The Town of Pine Hill, Alabama v. 3M Company

Opinion

USCA11 Case: 25-10746 Document: 65-1 Date Filed: 07/29/2026 Page: 1 of 24

FOR PUBLICATION

In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 25-10746 ____________________

THE TOWN OF PINE HILL, ALABAMA, Plaintiff-Appellee, versus

3M COMPANY, Defendant-Appellant, DAIKIN AMERICA, INC., et al., Defendants. ____________________ Appeal from the United States District Court for the Southern District of Alabama D.C. Docket No. 2:24-cv-00284-KD-N ____________________

Before NEWSOM, KIDD, and WILSON, Circuit Judges. WILSON, Circuit Judge: USCA11 Case: 25-10746 Document: 65-1 Date Filed: 07/29/2026 Page: 2 of 24

2 Opinion of the Court 25-10746

The Town of Pine Hill (Pine Hill) sued 3M Company (3M) for state-law claims related to contamination of the Alabama River from products containing per- and poly-fluoroalkyl substances (PFAS). 3M removed this case to federal court, asserting jurisdic- tion under the federal officer removal statute, 28 U.S.C. § 1442(a)(1). Pine Hill moved to remand to state court because it had disclaimed any relief from any contamination stemming from aqueous film forming foam (AFFF) products, which 3M produced for the United States military. The district court agreed that re- manding to state court was appropriate and explained that the heart of Pine Hill’s claims was 3M’s manufacturing and supplying of PFAS products to Alabama paper mills, which was not under- taken in color of federal office. After review, and with the benefit of oral argument, we find that the district court erred in its review of 3M’s removal allega- tions. The court should have credited 3M’s theory of the case, and if it had done so, it would have found that 3M sufficiently alleged facts supporting jurisdiction under the federal officer removal stat- ute. Thus, we vacate the district court’s decision and remand for further proceedings in the district court. I. 3M produces products containing PFAS that were sold to In- ternational Paper Company. At International Paper’s paper mills, workers discharged PFAS-containing wastewater into the Alabama River and its tributaries. Pine Hill obtains its raw water from the Alabama River, which it then treats to provide drinking water to USCA11 Case: 25-10746 Document: 65-1 Date Filed: 07/29/2026 Page: 3 of 24

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its residential and commercial customers. PFAS are difficult to re- move from the drinking water with Pine Hill’s current water filtra- tion system. To properly remove PFAS from the water and moni- tor PFAS levels, Pine Hill must install a new filtration system. Pine Hill sued 3M 1 in Alabama state court, alleging claims of negligence, wantonness, private nuisance, public nuisance, and trespass. Pine Hill expressly disclaimed any federal causes of action related to PFAS contamination from AFFF sources. After being served with Pine Hill’s complaint, 3M removed to the Southern District of Alabama, asserting jurisdiction under the federal officer removal statute, 2 28 U.S.C. § 1442(a)(1). In its notice of removal, 3M explained that products contain- ing PFAS were used in AFFF, which is a firefighting foam that the military developed. Because the military could not create enough AFFF to meet its own needs, it required help from chemical man- ufacturers like 3M to maintain a sufficient supply. The military de- veloped detailed specifications for chemical manufacturers like 3M to follow. 3M manufactured and sold AFFF to the military for over thirty years, including to Maxwell Air Force Base near Montgom- ery, Alabama.3

1 Pine Hill also sued other defendants who are not parties to this appeal.

2 3M also asserted diversity jurisdiction, which the district court found did not

exist. 3M does not appeal that determination. 3 Private individuals, states, and public water providers have sued 3M for prod-

uct liability claims related to the use of AFFF products at various government locations where the PFAS compounds were released into local groundwater, USCA11 Case: 25-10746 Document: 65-1 Date Filed: 07/29/2026 Page: 4 of 24

