United States Court of Appeals For the First Circuit
No. 23-1362
STATE OF NEW HAMPSHIRE,
Plaintiff, Appellee,
v.
3M COMPANY,
Defendant, Appellant,
E.I. DUPONT DE NEMOURS & COMPANY; CHEMOURS COMPANY, f/k/a THE CHEMOURS COMPANY, LLC; CORTEVA, INC.; DUPONT DE NEMOURS, INC.,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Landya B. McCafferty, U.S. District Judge]
Before
Rikelman, Howard, and Kayatta, Circuit Judges.
Michael A. Scodro, with whom Gary A. Isaac, Avi M. Kupfer, Mayer Brown LLP, Joseph A. Foster, Mark C. Rouvalis, Viggo Fish, and McLane Middleton were on brief, for appellant. Kenneth A. Sansone, with whom SL Environmental Law Group, John D.S. Gilmour, Lana M. Rowenko, Kelley Drye & Warren LLP, John M. Formella, Attorney General of New Hampshire, Anthony J. Galdieri, Solicitor General of New Hampshire, and Christopher G. Aslin, Senior Assistant Attorney General of New Hampshire, Environmental Protection Bureau, were on brief, for appellee. March 27, 2025 KAYATTA, Circuit Judge. In 2019, New Hampshire filed on
behalf of its residents two lawsuits in state court against
3M Company ("3M") and several other chemical companies that have
produced synthetic chemical substances to which the parties refer
as "PFAS." The lawsuits each assert that the defendants designed
defective PFAS products, negligently peddled those products to New
Hampshire users, and concealed vital information about PFAS
toxicity from unwitting users and regulators. The alleged result
has been widespread PFAS contamination of the state's natural
resources -- including its water, soil, vegetation, and animal
life -- for which New Hampshire seeks to hold the companies
responsible under state law.
The two lawsuits differ in one key respect: One seeks
damages only for PFAS from a class of products called aqueous film-
forming foam (AFFF). The complaint in that suit -- the "AFFF
Suit" -- explicitly disclaims recovery for PFAS-containing non-
AFFF products. By contrast, the other suit seeks damages only for
injuries attributable to PFAS-containing non-AFFF products,
explicitly disclaiming recovery for AFFF PFAS. We refer to that
lawsuit -- the subject of this interlocutory appeal -- as the "Non-
AFFF Suit."
This appeal poses three questions: (1) whether we have
appellate jurisdiction over this appeal; (2) whether this case was
removable pursuant to the federal officer removal statute, 28
- 3 - U.S.C. § 1442(a)(1); and (3) whether 3M timely attempted removal
pursuant to 28 U.S.C. § 1446(b)(3). We conclude that we have
appellate jurisdiction. And because we agree with the district
court that 3M untimely attempted removal, we affirm. We therefore
need not finally decide whether the removal would have comported
with the federal officer removal statute had it been timely. Our
reasoning follows.
I.
In July 2019, 3M removed the AFFF Suit to federal court
under the federal officer removal statute on the grounds that the
AFFF at issue likely included AFFF made by 3M for what was then
the Pease Air Force Base located in Rockingham County, New
Hampshire, under the direction of the U.S. military. New Hampshire
did not dispute the removal of the AFFF Suit, which was eventually
transferred to the District of South Carolina to become part of
ongoing multidistrict litigation (MDL) for AFFF products pending
in that court. See In re Aqueous Film-Forming Foams Prods. Liab.
Litig., 357 F. Supp. 3d 1391 (J.P.M.L. 2018).
Meanwhile, this Non-AFFF Suit proceeded in state court.
Over the next three years, the state court dismissed New
Hampshire's trespass and public trust claims. In response, on
August 25, 2021, New Hampshire filed a second amended complaint
(the "complaint"), which remains the operative complaint.
- 4 - In December 2021, New Hampshire filed its initial
disclosures in this case. The disclosures included a non-
exhaustive list of more than 200 sites that New Hampshire alleged
were contaminated with non-AFFF PFAS.1 In the disclosures, New
Hampshire warned that some of the documents concerning the
disclosed sites may reference "sites with connections to the use
of [AFFF]," but reiterated that the state was not seeking recovery
for any AFFF-related injury.
