Federal-Officer Removal: Mandatory Jurisdictional Review and the Limits of Ordinary Government Contracts

A. Precedents Cited and Their Influence

Appellate jurisdiction and review of a remand denial

Thomas v. Blue Cross & Blue Shield Ass'n, 594 F.3d 814 (11th Cir. 2010)

This decision supplies the starting principle that an appellate court must examine its own jurisdiction on its own initiative. Here, that obligation required the panel to identify a valid basis for hearing the interlocutory appeal before considering whether removal was proper.

Chicago, R.I. & P.R. Co. v. Stude, 346 U.S. 574 (1954), and Caterpillar Inc. v. Lewis, 519 U.S. 61 (1996)

The opinion cites these decisions for the proposition that an order denying remand is not, standing alone, final and immediately appealable. They establish the limitation around which the court’s new procedural holding operates: the decision does not authorize an immediate appeal from every remand denial. An independently appealable order must provide the appellate entry point.

MacGinnitie v. Hobbs Grp., LLC, 420 F.3d 1234 (11th Cir. 2005)

The Eleventh Circuit had previously reviewed a remand denial alongside an injunction denial, but without addressing the source or mandatory character of that review. The present opinion therefore treats the jurisdictional question as unresolved rather than assuming that earlier practice had settled it.

Kysor Indus. Corp. v. Pet, Inc., 459 F.2d 1010 (6th Cir. 1972)

This case represents the majority position that the remand question must be considered when an otherwise proper appeal brings the case before the appellate court, because removal implicates subject-matter jurisdiction. Its reasoning supports treating review as obligatory rather than optional.

In re Methyl Tertiary Butyl Ether ("MTBE") Prods. Liab. Litig., 488 F.3d 112 (2d Cir. 2007)

This is the principal persuasive authority for the appellate holding. It explains that the duty to examine both appellate and district-court jurisdiction survives even when an appeal is interlocutory. Otherwise, appellate review could compound a district court’s jurisdictional error. The Eleventh Circuit also adopts its caution against treating ordinary pendent-appellate-jurisdiction doctrine as necessarily controlling a challenge to the lower court’s power to hear the case at all.

Takeda v. Nw. Nat. Life Ins. Co., 765 F.2d 815 (9th Cir. 1985), and PCI Transp., Inc. v. Fort Worth & W. R. Co., 418 F.3d 535 (5th Cir. 2005)

These decisions reinforce the majority approach. Together with the Second and Sixth Circuit authorities, they demonstrate that mandatory examination of removal jurisdiction is a recognized response to an otherwise appealable interlocutory order.

Great S. Fire Proof Hotel Co. v. Jones, 177 U.S. 449 (1900)

Quoted through the Second Circuit’s analysis, this decision supplies the foundational sequence: an appellate court first examines its own jurisdiction and then that of the court below. That sequence explains why a jurisdictionally defective district-court ruling cannot simply be reviewed on its substantive merits.

Ne. Rural Elec. Membership Corp. v. Wabash Valley Power Ass'n, Inc., 707 F.3d 883 (7th Cir. 2013), as amended (Apr. 29, 2013), and Oklahoma ex rel. Edmondson v. Magnolia Marine Transp. Co., 359 F.3d 1237 (10th Cir. 2004)

These cases represent the competing approach. They permit review of an accompanying remand denial through pendent appellate jurisdiction because the jurisdictional issues are intertwined with the appealable order. The practical distinction is discretion: those courts regard review as permissible, whereas the Eleventh Circuit regards the jurisdictional inquiry presented here as mandatory.

Swint v. Chambers Cnty. Comm'n, 514 U.S. 35 (1995)

This decision provides the background for limited pendent appellate review of otherwise nonappealable matters. The panel declines to treat it as resolving the present issue because the district court in that case possessed subject-matter jurisdiction. The Supreme Court therefore had not addressed the special problem of an appeal arising from proceedings that may have lacked jurisdiction from the outset.

