The allegations of a plaintiff’s complaint do not control when evaluating removal under the federal officer removal statute, 28 U.S.C. § 1442(a)(1), and instead the court must credit the defendant’s theory of the case when determining whether the conduct complained of relates to the contractor’s federal work.
In two consolidated appeals, State of Maryland v. 3M Company, et al., No. 24-1218, and State of South Carolina v. 3M Company, et al., No. 24-1270, the Fourth Circuit held that, although the State of Maryland and the State of South Carolina purported to limit their remediation claims to PFAS from non-aqueous film-forming foam (“AFFF”) sources, the defendant’s allegations in the notice of removal could establish a nexus between its federal activity (producing AFFF for the military) and the claims. The defendant asserted that PFAS from different sources, including military AFFF and non-AFFF products, commingle, making it impossible to identify the precise source of PFAS in state waterways, despite the states’ attempts to frame its allegations to exclude AFFF produced for the military. The states’ claims related to PFAS in state waterways thus necessarily implicated the defendant’s federal conduct. On that basis, the Fourth Circuit reversed the district court’s decision finding that federal jurisdiction was lacking, and remanded for further proceedings.
Background
The State of Maryland and the State of South Carolina both sued 3M and others for their manufacture and sale of products containing per- and polyfluoroalkyl substances (“PFAS”). These substances are alleged to have contaminated the States’ waterways.
PFAS is found in a wide range of products, including AFFF, which is used to fight fuel fires. The United States military purchased AFFF to use on military bases, airfields, and naval vessels, and defendant’s manufacture and sale of AFFF to the military was governed by rigorous specifications administered by the Department of Defense (“MilSpec AFFF”). While Maryland and South Carolina brought separate lawsuits directed towards defendant’s PFAS production through its sale of AFFF, the lawsuits at issue were directed toward defendant’s production of other PFAS-containing products and disclaimed any claims related to AFFF-remediation.
Basis for Removal
The defendant removed both States’ complaints under the federal officer removal statute, 28 U.S.C. § 1442(a)(1), based on the government contractor defense. The notice of removal alleged that the PFAS from defendant’s non-AFFF products indistinguishably commingled with the PFAS from its MilSpec AFFF, and thus the States’ claims related to its federal activity. The lower court held that the defendant would not have a federal defense because the States had disclaimed relief for contamination related to AFFF or AFFF products, the only products manufactured under military specifications, and on that basis remanded the cases to state court.
The Federal Officer Removal Statute
Removal under § 1442(a)(1) is appropriate if the defendant 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. To satisfy the third element under the federal officer removal statute, often referred to as the nexus 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.” The purpose of the federal officer removal statute 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.”
Defendant’s Allegations Were Sufficient to Establish a Nexus to Its Federal Work
Given the purpose and broad interpretation of the federal officer removal statute, a court should credit the defendant’s theory of the case when determining whether the conduct complained of relates to the contractor’s federal work. A defendant’s well-pled facts in its notice of removal must be analyzed to see if it is entitled to a federal forum despite the “nonfederal cast of the complaint.” Here, under the defendant’s theory of the case, it plausibly alleged that the charged conduct (manufacture of PFAS-containing products) was related to its federal work because PFAS from different sources commingles to the point that it is impossible to identify the precise source of the PFAS once those chemicals seep into the relevant waterways. Although the States attempted to disclaim liability for PFAS contamination caused by AFFF, the record plausibly demonstrated that some of the PFAS contamination occurred near military bases where the defendant allegedly sold MilSpec AFFF. Thus, defendant’s allegations that some of the PFAS contamination at issue may originate from its MilSpec AFFF production is plausible. Whether certain PFAS contamination came from defendant’s MilSpec AFFF or from its non-AFFF products, and how much of that contamination came from MilSpec AFFF as compared to non-AFFF products, are questions of fact. As the Fourth Circuit noted, the “need to unravel such challenging questions in this case establishes that defendant’s federal work is inextricably related to the charged conduct.” Because the defendant plausibly alleged that the PFAS intermingled to the point that it is impossible to identify its source, the court should “plausibly infer” that its MilSpec AFFF contributed to at least a portion of its “relevant conduct,” satisfying the nexus requirement for federal officer removal.
The Fourth Circuit vacated the district court’s decisions finding no basis for removal in both cases and remanded for further consideration as to whether defendant satisfied the other elements needed to avail itself of a federal forum under § 1442(a)(1), including that it (1) acted under a federal officer and (2) has a colorable federal defense.