Four months later, 3M removed this case. To explain its
removal, 3M pointed to its own independent investigation, which
indicated that PFAS from an AFFF product called MilSpec AFFF that
3M manufactured at the direction of the U.S. military for Pease
Air Force Base had plausibly commingled with non-AFFF PFAS
pollution in nearby bodies of water, such as the Great Bay Estuary.
Repeatedly stressing that the state alleged "statewide"
contamination by non-AFFF PFAS, including contamination in an area
encompassing Pease Air Force Base, 3M argued that the injuries
alleged in the Non-AFFF Suit were plausibly attributable at least
in part to MilSpec AFFF. And once it became apparent that
"contamination of [any] of the at-issue natural resources
plausibly came from AFFF used by the military in addition to non-
1 For simplicity, we refer to contamination derived from AFFF sources as "AFFF PFAS," contamination derived from non-AFFF sources as "non-AFFF PFAS," and contamination derived from AFFF that 3M produced for the government as "MilSpec AFFF PFAS."
- 5 - AFFF sources," reasoned 3M, this case "relate[d] to" that AFFF, no
matter that the state only sought damages for non-AFFF
contamination. 3M was therefore entitled, 3M argued, to a federal
forum in which it would "'rais[e] the production of MilSpec AFFF
as a defense or an alternative theory' of causation."
New Hampshire moved to remand the case. On March 29,
2023, the district court agreed that this case belongs in state
court, citing two independent justifications. See New Hampshire
v. 3M Co., 665 F. Supp. 3d 215, 235 (D.N.H. 2023). First, the
removal of the Non-AFFF Suit did not comport with the federal
officer removal statute. See id. Second, even if the removal did
comport with the statute, 3M untimely sought removal. See id.
On April 13, 3M filed a timely notice of appeal. The
next day, New Hampshire asked the district court to "execute" the
remand. The court agreed. But it delayed the formal remand until
April 26 so 3M could -- if it so chose -- file for a stay pending
appeal. 3M did not do so, and the case formally returned to state
court on May 2.
Before the parties filed their appellate briefs, New
Hampshire filed a motion for summary disposition, arguing that
this court lacked jurisdiction to hear 3M's appeal. We denied the
motion without prejudice, and New Hampshire's appellate brief
reiterates the state's jurisdictional arguments.
- 6 - II.
We begin with New Hampshire's threshold contention that
we lack appellate jurisdiction. New Hampshire highlights that 3M
declined the district court's invitation to request a stay of the
remand order. As a result, the case has formally returned to state
court, leaving this court without a "formal procedural mechanism"
to retrieve it. In the state's view, this case's enforced exile
to state court deprives us of the ability to hear this appeal.
New Hampshire relies on our decision in Forty Six Hundred
LLC v. Cadence Education, LLC, 15 F.4th 70 (1st Cir. 2021). There,
we quoted precedent observing that "once a district court has
decided to remand a case and has so notified the state court, the
district judge is without power to take any further action." Id.
at 78 (citation omitted). Hence, reasons New Hampshire, it is too
late to try to undo the remand. But that quotation only concerned
district courts' lack of power to revisit "cases that fall within
the compass of 28 U.S.C. § 1447(d)," which bars review of certain
types of remand orders. Id. This is not such a case. That same
statutory provision explicitly provides that the rejection of
removal under § 1442(a)(1) is subject to appellate review. See 28
U.S.C. § 1447(d).
In Forty Six Hundred, we also noted that no "formal
procedural mechanism" exists to return a wrongly remanded case to
federal court. 15 F.4th at 80. Nevertheless, we explicitly
- 7 - affirmed our jurisdiction over an otherwise-reviewable remand
order,2 expressing our "confiden[ce]" that, should we find that
the case should not have been remanded, "the district court [could]
enlist the state court's cooperation and restore the action to its
own docket." Id. at 79–81. Similarly, we see no reason here to
doubt that "general principles of comity, cooperation, and
communication between state and federal courts" will secure the
retrieval of the case if removal was proper. Id. at 80.
Taking a different tack, New Hampshire argues that "3M
has waived its right to appeal" or to request that the district
court "retrieve the case from state court" by failing to seek a
stay. Forty Six Hundred did recognize the potential viability of
"waiver or estoppel" arguments in this context. Id. at 79. But
waiver generally requires actions that signify a "clear and
unequivocal" intent to relinquish a specific right, including the
right to a federal forum. Northrop Grumman Tech. Servs., Inc. v.
