Specialized Military PCB Manufacturing Triggers Federal Officer Removal: “Acting Under” Without “Tight Control” and a Broad Post-2011 “Relating To” Nexus

1. Introduction

Czerno v. General Electric Company is an interlocutory removal decision arising from PCB-related personal injury claims. Plaintiff-Appellee Crystal Czerno sued General Electric Company (“GE”) in Massachusetts state court, individually and on behalf of her minor son, alleging that PCB contamination associated with GE’s Pittsfield, Massachusetts plant caused her son’s leukemia. The complaint asserted multiple theories (including strict liability for “defectively designed Pyranol,” negligence, fraud, and nuisance) tied to GE’s “use, disposal, storing, keeping, and/or maintaining of PCBs.”

GE removed under the federal officer removal statute, 28 U.S.C. § 1442(a)(1), offering two pathways: (1) GE’s wartime and defense-related contracting to manufacture PCB-infused electrical equipment for the federal government; and (2) GE’s later remediation work under an EPA consent decree. The district court remanded; GE appealed.

The First Circuit reversed, holding that GE satisfied the statute’s first two elements—“acting under” and “for or relating to”—based on its military contracting. The panel remanded for the district court to address the remaining element: whether GE asserted a “colorable federal defense.”

2. Summary of the Opinion

The First Circuit held that GE carried its burden to establish federal officer jurisdiction as to:

• “Acting under”: GE’s production of PCB-infused electrical devices (e.g., transformers and capacitors) for military use—particularly during World War II and continuing defense servicing needs thereafter—constituted assisting federal officers in carrying out governmental tasks. The court rejected a district-court approach that demanded “tight control” over the contractor’s actions.
• “For or relating to”: Czerno’s claims, as pleaded, did not solely target dumping; they included product design, manufacture, and “use” of PCBs/Pyranol during the relevant period. Under the post-2011 “relating to” language, GE was not required to show a strict causal nexus between military direction and alleged injuries. It was enough that the claims had an association/connection with GE’s federally directed PCB-related manufacturing and use.

The court did not decide whether GE had a “colorable federal defense,” remanding for the district court to address that element in the first instance.

3. Analysis

3.1. Precedents Cited

A. Core Supreme Court framework for § 1442(a)(1)

• Willingham v. Morgan, 395 U.S. 402 (1969): Quoted for the proposition that § 1442 removal is an “absolute” right and is available “regardless of whether the suit could originally have been brought” in federal court. The panel used this to emphasize the breadth and protective purpose of federal officer removal.
• Watson v. Philip Morris Cos., 551 U.S. 142 (2007): Central to the “acting under” inquiry. The court relied on Watson’s distinction between (i) mere regulatory compliance (insufficient) and (ii) private parties helping the government “produce an item that it needs” or fulfill “basic governmental tasks” (sufficient). Watson also supplied the commonly cited “subjection, guidance, or control” language, which the panel treated as characteristic but not a rigid “tight control” requirement.
• Mesa v. California, 489 U.S. 121 (1989): Cited (via later authority) for the tripartite structure of federal officer removal, including the “colorable federal defense” requirement.
• Chevron USA Inc. v. Plaquemines Parish, La., 146 S. Ct. 1052 (2026): The opinion’s doctrinal keystone. The First Circuit invoked Plaquemines Parish to police the boundary between:
  • “acting under” (relationship between contractor and government), and
  • “for or relating to” (relationship between pleaded allegations and federally directed conduct).
  The panel treated Plaquemines Parish as foreclosing the argument that “acting under” requires the defendant to have acted under a federal officer in taking the specific challenged actions—because that would collapse and render redundant the separate “relating to” element.
• Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992): Quoted (through Plaquemines Parish) for the broad ordinary meaning of “relating to” (bearing upon, pertaining to, associated/connected with). This supported the court’s rejection of a strict causation test.

B. First Circuit’s own removal jurisprudence (structure, burden, and pleading)

• Gov’t of P.R. v. Express Scripts, Inc., 119 F.4th 174 (1st Cir. 2024): Used repeatedly for (i) the removing party’s burden and that courts “must credit that party’s theory of the case,” (ii) the instruction to liberally construe § 1442(a)(1), and (iii) the rule that plaintiffs must “expressly renounce” removal-triggering claims to defeat § 1442 jurisdiction. Express Scripts also anchored the court’s insistence that “acting under” and “for or relating to” are distinct inquiries.
• Moore v. Elec. Boat Corp., 25 F.4th 30 (1st Cir. 2022): Cited for the standard of review and for key doctrinal propositions: (i) the “nexus” terminology for “for or relating to,” (ii) the post-2011 breadth of the nexus requirement and the absence of a causation requirement, (iii) that “[a]ny single claim is independently sufficient” to satisfy “for or relating to,” and (iv) the definition of “colorable federal defense” (not “wholly insubstantial and frivolous”).
• Rhode Island v. Shell Oil Prods. Co., 979 F.3d 50 (1st Cir. 2020) (“Shell Oil I”) and Rhode Island v. Shell Oil Prods. Co., 35 F.4th 44 (1st Cir. 2022) (“Shell Oil II”): The panel limited these fossil-fuel removal decisions to their “relating to” holdings and rejected using them to heighten the “acting under” requirement. Shell Oil I’s lack-of-nexus finding was distinguished because Czerno’s complaint expressly included claims about GE’s design/manufacture/use of PCB products, not merely downstream environmental harms.
• Maine v. 3M Co., 159 F.4th 129 (1st Cir. 2025): Cited (with Express Scripts) for the “express renunciation” principle—plaintiffs cannot avoid removal by characterization if the pleaded claims still connect to federally related conduct.