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3M alleged that AFFF was released from Maxwell Air Force Base, which was located “roughly the same distance from Pine Hill along the Alabama River” as the paper mills. Referencing a gov- ernment report in its notice of removal, 3M noted that the ground- water at Maxwell contained PFAS from AFFF release areas and flowed towards the Alabama River. The PFAS from the paper mill commingled with PFAS from AFFF sources and likely contributed to the alleged contamination of Pine Hill’s water. 3M also asserted that because of the inability to isolate the location of where the PFAS contamination came from—either an AFFF or non-AFFF source—3M could invoke the federal government contractor de- fense. Pine Hill moved to remand to state court, arguing that the AFFF disclaimer negated the causal connection requirement under the federal officer removal test. The court found that remanding the case to state court was appropriate and held that the heart of Pine Hill’s claims was 3M’s manufacturing and supplying of PFAS products to Alabama paper mills, and that conduct was not under- taken in color of federal office. 3M timely appealed. II. “We review de novo issues of removal jurisdiction.” State v. Meadows, 88 F.4th 1331, 1338 (11th Cir. 2023).

contaminating the drinking water. Several lawsuits have been centralized into a Multidistrict Litigation (MDL) in the District of South Carolina. USCA11 Case: 25-10746 Document: 65-1 Date Filed: 07/29/2026 Page: 5 of 24

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III. The federal officer removal statute allows removal of a civil action commenced in state court to federal district court for “[t]he United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office.” 28 U.S.C. § 1442(a)(1). Government contractors may use this defense, but they “must satisfy a three-pronged test to determine whether it may ef- fect removal.” Caver v. Cent. Ala. Elec. Coop., 845 F.3d 1135, 1142 (11th Cir. 2017). First, the contractor “must show that it is a person within the meaning of the statute who acted under a federal of- ficer.” Id. Second, the contractor “must show that it performed the actions for which it is being sued under color of federal office.” Id. Third, the contractor “must raise a colorable federal defense.” Id. 3M argues that the district court erred in holding the federal officer removal statute did not apply here because 3M has plausibly alleged in its notice of removal that it has met the three-pronged test. We will address each prong in turn. A. Under the first prong, the contractor must show that it is “any person acting under [a federal] officer.” 28 U.S.C. § 1442(a)(1). “The phrase ‘acting under’ is broad and thus we ‘liberally construe’ this portion of § 1442(a)(1).” Caver, 845 F.3d at 1142 (quoting Wat- son v. Philip Morris Co., 551 U.S. 142, 147 (2007)). When a private USCA11 Case: 25-10746 Document: 65-1 Date Filed: 07/29/2026 Page: 6 of 24

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person’s actions “involve an effort to assist, or to help carry out, the duties or tasks of the federal superior,” then that private person was “acting under” a federal officer. Watson, 551 U.S. at 152. “In other words, the private person must help federal officers fulfill a basic governmental task that the government otherwise would have had to perform.” Caver, 845 F.3d at 1143. 3M argues that it meets the first prong of the test required for removal because it acted under federal authority when it was manufacturing AFFF for the government according to the military specifications that used PFAS. Pine Hill responds that 3M is not currently acting under federal authority because 3M has phased out production of AFFF. Pine Hill relies on this court’s decision in Meadows to say that the federal officer removal statute does not ap- ply to former federal officers and past conduct. We agree with 3M that it was acting under a federal officer. Our decision in Meadows is not as narrow in the civil context as Pine Hill asserts. In Meadows, we held that former White House Chief of Staff Mark Meadows, who had been indicted in Georgia state court, could not remove his criminal case because “[t]he text of section 1442(a)(1) applies to only current officers.” 88 F.4th at 1338. “It is silent on the removal of a prosecution commenced against a former officer of the United States. The ordinary meaning of ‘officer’ does not include ‘former officer.’” Id. But we emphasized the type of case that we were review- ing—whether to remove a state criminal prosecution. See id. at 1342–43. We recognized that “[t] he Supreme Court has instructed USCA11 Case: 25-10746 Document: 65-1 Date Filed: 07/29/2026 Page: 7 of 24