DynCorp Int'l LLC, 865 F.3d 181, 186 (4th Cir. 2017) (stating that
waiver of a party's right to removal must be "clear and
unequivocal"); accord Rock Hemp Corp. v. Dunn, 51 F.4th 693, 701
(7th Cir. 2022); PR Grp., LLC v. Windmill Int'l, Ltd., 792 F.3d
2 Our sister circuits have also concluded that, for cases exempt from 28 U.S.C. § 1447(d)'s restrictions, "the certification of the remand order imposes no independent bar on either our jurisdiction or the district court's jurisdiction." Hammer v. HHS, 905 F.3d 517, 525 (7th Cir. 2018) (collecting cases).
- 8 - 1025, 1026 (8th Cir. 2015); see also United States v. Sastrom, 96
F.4th 33, 40 (1st Cir. 2024) (invoking Forty Six Hundred to suggest
that a criminal defendant waived his ability to appeal the district
court's order transferring his case to another court, by failing
to challenge the order below or in his opening appellate brief).
Here, we see no evidence that 3M clearly and unequivocally
relinquished its right to appeal. So, while it may have been
prudent for 3M to move to stay the remand, we see no license in
the federal officer removal statute or elsewhere to condition our
review on the filing of such a motion.
III.
Having determined that we have jurisdiction to consider
3M's appeal, we turn next to the merits of 3M's challenge to the
order remanding this case to state court. 3M attempted to remove
this case pursuant to the federal officer removal statute, which
enables removal of any "civil action . . . that is against . . .
any person acting under [a federal officer] . . . for or relating
to any act under color of such office." 28 U.S.C. § 1442(a). 3M
contends that in this case, "[t]he existence of federal officer
[removal] jurisdiction . . . turns on whether the lawsuit is 'for
or relating to' MilSpec AFFF." This is also known as the nexus
requirement.
3M claims that this "case relates to 3M's supply of
MilSpec AFFF to the federal government because the natural
- 9 - resources at issue were allegedly contaminated by PFAS from both
MilSpec AFFF and non-AFFF sources." Therefore, in 3M's view, "it
is clear that the alleged PFAS contamination of natural resources
in this 'state-wide contamination case' will encompass and overlap
with claims to recover for PFAS contamination caused at least in
part by MilSpec AFFF." Simply put, in the absence of any agreement
between the parties, the court in which this lawsuit is adjudicated
will have to decide for at least some of the statewide resources
at issue whether and to what extent MilSpec AFFF PFAS and non-AFFF
PFAS have commingled. Hence, reasons 3M, this case "relates to,"
28 U.S.C. § 1442(a)(1), the federal authority under which 3M
produced MilSpec AFFF. 3M also argues, in defense of the
timeliness of its removal, that no plaintiff's paper predating
March 30, 2022 (i.e., thirty days before 3M filed its removal
papers), made clear that a court would need to engage in this
factfinding and thus alerted it to the case's removability.
For purposes of this opinion, we assume without deciding
that 3M is correct that alleged commingling of MilSpec AFFF PFAS
and non-AFFF PFAS satisfies the nexus requirement. That assumption
then frames the question of timing, to which we now turn.
IV.
We review de novo the district court's conclusion that
3M untimely removed. See Amoche v. Guarantee Tr. Life Ins. Co.,
556 F.3d 41, 48 (1st Cir. 2009). In affirming the district court's
- 10 - conclusion, we may rely "on any basis supported by the record,"
including rationales predicated "on arguments not reached by the
district court or even presented to us on appeal." Young v. Wells
Fargo Bank, N.A., 717 F.3d 224, 237 n.11 (1st Cir. 2013) (quoting
Jordan v. DOJ, 668 F.3d 1188, 1200 (10th Cir. 2011)).
To secure a federal forum, a defendant must normally
remove a civil action within thirty days of receiving the
plaintiff's initial pleading in state court. See 28 U.S.C.