C. Government contractor “acting under” cases (within and beyond the First Circuit)

• Genereux v. Am. Beryllia Corp., 577 F.3d 350 (1st Cir. 2009): Noted as First Circuit recognition that supplying materials used in “military hardware” can support federal officer removal.
• Isaacson v. Dow Chem. Co., 517 F.3d 129 (2d Cir. 2008): Cited for the proposition that contractors satisfy “acting under” when they provide wartime products the government would otherwise have to produce itself.
• Sawyer v. Foster Wheeler LLC, 860 F.3d 249 (4th Cir. 2017): Used to reinforce that courts “unhesitatingly” find “acting under” satisfied in classic government contractor settings (there, assembling boilers for Naval vessels).
• Williams v. Lockheed Martin Corp., 990 F.3d 852 (5th Cir. 2021) and Papp v. Fore-Kast Sales Co., 842 F.3d 805 (3d Cir. 2016): Cited for the “archetypal” nature of military contractors as § 1442 defendants.
• Doe v. BJC Health Sys., 89 F.4th 1037 (8th Cir. 2023): Cited for the concept that acting under can be shown where the private party does the federal government’s “business,” not merely its own.

D. “Off-the-shelf” limits and the contractor spectrum

• Bd. of Cnty. Comm’rs of Boulder Cnty. v. Suncor Energy (U.S.A.) Inc., 25 F.4th 1238 (10th Cir. 2022), and Washington v. Monsanto Co., 738 Fed. App’x 554 (9th Cir. 2018): Cited (via Express Scripts) for rejecting removal when the defendant merely sells ordinary products at arm’s length to the government.
• Cnty. of San Mateo v. Chevron Corp., 32 F.4th 733 (9th Cir. 2022): Cited for the “widely available commercial product” concept—used by the First Circuit to distinguish GE’s specialized defense-oriented PCB equipment from ordinary commercial supply.

E. The “tight control” misstep and older Fifth Circuit language

• Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387 (5th Cir. 1998): Discussed as an example of an extreme, highly controlled wartime production arrangement (Agent Orange). The First Circuit cautioned against reading Winters as defining the “acting under” element and noted Winters’ “strict control” language was used in the nexus analysis and predated the 2011 statutory amendment.
• Progin v. UMass Mem’l Health Care, Inc., 2023 WL 4535129 (D. Mass. July 13, 2023): The district court relied on it for a “tight control” requirement; the First Circuit rejected that approach as unsupported by Supreme Court/First Circuit precedent.

F. Other authorities shaping the nexus/relating-to breadth

• Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286 (5th Cir. 2020): Cited for the post-amendment “connection or association” standard and also for the “colorable defense” formulation used in Moore.
• Rutledge v. Pharm. Care Mgmt. Ass’n, 592 U.S. 80 (2020) (Thomas, J., concurring): Quoted (via Plaquemines Parish) for the idea that “relating to” does not extend to connections that are “tenuous, remote, or peripheral”—but the panel found Czerno’s pleaded claims were not peripheral.
• Arizona v. Manypenny, 451 U.S. 232 (1981): Quoted (through Express Scripts) against “a narrow, grudging interpretation” of § 1442(a)(1).
• Attorney General v. Dow Chem. Co., 2024 WL 1740087 (D.N.J. Apr. 23, 2024): The district court relied on it; the First Circuit criticized its “causation” framing as inconsistent with the 2011 expansion.
• Wright & Miller’s Federal Practice & Procedure § 3726 (4th ed. 2026): Cited for the proposition that removal under § 1442(a)(1) brings the “entire action” even if only one controversy involves a federal officer.

3.2. Legal Reasoning

A. Separating the two relationships: government–contractor vs. claims–conduct

The opinion’s structural move—explicitly grounded in Chevron USA Inc. v. Plaquemines Parish, La.—is to prevent a common analytical error: demanding that the government have directed the precise tortious act (e.g., PCB dumping) as part of the “acting under” element. The court emphasized:

• “Acting under” asks whether GE was assisting federal officers in carrying out federal tasks (e.g., supplying war-related equipment), not whether federal officers directed the specific alleged wrong.
• “For or relating to” then asks whether the pleaded allegations have a sufficient connection/association with the federally directed work.