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that federal courts must ‘retain[ ] the highest regard for a State’s right to make and enforce its own criminal laws.’” Id. (quoting Ar- izona v. Manypenny, 451 U.S. 232, 243 (1981)). “The jurisdiction to try state offenses should not ‘be wrested from [state] courts’ lightly.” Id. at 1343 (quoting Colorado v. Symes, 286 U.S. 510, 518 (1932)). Meadows focused on what “officer” meant under the stat- ute, but we did not comment on what sort of conduct could give rise to civil liability of individuals or corporations who formerly acted under federal officers. Notably, the Supreme Court has never delved into whether the federal officer removal statute would apply if a person or com- pany acting under a federal officer was sued civilly for past conduct. Instead, the Supreme Court essentially assumes that companies can invoke the federal officer removal statute when companies are be- ing sued for past conduct that they carried out while acting under a federal officer. See, e.g., Willingham v. Morgan, 395 U.S. 402, 409 (1969); Watson, 551 U.S. at 151–52. This assumption suggests that the Supreme Court allows the doctrine to apply to cases in which the conduct occurred well before the litigation commenced. And its continued silence suggests that those who were acting under federal officers, even for past conduct, may still rely on the federal officer removal statute. Recently, the Supreme Court vacated and remanded a deci- sion from the Fifth Circuit that narrowly interpreted the federal of- ficer removal statute. Chevron USA Inc. v. Plaquemines Par., 608 U.S. --, 146 S. Ct. 1052, 1063 (2026). In that case, several parishes USCA11 Case: 25-10746 Document: 65-1 Date Filed: 07/29/2026 Page: 8 of 24

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sued Chevron, the successor of the Texas Company, for violating a statute that required permits for drilling in the ocean off the coast. Id. at 1058–59. Relevant here, the drilling was done during World War II, so the parishes were suing for civil liability based on past conduct. Id. at 1059. Most of the Supreme Court’s opinion focuses on the second prong, but as with the other cases, the Supreme Court broadly permits the removal of cases in which the conduct occurred in the past. This supports a broad reading of the statute’s “acting under” language, in line with our own precedent. See, e.g., Caver, 845 F.3d at 1142. Considering how the Supreme Court has resolved similar federal government contractor cases, we find 3M has sufficiently alleged that it was a temporary contractor or agent that was “acting under” a federal officer because their purpose was “to assist, or to help carry out, the duties or tasks of the federal superior.” Watson, 551 U.S. at 152 (emphasis omitted). Thus, 3M met the first prong of the federal officer removal statute. B. Under the second prong, the contractor “must show a causal connection between what the officer has done under asserted offi- cial authority” and the claims in the suit filed against it. Caver, 845 F.3d at 1142 (internal quotation marks omitted). The court “must determine whether that act was taken under color of law,” which “requires only a []‘connection’ or ‘association’ between the act in question and the federal office.” Id. at 1144. “[A] removing defend- ant need not show that his federal duties specifically required or USCA11 Case: 25-10746 Document: 65-1 Date Filed: 07/29/2026 Page: 9 of 24

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strictly caused the challenged conduct.” Plaquemines, 146 S. Ct. at 1060. As a result, “the hurdle erected by this requirement is quite low.” Caver, 845 F.3d at 1144 (citation modified). We credit the government contractor’s theory of the case. Jefferson Cnty. v. Acker, 527 U.S. 423, 432 (1999). And we must de- termine what the “act” in question is by looking at the “gravamen” of the claims. Meadows, 88 F.4th at 1344; see also Plaquemines, 146 S. Ct. at 1061. 3M argues that the district court impermissibly narrowed the scope of Pine Hill’s charged conduct to 3M’s manufacturing of PFAS products and its supply of those products to International Pa- per for use in its Alabama paper mills. The court should have cred- ited 3M’s theory of the case that the resulting contamination re- lated back to the PFAS contamination as a whole and not only the sale of the PFAS products to paper mills. Pine Hill disagrees and asserts that the district court correctly focused on the supply of PFAS products to paper mills and not the AFFF production. We agree with 3M. When reviewing the complaint, the court does not look at the discrete acts alleged in the complaint but examines “the ‘act’ anchoring removal” and how it is defined by the “‘claim’ brought against the defendant.” Meadows, 88 F.4th at 1344. Here, Pine Hill’s state-law claims all focus on the effect of PFAS contamination to its water supply. While Pine Hill states that the act is the PFAS contamination from paper mills, its claims cen- ter on a much broader act—the overall PFAS contamination of the Alabama River. USCA11 Case: 25-10746 Document: 65-1 Date Filed: 07/29/2026 Page: 10 of 24

