130 F.4th 380
4th Cir.2025Background
- Maryland and South Carolina separately sued 3M and other manufacturers in state court over alleged contamination of state waterways by PFAS chemicals, found in both firefighting foam (AFFF) and consumer products.
- Each state bifurcated its claims: one set addressed AFFF (used by the military), while the other targeted non-AFFF consumer and industrial PFAS products, expressly disclaiming damages related to AFFF in the non-AFFF complaints.
- 3M removed the non-AFFF suits to federal court under the federal officer removal statute (28 U.S.C. § 1442(a)(1)), arguing the PFAS contamination was inherently inseparable and partly attributable to its federally contracted AFFF production.
- District courts remanded the cases to state court, viewing the states’ disclaimers as dispositive, thereby precluding the required connection to federal conduct for removal.
- 3M appealed, and the Fourth Circuit consolidated the appeals, reviewing de novo whether removal under the federal officer statute was proper in light of the states’ disclaimers and 3M’s federal government contractor defense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 3M can remove non-AFFF PFAS cases to federal court under § 1442(a)(1) | State disclaimers exclude AFFF, so no connection to federal officer acts | PFAS from AFFF and non-AFFF sources are commingled, making federal connection inescapable | States' disclaimers not dispositive; factual overlap suffices for nexus; remand vacated |
| Whether artful state pleading (disclaimer) can prevent federal officer removal | Plaintiff is master of its complaint; no federal conduct at issue due to disclaimer | Federal officer statute overrides traditional pleading rules; defendant’s theory controls | Artful pleading does not block removal; must consider defendant’s well-pled theory |
| Whether the connection (nexus) to federal authority must be airtight for removal | No nexus because AFFF-excluded; only non-federal PFAS is charged | Nexus met if any charged conduct is plausibly linked to federal work | Not an airtight merits case is required; plausible link suffices for removal |
| Whether the appellate court should rule on remaining removal prongs or remand | District courts found disclaimer negated all prongs, including colorable federal defense | 3M argued for immediate appellate determination | Court remands for district court to decide remaining elements first |
Key Cases Cited
- BP P.L.C. v. Mayor & City Council of Baltimore, 593 U.S. 230 (2021) (federal officer removal statute provides broad federal forum access for those acting under federal authority)
- Willingham v. Morgan, 395 U.S. 402 (1969) (federal officer statute to be liberally construed to allow federal defenses to be heard in federal court)
- Jefferson County v. Acker, 527 U.S. 423 (1999) (removal under § 1442 applies despite nonfederal character of complaint)
- Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., 535 U.S. 826 (2002) (generally, plaintiff is master of the complaint—except under federal officer statute)
- Wood v. Crane Co., 764 F.3d 316 (4th Cir. 2014) (disclaimer effective in a different timing and theory context)