The purposes and requirements of federal-officer removal

Bailey v. Janssen Pharmaceutica, Inc., 536 F.3d 1202 (11th Cir. 2008)

This case establishes de novo review of a remand denial involving federal subject-matter jurisdiction. Accordingly, the panel independently assessed the legal sufficiency of Snap’s removal theory rather than deferring to the district court’s conclusion.

Tennessee v. Davis, 100 U.S. 257 (1879)

This historical authority explains the statute’s protective purpose: States may not obstruct the federal government’s lawful exercise of constitutional authority. The opinion uses that purpose to distinguish litigation threatening federal operations from ordinary litigation against private businesses that happen to have federal customers.

Watson v. Philip Morris Cos., Inc., 551 U.S. 142 (2007)

This is the central substantive authority. Although “acting under” receives a liberal construction, it has limits. The relationship ordinarily involves “subjection, guidance, or control,” and the private party must assist in carrying out the federal superior’s duties or tasks. Extensive interaction with government is not itself enough.

The opinion also draws on the absence of delegated authority in that case. Philip Morris could not establish the necessary relationship with the Federal Trade Commission merely through its regulatory circumstances. Here, the court similarly found no delegation converting Snap’s commercial advertising services into the exercise of federal responsibilities. Importantly, the decision does not reduce the inquiry to the mere existence of a contract or payment.

Schleider v. GVDB Operations, LLC, 121 F.4th 149 (11th Cir. 2024)

This decision states the three-part framework for removal by a private entity: it must be a statutory person acting under a federal officer, the challenged conduct must have been performed under color of federal office, and the defendant must raise a colorable federal defense. Snap failed the first requirement, making the remaining requirements unnecessary to decide.

Caver v. Cent. Ala. Elec. Coop., 845 F.3d 1135 (11th Cir. 2017)

This case supplies both the governing framework and a concrete contrast. The electric cooperative operated within an unusually close federal relationship involving restrictive financing, extensive supervision, and a congressionally selected public function: supplying electricity to rural communities.

The present opinion emphasizes two aspects of that relationship. First, federal control extended deeply into planning, construction, operation, accounting, and financial decisions. Second, the cooperative helped perform a basic governmental task rather than simply selling ordinary commercial services. Those features explain why the cooperative qualified while Snap did not.

Chevron USA Inc. v. Plaquemines Par., 608 U.S. 1 (2026)

As described in the supplied opinion, this recent Supreme Court decision broadened the second removal requirement concerning the connection between the challenged conduct and federal office. It did not alter the first requirement, which the parties there did not dispute. Consequently, a broader conduct-related nexus cannot compensate for Snap’s failure to establish that it was “acting under” a federal officer.

Distinguishing governmental assistance from ordinary commerce

Cnty. Bd. Of Arlington Cnty., Va. v. Express Scripts Pharmacy, Inc., 996 F.3d 243 (4th Cir. 2021)

The opinion uses this decision for the boundary principle that selling standardized consumer products to the government does not itself establish federal-officer status. Contractual specifications and government supervision of delivery may remain ordinary incidents of a purchase. This supports examining the substance of Snap’s arrangements rather than treating customization and approval as dispositive.

Town of Pine Hill, Ala. v. 3M Co., No. 25-10746, 2026 WL 2589473 (11th Cir. Sept. 2, 2026)

The contractor manufactured military-developed firefighting foam according to detailed military specifications. The opinion treats that specialized production as work performed on the government’s behalf, illustrating the kind of bespoke governmental undertaking that can satisfy the first removal requirement.

The contrast is qualitative, not simply whether a customer requested particular features. Snap’s advertisements were tailored to agency messages but were not meaningfully different in kind from advertisements it created for other customers.

Salt River Project Agr. Imp. & Power Dist. v. Fed. Power Comm'n, 391 F.2d 470 (D.C. Cir. 1968)

Quoted through the electric-cooperative precedent, this authority describes extensive federal supervision over a cooperative’s planning, construction, and operation. Its role is illustrative: it helps demonstrate how pervasive federal direction differs from ordinary client feedback on a purchased product.