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Because the gravamen of Pine Hill’s complaint is much broader than it explicitly alleges, 3M correctly argues that it has plausibly alleged that there is a clear connection between the al- leged contamination and 3M’s federal conduct. To support this, 3M points to the allegation that 3M provided AFFF to Maxwell Air Force Base, which is near one of the paper mills that Pine Hill al- leges is a possible source of PFAS contamination. And since we are considering 3M’s allegations from its notice of removal, we credit 3M’s theory of the case and agree that 3M has properly alleged a connection. See Acker, 527 U.S. at 432. Pine Hill contests this conclusion by saying that 3M has not shown that it sold AFFF to Maxwell Air Force Base or that there is any evidence to show that the AFFF from Maxwell polluted the Alabama River.4 While 3M does not directly state that it provided AFFF to Maxwell, it does allege that it sold that product to the mil- itary for over thirty years, so it is a logical inference at this stage that 3M plausibly supplied the product to Maxwell. Further, the government inspection report that 3M includes in its notice of re- moval identifies that the groundwater at Maxwell contained PFAS from AFFF release areas and flowed towards the Alabama River. Considering 3M’s allegations in its notice of removal, the PFAS contamination could have occurred from 3M’s supply of AFFF which was produced for the government. Thus, 3M has plausibly

4 3M also states in its notice of removal that Pine Hill has filed a lawsuit in the

MDL for the PFAS contamination related to the AFFF from Maxwell Air Force Base and other military facilities. USCA11 Case: 25-10746 Document: 65-1 Date Filed: 07/29/2026 Page: 11 of 24

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alleged that there is a clear connection between the alleged con- tamination and 3M’s federal conduct. Again, resisting this conclusion, Pine Hill argues that its dis- claimers in its complaint unambiguously sever the causal connec- tion because 3M’s conduct for the military (production of AFFF) is distinct from what Pine Hill seeks to hold 3M accountable for (sup- plying consumer grade PFAS to the paper mills). Here are the rel- evant provisions from Pine Hill’s complaint: 40. Pine Hill does not allege contamination of drink- ing water sources occurred through Aqueous Film- Forming Foam. Contamination found in Pine Hill’s drinking water and drinking water source includes PFAS not found in Aqueous Film-Forming Foam.

73. Pine Hill is not seeking to recover through this Complaint any relief for contamination or injury re- lated to Aqueous Film Forming Foam that contains PFAS.

We have not addressed whether an express waiver of certain claims can sever the causal nexus requirement for this second prong. But the First Circuit has explained that the disclaimer doc- trine can be distinguished into two categories: “(1) express dis- claimers of the claims that serve as the grounds for removal; and (2) mere artful pleading for purposes of circumventing federal of- ficer jurisdiction.” Gov’t of Puerto Rico v. Express Scripts, Inc., 119 F.4th 174, 187 (1st Cir. 2024) (internal quotation marks omitted). USCA11 Case: 25-10746 Document: 65-1 Date Filed: 07/29/2026 Page: 12 of 24

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A valid disclaimer must fully eliminate any ground for federal of- ficer removal so that if the case is remanded a state court would not need to decide whether the defendant acted under federal au- thority. Id. This can include disclaimers that clearly exclude certain factual scenarios—such as limiting the relevant time or location— so that the alleged injuries could not have occurred under a federal officer’s direction. Id. By contrast, disclaimers that amount to artful pleading do not effectively preclude removal. Id. at 187–88. “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.” Id. at 188 (quoting Willingham, 395 U.S. at 409). An inef- fective disclaimer occurs when the plaintiff has disavowed claims based on the defendant’s actions that would fall under the color of office but still seeks to recover based on those official acts. Id. So “courts must determine whether, despite the disclaimer, the facts of the case make it likely that the plaintiff will hold a defendant liable for its official acts for which it possesses a colorable federal defense.” Id. We find the First Circuit’s reasoning to be persuasive. While we agree with the First Circuit that disclaimers can sever the con- nection requirement at the second prong, the disclaimer must be more than a strategy to avoid the federal officer removal statute. And here, we find that Pine Hill’s disclaimers amount to artful pleading because 3M plans to assert that one of the causes of the PFAS contamination is from AFFF that was released at Maxwell Air USCA11 Case: 25-10746 Document: 65-1 Date Filed: 07/29/2026 Page: 13 of 24

