Czerno v. General Electric CompanyCzerno v. General Electric Company
Thomas E. Bosworth, with whom Bosworth DeAngelo, LLC, John B. Stewart, and John B. Stewart, P.C., were on brief, for appellee.
I.
According to Czerno‘s complaint, her minor son, C.L., developed leukemia after attending school near and residing close to GE‘s Pittsfield, Massachusetts plant. For decades, GE manufactured and serviced electrical transformers and capacitors containing PCBs, and produced a dielectric fluid containing PCBs used to insulate electrical devices, at the Pittsfield plant; GE also disposed of PCBs used in the manufacturing process at locations in the surrounding communities -- including at a
PCBs are synthetic compounds characterized by chemical stability at high temperatures, high dielectric constants,2 superior cooling qualities, and non-flammability, which made them an attractive choice for electrical insulation -- and particularly well-suited for military contexts, where the fire and explosion hazards associated with oil-insulated devices are especially acute. Electrical devices impregnated with PCBs were also markedly more reliable and long-lived than comparable oil capacitors of the mid-to-late 20th century. They were also one-sixth of the size, one-fifth of the weight, and a quarter of the cost.
That is why, from the early 1930s through the late 1970s, GE manufactured transformers and capacitors containing PCBs. Generally, GE purchased PCBs from the Monsanto Company, blended them into a proprietary mix branded “Pyranol,” and infused Pyranol into capacitors, transistors, and other electrical equipment. The superior chemical and technical properties of these devices also explain why, in the months leading up to World War II, the federal government began ordering Pyranol devices from GE for use in
Throughout this time, and for decades afterwards, GE allegedly dumped PCBs in the Hill 78 Consolidation area, a six-acre landfill near the Pittsfield plant and adjacent to Allendale Elementary School. In 1950, GE provided the City of Pittsfield with soil from Hill 78 to layer the Allendale Elementary School grounds where, a little over half a century later, Czerno‘s son attended elementary school.
By the early 1970s, the public became increasingly aware of the possible health and environmental consequences of PCBs, and the government began scrutinizing the use of PCBs. In 1972, Monsanto discontinued sales of PCBs except to those buyers, like GE, with whom it had special indemnity agreements. By the end of that decade, federal legislation and Environmental Protection Agency (EPA) regulations largely prohibited new manufacturing and use of PCBs. See
In 1980, Congress took the additional step of authorizing the EPA to either compel private parties to remediate
Notwithstanding these remedial efforts, on August 15, 2023, Czerno sued GE3 in state superior court in the Commonwealth of Massachusetts on behalf of herself and C.L., alleging that GE‘s use and disposal of PCBs led to C.L.‘s leukemia. Among other claims, she asserts strict liability claims for GE‘s “defectively designed Pyranol,” as well as its “use, disposal, storing, keeping, and/or maintaining of PCBs” (Counts III, XIII); a negligence claim relating to GE‘s use, dumping, disposal, and remediation of PCBs (Count VI); a fraudulent misrepresentation claim relating to the dangers of PCBs (Count VII); private and public nuisance claims relating to GE‘s “use, misuse, dumping, failure to remove, failure
GE timely removed the case to federal court, see
We have jurisdiction to hear this appeal pursuant to
II.
Congress gave certain parties the “absolute” right to remove a state court suit filed against them to federal court, “regardless of whether the suit could originally have been brought” there. Willingham v. Morgan, 395 U.S. 402, 406 (1969). The right extends to:
The 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 or on account of any right, title or authority claimed under any Act of Congress for the apprehension or
When a private entity, like a government contractor, seeks removal under this provision, it must show that (1) it was “acting under” a federal officer‘s authority, (2) the charged conduct was “for or relating to” that authority, and (3) it can assert a “colorable federal defense” to the suit. Chevron USA Inc. v. Plaquemines Parish, La., 146 S. Ct. 1052, 1057–58 (2026) (first quoting
Here, GE offers two theories to support removal under
We review ”de novo the district court‘s jurisdictional determination on removal,” and “[w]here the district court resolve[d] disputed issues of fact, we review those factual findings for clear error.” Moore v. Elec. Boat Corp., 25 F.4th 30, 34 (1st Cir. 2022). Because we find that GE satisfied both the first and second elements of removal under its first theory, we need not and do not address GE‘s second theory.