City of Brunswick ex rel. Mayor & Bd. of Comm'rs v. Honeywell Int'l, Inc., 184 F.4th 1230 (11th Cir. 2026)

This decision supports both major guideposts identified by the panel. Under an environmental consent decree, the Environmental Protection Agency retained substantial power to supervise remediation, halt work, and take over performance. The defendants also undertook remediation that the agency otherwise would have had to perform.

The case therefore illustrates a relationship involving both operational control and the performance of governmental responsibility. Snap’s advertising arrangements involved neither comparable supervisory authority nor a comparable transfer of responsibility.

Magnin v. Teledyne Continental Motors, 91 F.3d 1424 (11th Cir. 1996)

An aircraft inspector appointed under Federal Aviation Administration regulations possessed formally delegated federal authority. This provides a clear example of the difference between a private actor exercising an assigned governmental role and a company supplying a service that an agency uses in its own work.

Diversity jurisdiction and the separate constitutional litigation

Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405 (11th Cir. 1999), and Moor v. Alameda Cnty., 411 U.S. 693 (1973)

These cases establish that a State, including its arms and alter egos, is not a citizen for diversity purposes. Their relevance depends on identifying the real party in interest. Because Florida was enforcing its own laws and seeking penalties for itself, it was not merely a nominal plaintiff whose presence could be disregarded.

Comput. & Commc'ns Indus. Ass'n v. Uthmeier, 826 F.Supp.3d 1358 (N.D. Fla. 2025)

In this separate litigation, associations representing technology companies obtained a preliminary injunction after the district court found HB3 likely unconstitutional. The district court relied on that reasoning when denying Florida’s injunction request against Snap.

The Eleventh Circuit did not adopt or reject the constitutional analysis. It noted that the separate decision was on appeal and resolved this case solely on jurisdictional grounds. Vacating the injunction denial here therefore neither overturns the separate preliminary injunction nor establishes HB3’s constitutionality.

B. Legal Reasoning

1. An independently appealable order triggers the necessary jurisdictional inquiry

The statutory starting point was straightforward. Section 1292(a)(1) permits an interlocutory appeal from an order denying an injunction. Florida’s appeal from the temporary-injunction denial therefore properly brought the case before the Eleventh Circuit.

The accompanying remand denial presented a different problem. It was not a final judgment under § 1291, and the statutory treatment of appeals from orders granting remand in federal-officer cases did not directly authorize an appeal from a refusal to remand.

The court nevertheless concluded that it had to examine that refusal. Reviewing an injunction ruling without first checking the district court’s jurisdiction could perpetuate an exercise of authority that Congress had never granted. The obligation follows from the nature of subject-matter jurisdiction, not from discretionary authority to review related questions.

The holding is expressly framed for cases removed under the federal-officer statute when the remand denial is appealed together with another appealable order. It does not make a standalone denial of remand immediately appealable.

2. “Acting under” demands more than serving a federal customer

For a private defendant, federal-officer removal requires more than showing that its work advances a federal agency’s objectives. Otherwise, an enormous range of ordinary government vendors could claim a federal forum whenever state litigation affected their businesses.

The court organized the precedents around two recurring features:

• Governmental control: a degree of direction over the contractor’s work exceeding the individualized service ordinarily provided to commercial customers.
• Governmental responsibility: a delegation of authority or assignment of a task that the government otherwise would have to undertake.

These are fact-sensitive guideposts for applying “acting under,” not a replacement for the established three-part removal framework. Formal delegation is a strong route to qualification, but the opinion also recognizes arrangements in which a contractor performs a basic governmental task without a formal delegation of legal authority.

3. Advertising customization did not establish exceptional federal control

Snap identified substantial collaboration: agency briefs, research, messaging specifications, interactive advertisements, dedicated client support, feedback, and final approval. The court nevertheless regarded these as ordinary features of an advertising transaction.

Its coffee-shop analogy captures the distinction. A customer may specify a complicated beverage, review the result, and approve it without becoming a superior under whose authority the barista acts. Likewise, agency control over the message being purchased does not necessarily create a federal supervisory relationship over the seller.