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Force Base. Allowing Pine Hill’s disclaimer to be dispositive on the question of causation would require an Alabama state court “to determine the nexus between the charged conduct and [3M’s] fed- eral authority” which the First Circuit persuasively explains “is not a valid means of precluding removal.” Id. at 188 (internal quotation marks omitted). Unsurprisingly, 3M has been litigating this issue in several jurisdictions because of its prominent role as an AFFF producer for the military for several decades. See, e.g., Illinois ex rel. Raoul v. 3M Co., 111 F.4th 846, 847 (7th Cir. 2024); New Hampshire v. 3M Co., 132 F.4th 556, 557 (1st Cir. 2025); Maine v. 3M Co., 159 F.4th 129, 130 (1st Cir. 2025); Maryland v. 3M Co., 130 F.4th 380, 385–86 (4th Cir. 2025). 5 We find that our decision is in good company with the

5 The two First Circuit cases were resolved on different grounds. First, when New Hampshire sued 3M, the First Circuit affirmed the district court’s grant of a motion to remand to state court because 3M’s removal was untimely. New Hampshire v. 3M Co., 132 F.4th 556, 561–63 (1st Cir. 2025). Then, when Maine sued 3M, the First Circuit reversed the district court’s grant of a motion to remand because it held that 3M had met the requirements of the federal officer removal statute. Maine v. 3M Co., 159 F.4th 129, 138–39 (1st Cir. 2025). The First Circuit focused on the third prong—that 3M had a colorable federal defense. Id. at 139. The Seventh Circuit affirmed the grant of a motion to remand to state court based on a concession at oral argument. Illinois ex rel. Raoul v. 3M Co., 111 F.4th 846, 849 (7th Cir. 2024). Illinois “clearly and unequivocally conceded at oral argument that it would not seek relief against 3M for mixed PFAS con- tamination,” and if any “morsel of contamination” came from the military USCA11 Case: 25-10746 Document: 65-1 Date Filed: 07/29/2026 Page: 14 of 24

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Fourth Circuit in that a disclaimer is not dispositive on whether the federal officer removal statute applies. See Maryland, 130 F.4th at 390. Thus, 3M met the second prong of the federal officer re- moval statute. C. For the third prong, the contractor must raise a colorable federal defense. Caver, 845 F.3d at 1142. Like the second prong, this is not a high bar. Id. at 1145. “The colorable federal defense need only be plausible; its ultimate validity is not to be determined at the time of removal.” Id. (internal quotation marks omitted). 3M asserts that it would invoke the federal government con- tractor defense that limits the state tort liability of government con- tractors. Government contractors are not subject to state tort lia- bility when “(1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifica- tions; and (3) the supplier warned the United States about the dan- gers in the use of the equipment that were known to the supplier but not to the United States.” Boyle v. United Techs. Corp., 487 U.S. 500, 512 (1988).

base, then Illinois would be barred from recovery. Id. This is akin to an ex- press disclaimer that protects the state court from deciding whether the de- fendant acted under federal authority. USCA11 Case: 25-10746 Document: 65-1 Date Filed: 07/29/2026 Page: 15 of 24

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We agree that 3M’s notice of removal plausibly alleges the three requirements. 6 First, 3M plausibly alleges that the “Naval Sea Systems Command participated in the design of AFFF” where it “created (and has updated) detailed specifications governing the product’s formulation, performance, testing, storage, inspection, packaging, and labeling,” and that such specifications were “rea- sonably precise.” Second, 3M plausibly alleges that 3M’s products “appeared on the D[epartment of Defense] Qualified Products List, which could have happened only if Naval Sea Systems Command had first determined that [it] conformed to the” required specifica- tions of the military. Third, 3M plausibly alleges it did not know of any dangers that the government wasn’t already aware of because the government knew that “AFFF contains PFAS and may contain or break down into PFOS and/or PFOA; that AFFF constituents can migrate through the soil and potentially reach groundwater; and that it has been reported that this may raise environmental or human health issues.” Because it is plausible that the PFAS con- tamination at issue could have come from Maxwell Air Force Base,

6 Pine Hill asks us to look outside the record to the MDL court’s determination

that 3M did not use the approved precise specification for the AFFF. As 3M notes, Pine Hill only facially challenged 3M’s notice of removal, so we only look at the complaint and the notice of removal. Further, the MDL court ex- plained that factual disputes existed at the summary judgment stage so 3M could not establish the defense at that time. In Re Aqueous Film-Forming Foams Prods. Liab. Litig., No. 2:24-CV-03794, 2026 WL 883873, at *3 (D.S.C. Mar. 31, 2026). “The Court did not rule, however, that 3M could never establish the defense.” Id. USCA11 Case: 25-10746 Document: 65-1 Date Filed: 07/29/2026 Page: 16 of 24