A. The Federal Officer Removal Framework
GE, as the party seeking to remove to federal court, must first show that it “act[ed] under” a federal officer.
The Supreme Court has recently reiterated that these two elements are distinct and require different analyses. In Plaquemines Parish, the Supreme Court rejected an attempt to intermingle these two elements of the federal officer removal statute as being “not consistent with the statutory text.” 146 S. Ct. at 1063. The respondent in Plaquemines Parish argued, much as Czerno does here, that “the removal statute requires that the defendant was ‘acting under’ a federal officer in taking the specific actions challenged in the suit.” Id. at 1062. But that analysis is wrong, as it would “impermissibly conflate[] the distinct . . . elements of the” test “in a way that makes part of it redundant.” Id. at 1063 (citation modified).
With this framework in mind, we turn to GE‘s first theory of removal.
The district court concluded that GE‘s role as a government contractor was insufficient to establish grounds to remove Czerno‘s complaint under
1. “Acting Under”
“‘The words “acting under” are broad,’ and, like the rest of [
“[C]ourts have unhesitatingly treated the ‘acting under’ requirement as satisfied” in the government contractor context, Sawyer v. Foster Wheeler LLC, 860 F.3d 249, 255 (4th Cir. 2017), and military contractors are the “archetypal case” of entities “acting under” the United States, Williams v. Lockheed Martin Corp., 990 F.3d 852, 859 (5th Cir. 2021) (quoting Papp v. Fore-Kast Sales Co., 842 F.3d 805, 813 (3d Cir. 2016)); see Moore, 25 F.4th at 34 n.3 (collecting cases); see, e.g., Genereux v. Am. Beryllia Corp., 577 F.3d 350, 357 n.9 (1st Cir. 2009) (recognizing federal officer removal based on defendant‘s “assertion that it was a ‘person acting under‘” a federal officer “because the beryllium-containing products it supplied to Raytheon were used in manufacturing ‘military hardware‘“); Isaacson v. Dow Chem. Co., 517 F.3d 129, 137 (2d Cir. 2008) (holding that the “acting under” element was satisfied where the defendants contracted with the government “to provide a product that the [g]overnment was using during war -- a product that, in the absence of Defendants, the [g]overnment would have had to produce itself“).
In this case, GE acted under a federal officer by providing the government with “an item that it need[ed]” and “perform[ing] a job . . . the [g]overnment itself would have had to perform,” Watson, 551 U.S. at 153-54; see Doe v. BJC Health Sys., 89 F.4th 1037, 1045 (8th Cir. 2023), by providing the military with components for military hardware. Specifically, GE acted under federal officers when it produced PCB-infused electrical devices, like transformers and capacitors, for the military.
Throughout the 1940s, the government placed substantial “priority orders” for electrical system components containing PCBs for use in defense work, requiring GE to meet government timelines
Among other products, the government ordered from GE “pyranol type” transformers and small capacitors for use in “gun, tank and equipment controls,” and “aircraft service, motors, generators, and radio interference suppression,” as well as “anti-aircraft shell and torpedo detonators” for the “Army and Navy.” Similarly, the government ordered Pyranol-infused “Large Power Factor Capacitors” from GE for large radar equipment. The government required capacitors “rang[ing] in size from a few ounces to 100 pounds or more,” for various “applications” that were
The military‘s voracious appetite for GE‘s Pyranol products during World War II fostered and cemented a close relationship between the government and GE that persisted for decades after the war. Communications between GE and Monsanto from 1941 indicate that “it [was] almost impossible” for GE to keep a list of orders from the government “up to date” because the volume of the government‘s orders was so substantial. One naval station alone, for example, placed new priority orders with GE for Pyranol transformers “almost daily.” The government‘s reliance on GE was so acute that it even approved a Necessity Certificate for Monsanto, in part because Monsanto‘s delay in providing chemicals to GE was slowing down GE‘s ability to furnish the government with Pyranol-insulated equipment.4 Directed by the government to meet
its military needs, GE was enmeshed in “do[ing] the business of the federal government and not merely its own.” BJC Health Sys., 89 F.4th at 1043.