§ 1446(b)(1). But, sometimes, the initial pleading does not state
a removable case. When that happens, the thirty-day clock only
starts when the plaintiff provides the defendant with "a copy of
an amended pleading, motion, order[,] or other paper" from which
the defendant may "ascertain[]" removability. Id. § 1446(b)(3)
(emphasis added); see also Romulus v. CVS Pharmacy, Inc., 770 F.3d
67, 72, 74 n.5 (1st Cir. 2014) (noting that a subsequent paper,
pleading, or motion must come from the plaintiff to trigger the
thirty-day clock under § 1446(b)).
To trigger the thirty-day clock, a plaintiff's "other
paper" must "provide[] the defendant with sufficient information
to easily determine that the matter is removable." Romulus, 770
F.3d at 72. In assessing whether a paper provides the requisite
information, a defendant may not simply read that paper in
isolation. Rather, the defendant must ask whether that paper, "on
its face or in combination with earlier-filed pleadings, provides
- 11 - specific and unambiguous notice that the case satisfies federal
jurisdictional requirements." Id. at 74 (quoting Walker v. Trailer
Transit, Inc., 727 F.3d 819, 825 (7th Cir. 2013)). And defendants
must approach this inquiry with "a reasonable amount of
intelligence," though they need not "perform significant
investigation" to ascertain removability. Id. at 75, 80.
Here, the parties seem to agree that the complaint in
this suit did not, on its own, state a case that 3M could have
easily identified as removable. See id. at 76. In particular,
the complaint in this case did not contain any allegations making
it clear that some of the non-AFFF PFAS for which the state seeks
recovery may have commingled with MilSpec AFFF PFAS. The relevant
question, then, is whether any subsequent "other paper," viewed
alongside preceding documents from this case, enabled 3M to "easily
determine," id. at 72, that any of the contamination at issue, in
3M's words, "plausibly came from both MilSpec AFFF and non-AFFF
sources" more than thirty days before it filed for removal on
April 29, 2022.
The district court concluded that three different papers
independently triggered the thirty-day removal clock. First, the
district court pointed to the complaint in the AFFF Suit. See 3M,
665 F. Supp. 3d at 232. But 3M maintains that the AFFF complaint
could not have started the removal clock because it is a paper
from another case that was never introduced in this case. See
- 12 - 14C Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 3731 (4th ed. 2024) (collecting cases for the
proposition that "documents not generated within the state
litigation generally are not recognized as 'other papers,' that
can start a 30-day removal period under [§] 1446(b)").
The district court also suggested that 3M's own notice
of removal in the AFFF Suit could have triggered the removal clock.
See 3M, 665 F. Supp. 3d at 233–34. Again, 3M counters that its
AFFF notice of removal is not a paper provided by the state in
this lawsuit and that the notice lacks the requisite facts to make
removability obvious.
Finally, the district court concluded that New
Hampshire's December 2021 disclosures in this case could have
started the removal clock. See id. at 234. 3M does not question
that these disclosures constitute "other paper[s]" under § 1446(b)
but nevertheless argues that these disclosures did not clearly
indicate potential commingling between MilSpec AFFF PFAS and non-
AFFF PFAS.
We need not decide whether the district court was correct
to rely on these three documents in its timeliness analysis. This
is so because New Hampshire entered other papers into the record
of this case, more than thirty days before 3M removed, making clear
that 3M allegedly contaminated the natural resources at issue in
this case with both MilSpec AFFF PFAS and non-AFFF PFAS.
- 13 - On November 21, 2019, New Hampshire filed in state court
a memorandum in support of an omnibus objection to motions to
dismiss this case. In that memorandum, New Hampshire described
its complaint in this lawsuit as "one for statewide contamination."
And it explained that the "[s]tatewide contamination" for which it
seeks recovery in this lawsuit "is not geographically limited" but
is instead "pervasive across the natural resources of the State."
This filing thus made explicit what the complaint (which
underscored the "widespread contamination" of natural resources
"throughout New Hampshire") only strongly implied: that New
Hampshire seeks recovery in this case for statewide PFAS pollution
pervasive throughout its natural resources.
Of course, New Hampshire's allegation of statewide non-
AFFF PFAS did not by itself make clear that New Hampshire's non-
AFFF claims would, in 3M's words, "encompass and overlap with
claims to recover for PFAS contamination caused at least in part
by MilSpec [AFFF]." To allege such an overlap, 3M needed to
receive a paper that, when added to the other documents in this
case, demonstrated that MilSpec AFFF contributed to the
contamination of at least some of the statewide natural resources
at issue.