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it is plausible that 3M could be shielded from liability if it is found that the PFAS contamination was from AFFF sources. Pine Hill pushes back by arguing that the issue here involves the contamination of the Alabama River by PFAS products sup- plied to the paper mills. But because it is plausible that AFFF from the Maxwell Air Force Base at least partially contaminated the Ala- bama River—the source where Pine Hill draws its water supply— Pine Hill cannot escape the implication of the federal defense. Thus, 3M has met the third prong of the federal officer re- moval statute. IV. The district court erred in finding that 3M’s removal wasn’t proper under the federal officer removal statute. Thus, the district court’s order remanding the case to state court is VACATED and we REMAND for further proceedings in the district court. USCA11 Case: 25-10746 Document: 65-1 Date Filed: 07/29/2026 Page: 17 of 24

25-10746 NEWSOM, J., Concurring 1

NEWSOM, Circuit Judge, concurring in the judgment: I concur in the judgment vacating the district court’s deci- sion and remanding for further proceedings. I write separately be- cause in two respects the path I would take to vacatur is different (if only slightly) from the majority’s. The majority correctly explains that a private party asserting jurisdiction under the federal-officer removal statute “must satisfy a three-pronged test.” Maj. Op. at 5 (quoting Caver v. Cent. Ala. Elec. Coop., 845 F.3d 1135, 1142 (11th Cir. 2017)). I’ll call those three the “acting under” prong, the “relates to” prong, and the “colorable federal defense” prong. See id. I’d apply the first two a bit differ- ently than the majority seems to. I Under the first prong, the private party must demonstrate that it is “acting under [a federal] officer.” 28 U.S.C. § 1442(a)(1). We’ve said that in order to meet this standard, the private party must make two showings. First, it must show that it was engaged in an effort “to assist, or to help carry out, the duties or tasks of the federal superior.” Caver, 845 F.3d at 1143 (quoting Watson v. Philip Morris Cos., Inc., 551 U.S. 142, 152 (2007)) (emphasis omitted). Sec- ond, “the relationship between the private person and the federal officer must be one of ‘subjection, guidance, or control.’” Id. (quoting Watson, 551 U.S. at 151). At the outset, Pine Hill contends that because 3M stopped selling AFFF to the military in 2000, the company is no longer “act- ing”—present tense—under the authority of a federal officer. And USCA11 Case: 25-10746 Document: 65-1 Date Filed: 07/29/2026 Page: 18 of 24

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that matters, Pine Hill says, because in Georgia v. Meadows we held that the federal-officer removal statute “does not apply to former federal officers.” 88 F.4th 1331, 1338 (11th Cir. 2023). For its part, the majority distinguishes Meadows on the ground that our decision there applied only to the attempted removal of a state criminal prosecution, and “did not comment on what sort of conduct could give rise to civil liability of individuals or corporations who for- merly acted under federal officers.” Maj. Op. at 7 (emphasis added). I’m not sure that the majority’s distinction of Meadows is wrong, but I don’t think it’s necessary. The fact is that 3M is very much still acting—in the present tense—under the authority of a federal officer. Official government reports reflect that as of the time of this writing, 3M has been awarded more than 2000 federal contracts worth tens of millions of dollars since the start of fiscal year 2026 alone. See USASpending, 3M Profile, https://perma.cc/5SM8-H7X8. Hundreds of those contracts are for the manufacture of goods. See id. And at least some of those goods are required to be produced pursuant to bespoke specifica- tions similar to those that governed the AFFF that 3M once made for the military. See, e.g., id; 3M, https://perma.cc/K3NR-PPYU. So 3M qualifies for acting-under status—provided, that is, it satisfies our doctrinal criteria. It does. First, it seems clear beyond peradventure that in manufacturing bespoke goods for the government, 3M is assisting a federal superior in carrying out its tasks and duties—i.e., “help[ing] federal officers fulfill a basic governmental task that the USCA11 Case: 25-10746 Document: 65-1 Date Filed: 07/29/2026 Page: 19 of 24