After the war, GE‘s continued provision of PCBs remained essential to the government‘s carrying out of its duties and tasks. In a 1974 letter to GE, a Navy official noted that “[t]he Navy Department, and other agencies of the Department of Defense as well, have a substantial number of transformers and electrical devices in which the use of askarel rather than ordinary transformer oil is essential.”5 The Navy acknowledged that “[m]any of” the transformers and electrical devices that the Navy, as well as other agencies of the Department of Defense, had purchased were “products of the General Electric Company,” containing Pyranol, and the Navy “of course . . . look[ed] to General Electric for the supplies necessary to keep them operational” because it was “essential” that PCBs “be procured for use by [g]overnment personnel in servicing [electrical] devices.”
By developing and selling essential Pyranol fluids and Pyranol-infused devices to the government, both during and after the war, GE “provid[ed] the [g]overnment with a product that it used” to “fulfill . . . basic governmental tasks,” and was engaged in an “effort to assist” the Navy with maintaining its technological infrastructure. Watson, 551 U.S. at 152-54. The nature and specificity of the defense orders, the specialized nature of the items provided to the government, and GE‘s relationship with the government -- including the dedication of GE‘s facilities to the fulfillment of government contracts -- lead us to conclude that GE is squarely in line with other government contractors who have successfully sought removal by virtue of their “product[s] manufactured for the government” at the direction of the government. Moore, 25 F.4th at 34 n.3; see Genereux, 577 F.3d at 357 n.9; Sawyer, 860 F.3d at 255 (holding that a federal contractor that assembled boilers for Naval vessels was “acting under” a federal officer‘s authority). We think it more than “at least arguabl[e]” that “in the absence of a contract with a private firm, the [g]overnment itself would have” been responsible for producing and servicing these components for weapons. Watson, 551 U.S. at 154; Express Scripts, 119 F.4th at 185-86. That is enough to conclude GE acted under a federal officer.
The district court‘s contrary conclusion, and Czerno‘s insistence that the “acting under” requirement is not satisfied because GE‘s government contracts did not mandate GE‘s improper disposal of PCBs, reflect an overreading of the “acting under” requirement. The district court reasoned that the federal government must exercise “tight control” over the work of the private contractor for that contractor to “act under” federal officers, citing an unpublished district court opinion, Progin v. UMass Mem‘l Health Care, Inc., 2023 WL 4535129, at *4 (D. Mass. July 13, 2023). But the Supreme Court has not adopted such a standard, nor have we. Indeed, to do so would run against our precedent that the provision “must be liberally construed . . . to ensure a federal forum in any case where a . . . private actor[] acting on [a federal] official‘s behalf may raise a defense arising out of his official duties.” Express Scripts, 119 F.4th at 185 (citation modified). We have not before adopted, and do not today adopt, “a narrow, grudging interpretation of
Specifically, in reaching its conclusion, the district court overread Watson‘s citation to Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387 (5th Cir. 1998). In Watson, the Supreme Court descriptively observed that many lower courts -- including
We recognize that there exists a spectrum of government contracts: on one end of the spectrum -- the non-removable end -- are traditional commercial agreements to purchase off-the-shelf goods, while on the other end are contracts where, as in Winters, the government exhibits total dominion and control over the private entity‘s production of a product. Our decision establishes no bright line, and we hold only that the nature of the PCB-infused devices that GE produced for the government, at the government‘s demand and with GE‘s close cooperation and dedication of its facilities to government needs, places this case on the removable side of the spectrum.8
