 3M’s theory of the
case, the non-AFFF suits are sufficiently “relat[ed] to” acts taken under federal authority
within the meaning of the relevant removal statute, 28 U.S.C. § 1442(a)(1). However, I
would affirm the district court’s remand orders. I respectfully dissent.
I agree with the majority that the federal officer removal statute serves an important
purpose in our courts. It functions to “protect against the interference with federal
operations that would ensue if a state were able to arrest federal officers and agents acting
within the scope of their authority and bring them to trial in a state court for an alleged
state-law offense.” Mayor and City Council of Baltimore v. BP P.L.C., 952 F.3d 452, 461
(4th Cir. 2020) (noting avoidance of prejudice against unpopular federal law or federal
officials, impediments to enforcement of federal law, or inability to assert federal defenses
as goals of statute), vacated on other grounds, 593 U.S. 230 (2021). And I too
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acknowledge that the statute must be “liberally construed” and that the “ordinary
‘presumption against removal’ does not apply.” Id. (quoting Betzner v. Boeing Co., 910
F.3d 1010, 1014 (7th Cir. 2018)).
Even so, I believe the district court properly granted the States’ motions to remand
these cases to state court. While our Court and others have recognized that a broad range
of conduct satisfies the nexus requirement for purposes of federal officer removal
jurisdiction, I would not read the removal statute to sweep so broadly to include the States’
non-AFFF claims in the present consolidated appeals.
My view is guided by the factual dissimilarities between other cases considering the
nexus issue and the one before us, starting with Baker v. Atlantic Richfield Co., 962 F.3d
937 (7th Cir. 2020). In Baker, the complained-of contaminants—lead and arsenic—were
components of the Freon-12 that removing defendants had produced for the federal
government during World War II. See id. at 945 n.3. The plaintiffs sought to disclaim
relief from harm alleged to have occurred during the defendants’ wartime production and
leave open only the possibility of recovery for lead and arsenic pollution generated outside
that time frame. See id. at 945. Unlike the State plaintiffs before us, the Baker plaintiffs
sought to excise recovery for a particular period of defendants’ conduct (which resulted in
lead and arsenic pollution) and to recover only for that same pollution produced at the same
facility at different times, when the facility was not manufacturing products for the federal
government. See id. In other words, I think the case we decide today is distinguishable
from Baker because South Carolina and Maryland seek to recover from harm resulting
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from a discrete category of consumer products unrelated to 3M’s federal conduct of
manufacturing firefighting foam to military specifications.*
Other decisions ruling on this aspect of federal officer removal likewise reveal
stronger links “between the charged conduct and asserted official authority” than the one
here. Baker, 962 F.3d at 943. In Latiolais v. Huntington Ingalls, Inc., an en banc Fifth
Circuit held that the defendant shipyard seeking removal showed that the nexus
requirement was satisfied. 951 F.3d 286, 296 (5th Cir. 2020). The plaintiff, Latiolais,
worked as a machinist at the shipyard and alleged his mesothelioma was caused by asbestos
exposure when the defendant refurbished a U.S. Navy ship pursuant to a federal contract.
See id. at 289–90. The court rejected the plaintiff’s argument that the asbestos exposure
did not meet the nexus requirement because the defendant “performed the refurbishment
and, allegedly, the installation of asbestos pursuant to directions of the U.S. Navy.” Id. at
296. The First Circuit also declined to credit the Commonwealth of Puerto Rico’s
purported disclaimer of “relief relating to any federal program” in defendant Caremark’s
prescription drug rebate negotiations, which plaintiff Puerto Rico contended improperly
inflated the price of insulin and other medications. Gov’t of Puerto Rico v. Express Scripts,
* More recently, the Seventh Circuit decided Illinois ex rel. Raoul v. 3M Co., 111 F.4th 846 (7th Cir. 2024). Raoul presented similar facts to the case before us, except for a disclaimer of relief related to mixed PFAS contamination—a disclaimer the plaintiffs in this case did not make. See id. at 848–49. The Raoul court permitted the case to remain in state court because the disclaimer foreclosed the possibility of a “colorable federal defense.” Id. at 849. But I disagree with the implicit holding in Raoul that the nexus requirement was satisfied under the facts of that case for the same reasons I disagree with the outcome here: the tenuous connection between the non-AFFF claims and actions taken under federal authority. 25 USCA4 Appeal: 24-1218 Doc: 60 Filed: 03/07/2025 Pg: 26 of 27
Inc., 119 F.4th 174, 181–82 (1st Cir. 2024). The court recognized that Caremark’s
negotiations concerned private insurance plans and federally administered insurance plans
at the same time; there were no federal-only negotiations, and no way to separate them for
purposes of recovery. See id. at 191–92. Therefore, the Commonwealth’s claims remained
in federal court. Id. at 194.
Finally, our most recent discussion of this issue: Sawyer v. Foster Wheeler LLC,
860 F.3d 249 (4th Cir. 2017). In Sawyer, we reversed the district court’s order remanding
the litigation to state court. Id. at 252–53. Like the Latiolais plaintiff, the Sawyer plaintiff
was employed at a shipyard, worked on U.S. Navy vessels, and was allegedly exposed to
asbestos during that time. Id. His estate brought an action in state court against Foster
Wheeler, a boiler manufacturer, alleging that it had failed to warn him of the dangers of
asbestos used in the boilers. Id. However, in assessing whether this conduct “relate[d] to”
an act taken under federal authority, 28 U.S.C. § 1442(a)(1), we determined it was
sufficiently related because “the Navy dictated the content of warnings” on the boilers and
Foster Wheeler installed them according to Navy requirements. Sawyer, 860 F.3d at 258.
I am concerned that today’s decision will sweep lawsuits properly before state
courts into federal fora, at least to the extent it concerns a given claim’s nexus to acts under
federal authority. The decisions outlined above share an important attribute: the
complained-of conduct could not be separated from the relevant federal authority. See
Baker, 962 F.3d at 945 n.3 (lead and arsenic pollution from facility where government-
contractor produced same pollution); see also Express Scripts, 119 F.4th at 191
(pharmaceutical price negotiations were not separated into “federal” and “non-federal”
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components); Latiolais, 951 F.3d at 289–90 (asbestos exposure from work on Navy ship
at shipyard); Sawyer, 860 F.3d at 258 (same). In this case, 3M seeks to remove a claim
seeking recovery for pollution from products made for and sold on the consumer market;
the majority concludes that the causal nexus is satisfied because the resulting pollutants are
commingled in the environment. I believe that this connection is too tenuous to support
removal jurisdiction—while some of the pollution may be commingled, that does little to
alter the fact that the non-AFFF PFAS pollution is caused by 3M’s manufacturing activities
that are entirely unrelated to its work as a government contractor.
As I see it, the court reads the nexus requirement so broadly as to move toward
foreclosing state courtrooms to plaintiffs bringing state-law claims against defendants,
when those defendants in turn identify even the slightest connection between the claims at
issue at work they have performed as government contractors. But “[o]ur federal system
trusts state courts to hear most cases—even big, important ones that raise federal defenses.”
City of Hoboken v. Chevron Corp., 45 F.4th 699, 705 (3d Cir. 2022). Given what I see as
the scant connection shown between 3M’s production of consumer products and its AFFF
production, I would trust the courts of Maryland and South Carolina to hear these cases
and ensure any liability is apportioned properly.
Because I do not think the alleged non-AFFF PFAS pollution providing the basis
for the State’s claims sufficiently relates to 3M’s acts performed for the federal
government, I would affirm the district court’s remand orders. The majority does not, and
so I respectfully dissent.