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government otherwise would have had to perform.” Caver, 845 F.3d at 1143–44 (analogizing its facts to those in a case where “a corporation that supplied the Navy with turbines satisfied the ‘act- ing under’ requirement” (citing Ruppel v. CBS Corp., 701 F.3d 1176, 1179, 1181 (7th Cir. 2012))); see also Sawyer v. Foster Wheeler LLC, 860 F.3d 249, 255 (4th Cir. 2017) (“[C]ourts have unhesitatingly treated the ‘acting under’ requirement as satisfied where a contractor seeks to remove a case involving injuries arising from equipment that it manufactured for the government.” (emphasis removed)). To be clear—and circling back briefly to the timing issue— it’s of no moment that the production activities that qualify 3M for acting-under status might be different from those with respect to which it’s being sued. Section 1442(a)(1) requires only that the case be “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)(1) (emphasis added). And the statute’s broad sweep makes sense. Requiring that the acts targeted in the suit be identi- cal to those in which the removing party is currently engaged would preclude federal-officer removal for all current federal con- tractors sued for acts related to past assignments. Again, 3M still manufactures tailor-made products for the government. That’s enough to show that the company is “assist[ing] or help[ing] carry out[] the duties or tasks of the federal superior.” Caver, 845 F.3d at 1143 (quoting Watson, 551 U.S. at 152). Second, 3M’s relationship with the government qualifies as one of “subjection, guidance, or control.” Id. (quoting Watson, 551 USCA11 Case: 25-10746 Document: 65-1 Date Filed: 07/29/2026 Page: 20 of 24

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U.S. at 151). By requiring 3M to manufacture products to its own specifications, the federal government is enlisting the company to “help[] [it] to produce an item that it needs.” Watson, 551 U.S. at 153. We needn’t grapple with the tougher question whether selling the government off-the-rack goods would satisfy the subjection- guidance-or-control criterion. It’s enough that where, as here, a company manufactures products tailor-made to the government’s precise specs, it crosses a line from merely complying with regula- tory requirements to genuinely performing work “on behalf of the government.” Caver, 845 F.3d at 1144. II Next up, the relates-to prong. As a baseline, I agree with the majority that to satisfy this second requirement a removing defend- ant must show some form of “‘causal connection between what the officer has done under asserted official authority’ and the claims in the suit filed against it.” Maj. Op. at 8 (quoting Caver, 845 F.3d at 1142). Importantly, though—and the majority recognizes as much—the Supreme Court recently embraced a very generous cau- sation standard that “sweeps broadly”: The removing defendant need show only “some relation” to the alleged harm that is not “tenuous, remote, or peripheral.” Chevron USA Inc. v. Plaquemines Parish, 146 S. Ct. 1052, 1060–61 (2026). My particular reasons for concluding that 3M has met the Plaquemines-construed relates-to requirement are a little bit differ- ent from the majority’s. USCA11 Case: 25-10746 Document: 65-1 Date Filed: 07/29/2026 Page: 21 of 24

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A As a preliminary matter, I think it’s important to clarify the burden the defendant faces at the removal stage. Here, Pine Hill insists that because there’s no smoking-gun evidence “that any mil- itary-grade AFFF manufactured by 3M was supplied to or used at Maxwell [Air Base]” and subsequently made its way into the Ala- bama River, 3M has failed to prove by a “preponderance” the facts necessary to meet the relates-to requirement. Br. of Appellee at 9, 13, 20–22. To be sure, a defendant bears some burden to show its enti- tlement to invoke the federal-officer removal statute, but I think that Pine Hill’s “preponderance” standard sets too high a bar. I say so for two reasons. First, the Supreme Court has clarified that “de- manding an airtight case on the merits in order to show the re- quired causal connection” would “defeat the purpose of the re- moval statute.” Jefferson Cnty. v. Acker, 527 U.S. 423, 432 (1999), su- perseded by statute on other grounds by Removal Clarification Act of 2011, Pub. L. No. 112-51, 125 Stat. 545. Requiring 3M (at the plead- ings stage) to prove by a preponderance of the evidence that its fed- eral activities—opposed to, for example, its sales to private paper mills—caused the river’s pollution would likewise encroach into the “merits” and thereby usurp the jury’s factfinding role. Second, and relatedly, Pine Hill’s merits-sounding standard contradicts the general statutory prescription that “[a] defendant . . . desiring to re- move any civil action” file a “notice of removal” that “contain[s] a short and plain statement of the grounds for removal.” 28 U.S.C. § 1446(a) (emphasis added); cf. Dart Cherokee Basin Operating Co., USCA11 Case: 25-10746 Document: 65-1 Date Filed: 07/29/2026 Page: 22 of 24