New Hampshire's November 2019 memorandum largely filled
that gap. In it, New Hampshire stated: "To the extent the State
expressly disclaims relief related to [AFFF], the State brought a
- 14 - separate lawsuit, naming the same three defendants in addition to
manufacturers of AFFF, exclusively related to contamination
resulting from AFFF, which is disclosed in the Complaint." New
Hampshire continued: "[Defendants] are well-aware of that
lawsuit, which was filed in this same court on the same day as the
instant lawsuit, which suit has since been removed to federal court
and transferred for pre-trial purposes to multi-district
litigation pending in the District of South Carolina." Thus, as
of November 21, 2019, New Hampshire had also informed 3M that 3M's
AFFF had contaminated New Hampshire's natural resources and that
that contamination was being litigated in an MDL in the District
of South Carolina.
Subsequently, on February 21, 2020, New Hampshire filed
as an exhibit in this case in state court a transcript of a
discovery-update hearing from the South Carolina MDL. In relevant
part, the transcript shows the parties and court discussing their
efforts to conduct discovery into the issue of what 3M told "the
Government and what . . . the Government kn[e]w independently"
about the dangers of MilSpec AFFF. The parties further explained
that "MilSpec" is short for "[m]ilitary specification" and that an
official at the Naval Sea Systems Command is "responsible for,
ultimately, approving all changes to the military specification."
In other words, the MDL transcript -- a paper provided by New
Hampshire in this case -- informed 3M that the company produced
- 15 - per federal government specification at least some of the AFFF
that New Hampshire alleges has contaminated its natural resources.
Together, these documents made clear long before
March 30, 2022, that New Hampshire was alleging both that (1) this
lawsuit seeks recovery from 3M for statewide non-AFFF PFAS
throughout New Hampshire's natural resources, and (2) MilSpec AFFF
PFAS attributable to 3M contaminated some of New Hampshire's
statewide natural resources. These facts would have alerted a
party exercising "a reasonable amount of intelligence," Romulus,
770 F.3d at 75, that a factfinder would need to decide whether and
to what extent "certain PFAS . . . came from [MilSpec AFFF]
or . . . non-AFFF products," Maryland v. 3M Co., Nos. 24-1218, 24-
1270, 2025 WL 727831, at *6 (4th Cir. Mar. 7, 2025).
3M nevertheless argues that, in June 2022, New Hampshire
stated, in opposing the consolidation of the Non-AFFF Suit in the
South Carolina MDL, that the AFFF Suit and Non-AFFF Suit do not
involve overlapping sites. But 3M never made this argument to the
district court. And 3M does not explain how a statement made well
after the case became clearly removable somehow retroactively
belied that removability. This argument is therefore waived. See
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
Separately, 3M contends that the removal clock did not
begin until New Hampshire identified a specific site allegedly
cross-contaminated with non-AFFF PFAS and MilSpec AFFF PFAS. But
- 16 - the alleged presence of any commingling requires a court to
determine whether and to what extent MilSpec AFFF produced by 3M
caused a portion of the contamination at issue. Thus, once New
Hampshire alleged facts indicating some commingling in the state,
this case became plainly removable under 3M's theory of
removability without any need to then identify a specific site
with cross-contamination.
* * *
New Hampshire filed the MDL status hearing transcript as
an exhibit in this case on February 21, 2020. When considered
with New Hampshire's allegations of statewide non-AFFF
contamination in its natural resources, the status hearing
transcript made clear that New Hampshire was plausibly alleging
that non-AFFF PFAS and MilSpec AFFF PFAS had commingled at some of
the sites for which it seeks recovery in this case. Thus, assuming
that the nexus requirement was satisfied once it became apparent
that a court would have to adjudicate the presence and extent of
MilSpec AFFF PFAS, we hold that 3M needed to file its removal
notice by March 23, 2020. It did not do so until April 29, 2022.
The notice was therefore untimely.
For the foregoing reasons, the judgment of the district
court is affirmed and the case should remain where the district
court sent it -- in state court.
- 17 -