“Ascertainability” and the 30-Day Removal Clock under § 1446(b)(3):
A Comprehensive Commentary on Vermont v. 3M Co. (2d Cir. 2025)

1. Introduction

The Second Circuit’s decision in Vermont v. 3M Co., No. 24-1250-cv (Aug. 19, 2025), addresses a pivotal procedural question: When does the thirty-day period for removal under 28 U.S.C. § 1446(b)(3) begin to run in cases invoking the federal-officer removal statute, § 1442(a)(1)? The State of Vermont sued 3M in state court for alleged contamination of natural resources by “forever chemicals” (PFAS). 3M sought to remove the action to federal court, arguing that it had manufactured PFAS-containing products pursuant to military specifications, thereby qualifying for § 1442(a)(1) removal. The district court remanded, holding the removal untimely. On appeal, the Second Circuit vacated that order, clarifying the standard for when removability can “first be ascertained.”

2. Summary of the Judgment

The panel (Judges Cabranes, Lohier, and Sullivan) unanimously held:

1. The correspondence from Vermont’s counsel (an email forwarding a Vermont DEC letter) did not supply information from which 3M could “ascertain” that the case was removable under § 1442(a)(1).
2. Consequently, the 30-day clock of § 1446(b)(3) did not start upon receipt of that correspondence; 3M’s subsequent notice of removal was timely.
3. The district court’s focus on what 3M “knew or should have known” outside the face of the plaintiff’s paper was erroneous in this context.
4. The court remanded for the district court to decide, in the first instance, whether 3M has otherwise met the substantive requirements of federal-officer removal.

3. Analysis

3.1 Precedents Cited and Their Influence

• Mesa v. California, 489 U.S. 121 (1989) – Established that a “colorable federal defense” is required for § 1442(a)(1) removal. The Second Circuit invoked Mesa for the foundational framework but did not decide its application to 3M, leaving it to the district court.
• Moltner v. Starbucks Coffee Co., 624 F.3d 34 (2d Cir. 2010) – Articulated a “bright-line” rule in diversity cases: the removal clock starts only when an amount of damages is explicitly specified in a paper served on the defendant. Although Moltner involved diversity, the panel analogized its clarity requirement to this federal-officer context.
• Cutrone v. Mortgage Electronic Registration Sys., Inc., 749 F.3d 137 (2d Cir. 2014) – Extended the Moltner bright-line approach to CAFA cases. The court used Cutrone to show consistency in requiring explicit, readily ascertainable facts before removal clocks run.
• Railey v. Sunset Food Mart, Inc., 16 F.4th 234 (7th Cir. 2021) – Cited for the proposition that a defendant can be charged with knowledge of jurisdictional facts about its own operations that it can “discern with ease.” The Second Circuit distinguished Railey because 3M had no ready knowledge of historically obscure military specifications.
• Other citations (Kelley v. Richford Health Ctr., Agyin v. Razmzan) concerned appellate jurisdiction and standard of review, confirming the court’s authority to hear the remand appeal.

3.2 Legal Reasoning

The court’s reasoning turns on the statutory phrase “may first be ascertained” in § 1446(b)(3). Key aspects:

1. Dictionary‐Based Interpretation. Relying on ordinary-meaning dictionaries, the court defined “ascertain” as learning “with certainty.” The information served on 3M must therefore make removability objectively apparent without demanding extensive independent inquiry.
2. Content of the Plaintiff’s Paper. The email and DEC letter lacked any reference to (a) military contracts, (b) copper-clad laminates, or (c) mandated PFAS use. Absent those elements, a federal-officer defense was not reasonably “certain.”
3. Inquiry Notice vs. Burden of Investigation. Although 3M operated the facility decades earlier, the court declined to impose on defendants a duty to perform “extensive archaeological research” into forgotten military specs to trigger § 1446(b)(3).
4. Avoiding a Knowledge-Based Trigger. The panel rejected an approach where a defendant’s potential subjective knowledge starts the clock, favoring a clearer, administrable rule tied to what the plaintiff actually provides.
5. Preservation of Federal Interests. Because § 1442(a)(1) exists to protect federal officers and contractors from state‐court hostility, procedural ambiguities should not defeat federal-officer removal absent clear notice.

3.3 Likely Impact of the Decision

• Clarifies Removal Timing for Federal Contractors. Companies embroiled in PFAS and other mass-tort suits often have long, complex government supply histories. The decision ensures they are not penalized for removals requiring deep historical fact-finding.
• Creates a Circuit Precedent on “Ascertainability.” Prior Second Circuit rulings focused on diversity and CAFA. Now, there is binding precedent specific to federal-officer removal, likely to influence district courts within (and perhaps persuasive authority outside) the Circuit.
• Encourages Detailed Pleading by Plaintiffs. Where states or private plaintiffs wish to pre-empt federal-officer removal, they may supply more explicit allegations early, paradoxically making removal both easier and the 30-day window shorter.
• May Reduce Premature Remand Motions. District courts will examine whether the triggering paper truly “pins down” the federal-officer nexus before finding untimeliness.
• Possible Petition for Certiorari. Other circuits (e.g., the Fifth) sometimes apply a more defendant-knowledge approach. The decision deepens the dialogue on whether “ascertainability” is strictly paper-based or can rest on inferred knowledge, raising potential for Supreme Court review.

4. Complex Concepts Simplified

PFAS (“Per- and Polyfluoroalkyl Substances”)

A class of synthetic chemicals known for persistence in the environment (“forever chemicals”) and linked to health risks.

Federal-Officer Removal Statute (28 U.S.C. § 1442(a)(1))

Allows suits against federal officers or those acting under them to be moved from state to federal court when they assert a colorable federal defense.

§ 1446(b)(3) 30-Day Clock

Gives a defendant 30 days from receiving an “amended pleading, motion, order or other paper” that makes removability first ascertainable to file a notice of removal.

“Ascertainability”

In this context, information is ascertainable if it makes federal jurisdiction certain on its face without requiring significant outside investigation.

Military Specification (Mil-Spec)

A detailed standard issued by the U.S. Department of Defense describing the technical requirements for materials or products used by the military.

5. Conclusion

The Second Circuit’s decision in Vermont v. 3M Co. establishes a clear, administrable rule: for federal-officer removals, the 30-day time limit under § 1446(b)(3) starts only when the plaintiff’s paper itself makes that basis for removal ascertainable with certainty. Where crucial jurisdictional facts—such as military specifications mandating a contested substance—are absent from the plaintiff’s communication, defendants are not penalized for taking time to uncover those facts. This clarification protects the federal interests embodied in § 1442(a)(1), balances procedural fairness, and signals to litigants that precise, explicit pleadings drive the removal timeline.