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LLC v. Owens, 574 U.S. 81, 84 (2014) (holding that a removing party need not submit evidence to support its amount-in-controversy al- legation). At the pleadings stage, it seems to me, 3M need only make a plausible showing that at least some of the alleged pollution of the Alabama River is attributable to its Maxwell-related AFFF sales. And it has done so. In support of its notice of removal, 3M cited (1) government documents that list 3M’s products on the Navy’s Qualified Products list, (2) a report “identifying PFAS in groundwa- ter resulting from multiple AFFF release areas on the Maxwell base,” (3) a note in the same report observing that groundwater “flowed in the direction of the Alabama River,” and (4) a scientific study that indicates PFAS levels in the Alabama River increase as one gets closer to Maxwell. Given those data, it’s at the very least plausible that the AFFF released from Maxwell came from 3M and that the groundwater that flowed in the direction of the river actu- ally reached it. That’s enough. B As for the “merits” of the relates-to prong, I don’t think it’s necessary to conclude, as the majority does, that Pine Hill’s at- tempt to disclaim any damages relating to 3M’s sale of AFFF to the federal government “amount[s] to artful pleading.” Maj. Op. at 12. I think there’s a path of less resistance. The parties vigorously debate the “gravamen” of Pine Hill’s complaint. Compare Br. of Appellant at 32–34, with Br. of Appellee at 23–26. The town asserts that it’s suing 3M solely for its conduct USCA11 Case: 25-10746 Document: 65-1 Date Filed: 07/29/2026 Page: 23 of 24

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in providing PFAS to paper mills, and as proof it cites its disclaimer of any damages related to 3M’s sale of military-grade AFFF to Max- well. See Br. of Appellee at 29–30. Pine Hill’s point, of course, is that because its suit is properly understood to focus exclusively on 3M’s private-sector manufacturing, it doesn’t “relate[] to” its gov- ernment work in the relevant sense. 3M, by contrast, insists that no matter what sort of relief Pine Hill purports to swear off, a fair reading of the town’s complaint betrays a broader and more gen- eral focus on 3M’s pollution of the Alabama River. See Br. of Ap- pellant at 32–34. And the connection between that injury and 3M’s manufacturing activities for Maxwell Air Base, the company says, is anything but “tenuous, remote, or peripheral.” Plaquemines Par- ish, 146 S. Ct. at 1061. As I see it, no matter how Pine Hill’s complaint is conceptu- alized, the town’s suit meets the statutory standard. Even, that is, if we accept Pine Hill’s framing—that the gravamen of its com- plaint is solely about the damages resulting from 3M’s paper-mill sales—the suit is still inescapably “relate[d] to” 3M’s AFFF sales to the government. The reason is that product liability doesn’t exist in the air. Rather, to prevail on (for instance) its negligence claim under Alabama law, the town will have to prove, among other ele- ments, that 3M’s conduct proximately caused an injury. See Hilyer v. Fortier, 227 So. 3d 13, 22 (Ala. 2017). And to do so, it will neces- sarily have to prove what portion of its alleged loss is attributable to which of 3M’s activities. The need to allocate causation and harm among those activities means that liability for the one neces- sarily implicates liability for the other. USCA11 Case: 25-10746 Document: 65-1 Date Filed: 07/29/2026 Page: 24 of 24

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Perhaps a simplified example will make it more concrete: Imagine that 75% of the actual share of pollution is attributable to private-sector paper-mill sales, and 25% to federal-sector AFFF sales—with respect to which 3M claims a federal defense. Imagine further that the pollution causes $10 million of damage. Theoret- ically, because it has a defense to $2.5 million of that liability, 3M should have to pay only $7.5 million. But if a state-court jury at- tributes 100% of the pollution to 3M’s private-sector activities, and none to its government activities, then the company will be on the hook for the full $10 million. In that scenario, 3M would be de- prived of its right to litigate its federal defense in federal court, which is the whole point of the federal-office removal statute. * * * For these reasons, I quite agree with the majority’s bottom line: The district court erred in rejecting 3M’s effort to invoke the federal-office removal statute. It’s just that I reason my way to that conclusion a little bit differently.