The decisive point was not that Snap’s work lacked value or customization. It was that the agencies purchased advertising services in substantially the same manner as other advertisers. Describing Snap as a “foundational collaborator,” or emphasizing its ability to reach teenagers, did not change that commercial structure.

4. The agencies retained their responsibilities rather than delegating them

DHS and the FDA unquestionably possessed statutory authority to conduct public-information campaigns. But the existence of agency authority did not establish that Snap received any of it.

The agencies continued to direct their outreach efforts and used Snap’s products to distribute their messages. The agreements did not appoint Snap to exercise federal authority or assign it an equivalent governmental role. The court therefore distinguished using a private service to carry out an agency’s mission from placing the service provider in a delegated governmental position.

The absence of delegation was particularly significant because Snap’s relationships also lacked the other features that had supported removal in the contractor precedents. Neither memoranda of understanding nor a contract, by their labels alone, established the necessary relationship.

5. The remaining federal-officer requirements were left undecided

Once Snap failed to establish that it acted under a federal officer, the court did not need to decide whether Florida’s claims sufficiently related to its federal work or whether Snap had a colorable federal defense. The opinion thus does not adjudicate the strength of Snap’s constitutional or preemption defenses, even under the relatively preliminary “colorable” standard.

6. Florida’s sovereign enforcement interest defeated diversity jurisdiction

Snap’s alternative theory depended on treating Florida as a nominal plaintiff and individual minors as the true interested parties. The court rejected that characterization by examining the claims and requested relief.

The statutes did not require the Department to allege specific injuries to particular children, and its complaint made no such allegations. Civil penalties followed statutory violations, and the Department sought those penalties for itself rather than as compensation payable to injured individuals.

Accordingly, the State’s own enforcement interest was real and direct. The fact that legislation protects identifiable people does not mean those people become the sole real parties in every governmental enforcement action.

No additional district-court fact-finding was necessary: the existing record established Florida’s role. Because Florida is not a citizen under § 1332, its genuine participation foreclosed diversity jurisdiction.

7. Jurisdiction had to precede constitutional adjudication

The panel acknowledged that HB3 raised serious constitutional questions but lacked authority to decide them in this improperly removed case. This was not simply a discretionary preference for a narrower ruling. Without subject-matter jurisdiction, the federal district court could not resolve Florida’s injunction request on the merits.

The remedy followed that limitation. Vacating the injunction denial did not grant Florida an injunction; it removed a ruling entered in a case that did not belong in federal court.

C. Potential Impact

Appellate practice

The opinion supplies persuasive guidance that, in the specified federal-officer removal setting, parties cannot assume that the appellate court will reach an injunction’s substantive merits before examining removal. The jurisdictional inquiry is mandatory even though the remand denial would not independently support an immediate appeal.

Government contractors and digital platforms

The reasoning limits attempts to convert ordinary federal purchasing relationships into federal-officer status. Advertising platforms, technology vendors, and other service providers should expect scrutiny of operational control and governmental responsibility, not merely evidence of agency collaboration, customized deliverables, or federal approval.

The opinion does not categorically exclude advertisers or technology companies from § 1442. A materially different arrangement involving delegated duties or unusually close federal direction could produce a different result. Its central lesson is that a federal customer is not necessarily a federal superior.

State regulatory enforcement

The diversity analysis strengthens the distinction between sovereign enforcement and litigation conducted merely as a representative for private claimants. Where a State seeks its own statutory penalties without needing to prove individualized injury, defendants cannot establish diversity simply by identifying the residents whom the law protects.

That conclusion remains claim- and remedy-sensitive. The opinion does not hold that every action brought in a State’s name necessarily defeats diversity; it holds that Florida was genuinely interested in this enforcement action.

Social-media regulation and constitutional litigation

The immediate effect is procedural: this enforcement action returns to state court. The opinion neither endorses Florida’s social-media policy nor rejects Snap’s objections to it. It leaves the substantive constitutional controversy, including the separate litigation over HB3, unresolved.