Inextricable Federal Nexus in PFAS Litigation: Expanding Removal Jurisdiction under 28 U.S.C. § 1442(a)(1)

Introduction

This commentary examines the recent decision of the United States Court of Appeals for the Fourth Circuit in the consolidated appeal of STATE OF MARYLAND and STATE OF SOUTH CAROLINA ex rel. Alan Wilson versus 3M Company and other defendants. The core legal issue before the court concerned whether 3M could successfully remove certain PFAS (per- and polyfluoroalkyl substances) related lawsuits from state court to federal court under the federal officer removal statute, 28 U.S.C. § 1442(a)(1).

At the heart of the litigation were two bifurcated sets of claims filed by Maryland and South Carolina. One set pertained to PFAS contamination allegations arising from 3M’s Military AFFF (aqueous film-forming foam) production – a product manufactured by 3M for the United States military governed by federal specifications – while the other pertained to PFAS contamination allegedly caused by 3M’s non-AFFF commercial products. The States employed disclaimers in their complaints to limit the scope of the allegations, expressly excluding PFAS contamination from Military AFFF in the non-AFFF claims. 3M, however, contended that due to the unavoidable intermingling of PFAS from its various products, including Military AFFF, there remained a significant nexus with its federal work that justified removal to federal court.

Summary of the Judgment

The Fourth Circuit vacated the lower district court decisions that had remanded the non-AFFF suits back to state court. The appellate court held that the States’ disclaimers were not dispositive in dismissing the federal nexus between 3M's federal contractor activities and the alleged PFAS contamination. Relying on established precedents and the broad, liberal interpretation mandated by Congress for the federal officer removal statute, the court reasoned that 3M’s allegations that PFAS from its Military AFFF commingle with PFAS from its non-AFFF products are sufficient to create a "nexus" with its federal work.

The court, however, declined to analyze the remaining removal elements – namely, whether 3M acted under a federal officer and whether it raised a colorable federal defense – leaving those issues for further consideration by the district courts on remand. Additionally, a dissenting opinion by Senior Judge Floyd underscored concern regarding the expansiveness of the removal jurisdiction when slight ties to federal activity are alleged, urging greater deference to state-court adjudication of nuanced factual issues.

Analysis

Precedents Cited

The Court extensively discussed several precedents which were pivotal in framing its analysis:

Anne Arundel County v. BP P.L.C. (94 F.4th 343, 4th Cir. 2024): This case was cited to highlight the requirement for a defendant to plausibly allege that the charged conduct is connected with federal authority. The decision emphasized that a removal notice must contain a “short and plain statement” sufficient to invoke the federal officer removal doctrine.
WILLINGHAM v. MORGAN (395 U.S. 402): This case underpins the policy rationale behind the broader interpretation of removal jurisdiction – protecting federal operations by preserving a federal forum when federal actors or their contractors raise a defense arising from their official duties.
Baker v. Atl. Richfield Co. (962 F.3d 937, 7th Cir. 2020): Baker was pivotal in analogizing the difficulty of separating sources of contamination. The court noted that where pollutants from disparate sources commingle, questions about causation and apportionment are best resolved in a federal forum.
Sawyer v. Foster Wheeler LLC (860 F.3d 249, 4th Cir. 2017): This decision reinforced that the nexus requirement should be analyzed with a liberal construction to ensure that even partial connections to federal activities allow for removal.
Wood v. Crane Co. (764 F.3d 316, 4th Cir. 2014): Although relied upon by the States to support the effectiveness of a disclaimer, the court distinguished Wood by noting that 3M’s theory of removal was advanced in a timely and different fashion, making Wood less applicable.

Legal Reasoning

The court’s legal reasoning rested on a multifaceted approach:

Liberal Interpretation of Removal Statute: The court reaffirmed that 28 U.S.C. § 1442(a)(1) is broadly construed to “ensure a federal forum” for cases implicating federal authority. This expansive reading minimizes any rigid application of the plaintiff’s disclaimer when a defendant asserts a federal contractor defense.
Nexus or Connection Requirement: Central to the court’s holding was the “nexus” element. The Court rejected the argument that the States’ clear disclaimer — which sought to insulate the claims from Military AFFF — automatically precluded removal. Instead, it determined that the inherent commingling of PFAS, whether originating from Military AFFF or non-AFFF products, creates a factual scenario in which the connection to federal work is sufficiently plausible to meet the statutory requirement.
Application to Mixed Contamination Claims: The court analogized the present situation to that in Baker, asserting that when contamination sources mix, a factfinder will have to address causation and apportionment issues. Therefore, even if state-law claims are couched exclusively in non-federal terms, the existence of mixed contamination inherently implicates federal activity.
Deference to Defendant’s Theory of the Case: The opinion stressed that, under the removal statute, the defendant’s theory of the case should be credited in determining whether the charged conduct relays back to federal functions, even if the plaintiff’s complaint appears to be purely state-law based.

Impact on Future Cases and Relevant Area of Law

This Judgment has the potential to significantly affect the landscape of products liability litigation involving state and federal claims in several ways:

Broadened Access to Federal Forum: Defendants with a federal contractor background may increasingly avail themselves of removal to federal court, even when state-law claims predominate, provided they can establish any nexus between their federal work and the alleged conduct.
Mixed Evidence and Causation Challenges: Future cases involving chemical contamination, particularly where multiple sources are involved, may lean on this decision to argue that complex causation issues—such as apportioning responsibility for commingled environmental pollutants—are better suited for adjudication in federal courts.
Reevaluation of Disclaimers: Plaintiffs crafting complaints will need to be more cautious in using disclaimers aimed at isolating federal from non-federal conduct because such disclaimers may not be sufficient to defeat a well-pleaded federal removal claim.
Procedural Considerations: By remanding the cases for the district courts to evaluate remaining removal elements, the decision underscores the necessity for robust factual development regarding the extent of contamination linked to federal versus non-federal production.

Complex Concepts Simplified

Nexus Requirement: This is the idea that the alleged misconduct (in this case, environmental contamination) must have a “connection” or relationship with activities carried out under federal authority. Even if only part of the contamination arises from federally contracted production, the connection can be enough for removal.

Federal Officer Removal Statute: 28 U.S.C. § 1442(a)(1) allows a defendant, particularly a federal contractor or actor, to demand that a case be heard in federal court instead of state court if it relates to acts performed under or connected to federal authority. The statute is designed to protect federal operations from state interference.

Disclaimers: In these lawsuits, the States attempted to “disclaim” or exclude any claims related to contamination from Military AFFF. The Court, however, held that even a clear disclaimer does not automatically sever the factual connection between mixed pollutants from federal and non-federal production, and thus cannot preempt removal.

Conclusion

This Fourth Circuit decision represents a significant moment in the interpretation of the federal officer removal statute. By holding that the intermingling of PFAS from Military AFFF with PFAS from other sources remains sufficiently connected to federal activities, the court effectively broadens the circumstances under which a federal forum may be invoked. While the ruling vacates the district courts' remand orders and sends the case back for further proceedings on additional removal elements, it signals a trend toward a more expansive reading of federal removal jurisdiction in cases involving complex environmental disputes.

Ultimately, the decision emphasizes that when significant factual issues such as mixed contamination and causation arise, these matters are best resolved with the protections and expertise available in federal court, thereby ensuring that parties acting under federal authority are not unfairly subjected to state-law limitations.

This commentary highlights the importance of carefully considering the interplay between state and federal claims in environmental and products liability cases, and signals to legal practitioners that even seemingly narrow disclaimers may not shield a defendant from federal removal if a plausible federal nexus can be demonstrated.