Finally, we are unpersuaded by Czerno‘s arguments that our decision in Shell Oil prohibits GE from removing this case. There, dealing with claims against oil companies for fossil fuel-related environmental damages, we declined to permit removal because there was “simply no nexus between anything for which Rhode Island seeks damages” -- specifically, selling oil and gas products that were damaging to the environment and engaging in a misinformation campaign about their products’ impact on the environment -- “and anything the oil companies allegedly did at the behest of a federal officer.” Rhode Island v. Shell Oil Prods. Co., 979 F.3d 50, 60 (1st Cir. 2020), cert. granted, judgment vacated on other grounds, 141 S. Ct. 2666 (2021) (“Shell Oil I“) (emphasis added); Shell Oil II, 35 F.4th at 53 n.6 (expressly “adher[ing] to” the
2. “For or Relating To”
Having demonstrated that it acted under federal officers’ authority in developing PCB-infused electrical products, GE must next show that the allegations in Czerno‘s complaint are based on conduct “for or relating to” GE‘s work under federal officers.9
Czerno‘s principal argument on appeal is that there is no causal nexus between the allegations in her complaint and GE‘s work for the government because her claim relates to the disposal
First, as discussed, the 2011 amendment to the federal officer removal statute expanded the right of removal, so GE need not prove that the work it did for the federal government directly caused the injuries Czerno alleges -- it need only show that the allegations “stand in some relation” to, or are in “association with or connection with,” GE‘s work for the government. Plaquemines Parish, 146 S. Ct. at 1060 (quoting Morales, 504 U.S. at 383); see Moore, 25 F.4th at 34.10 Accordingly, even accepting that the government only directed GE to manufacture devices containing PCBs and said nothing regarding disposal of PCBs from the manufacturing process, removal is appropriate. Improper disposal itself “relates to” GE‘s use and manufacture of products containing PCBs. See Plaquemines Parish, 146 S. Ct. at 1060-62.
Second, Czerno severely understates the scope of her complaint. Her complaint expressly seeks recovery from GE for its use of PCB materials and manufacture of products containing
- In Count III of her complaint, Czerno demands recovery for GE‘s “defective design” of Pyranol, as an “unreasonably dangerous” material.
- In Count VI, Czerno seeks recovery for GE‘s “use [of] PCBs in the manufacturing process despite knowing that PCBs possessed” toxic qualities.
- In Counts IX and X, Czerno demands recovery for GE‘s “ongoing use, misuse . . . and distribution of PCBs and Pyranol,” as well as its storage and disposal of the same.
- In Count XIII, Czerno seeks damages for GE‘s “use, disposal . . . and . . . maintaining” of “inherently” ultrahazardous PCBs.
The district court erred by reading Czerno‘s complaint “as [a] whole” and inferring the gravamen of her complaint to be that GE
Because the federal government expressly contracted with GE to use and manufacture Pyranol and Pyranol-infused devices, these claims are more than enough to satisfy the “relating to” nexus element. This is not a close case where the relationship between the allegations in the complaint and the defendant‘s acts under a federal officer are “tenuous, remote, or peripheral.” Plaquemines Parish, 146 S. Ct. at 1061 (quoting Rutledge v. Pharm. Care Mgmt. Ass‘n, 592 U.S. 80, 94 (2020) (Thomas, J., concurring)). Czerno‘s claims seeking recovery for GE‘s design, manufacture, and use of Pyranol and Pyranol-infused devices are plainly “for or relating to” GE‘s production of Pyranol and Pyranol-infused devices under federal officers.11
Accordingly, GE has satisfied the “for or relating to” nexus element of the statute.
C. Colorable Federal Defense
The remaining element of
III.
We reverse the district court‘s decision and remand the case to the district court to decide whether GE has presented a colorable federal defense.