B. Why GE was “acting under” here

The panel treated GE’s wartime and defense supply relationship as the paradigmatic government-contractor scenario: priority military orders, production constraints, facility adaptation, and (at times) dedication of the Pittsfield plant’s Capacitor Department to government war needs. The military’s demand for Pyranol-based equipment (fire resistance, compactness, reliability) was framed as a governmental need that GE helped satisfy—i.e., assisting officers in “basic governmental tasks.”

Importantly, the court located GE’s activities on the “removable side” of a spectrum: not mere arm’s-length sales of “off-the-shelf” goods, but specialized products for defined military applications and reliance on GE’s technical recommendations (illustrated with Navy communications and transformer specifications).

C. Why the complaint was “for or relating to” GE’s federally directed conduct

The court applied the post-2011 understanding of “relating to”: GE did not have to show the government directed PCB dumping or that federally directed conduct caused the specific injury. It was enough that the allegations bear upon or are connected with GE’s manufacture/use of PCB-containing products for the government.

The panel also corrected a pleading-level mistake: the district court treated the complaint’s “gravamen” as dumping, but Moore v. Elec. Boat Corp. requires assessing whether any single claim independently satisfies the “for or relating to” requirement. Here, multiple counts expressly targeted design/manufacture/use/distribution of Pyranol and PCBs during a period that included wartime federal contracting.

D. The limited holding and remand posture

The court did not decide whether GE had a “colorable federal defense,” leaving that for the district court with guidance from Moore v. Elec. Boat Corp. and Latiolais v. Huntington Ingalls, Inc. that the defense is colorable unless “wholly insubstantial and frivolous” or asserted solely to obtain jurisdiction.

3.3. Impact

• Lowered practical barriers to removal in toxic-tort cases involving federal supply chains: Defendants with credible evidence of specialized federal contracting (especially military procurement) may clear “acting under” without proving “tight control” or that the government directed the specific hazardous disposal practices.
• Post-2011 “relating to” has real work to do: The decision reinforces that “relating to” is broader than causation and can capture downstream allegations connected to federally directed manufacturing/use, especially where the complaint expressly pleads product design/manufacture/use claims.
• Pleading strategy consequences: The panel’s reliance on Gov’t of P.R. v. Express Scripts, Inc. and Maine v. 3M Co. underscores that plaintiffs may not defeat removal by recharacterizing the lawsuit’s “gravamen” if the complaint still asserts claims that connect to federally directed conduct; only “express renunciation” can do that.
• Doctrinal clarity after Plaquemines Parish: District courts in the First Circuit are put on notice not to conflate “acting under” with “for or relating to,” and not to import pre-2011 causation language into the nexus analysis.
• Next battleground shifts to federal defenses: Because “acting under” and “relating to” may be satisfied by specialized wartime contracting and broad pleadings, future disputes will often turn on whether the defendant can articulate a nonfrivolous federal defense (e.g., a government-contractor defense or other federal immunities), an issue the court reserved.

4. Complex Concepts Simplified

• “Acting under”: A private party is “acting under” a federal officer when it is helping the federal government carry out tasks—commonly by producing goods the government needs (especially in wartime/defense settings). It is more than mere regulatory compliance, and it is also more than ordinary sales of “off-the-shelf” goods.
• “For or relating to” (the “nexus” requirement): The lawsuit’s allegations must have an association or connection with what the defendant did under federal direction. After Congress added “relating to” in 2011, defendants generally do not need to prove strict causation—just a meaningful connection that is not “tenuous, remote, or peripheral.”
• “Colorable federal defense”: The defendant must assert a federal defense that is plausible and not frivolous. The court does not decide whether the defense ultimately wins at the removal stage; it only checks that the defense is not made up or insubstantial.
• Why the court parsed claims count-by-count: Under First Circuit precedent, if even one claim satisfies the “for or relating to” requirement, the entire action can be removed under § 1442(a)(1).

5. Conclusion

Czerno v. General Electric Company strengthens and clarifies federal officer removal for government contractors in the First Circuit. The court held that specialized military contracting to manufacture PCB-infused electrical components can satisfy “acting under” without a rigid “tight control” test, and that the post-2011 “for or relating to” requirement is broad enough to encompass claims alleging design/manufacture/use of PCB products—even if the government did not direct the specific disposal practices at issue.

The immediate practical consequence is jurisdictional: similar PCB and other toxic-tort cases with defense procurement facts and broad product-use allegations may increasingly remain in federal court. The ultimate merits—turning in part on any “colorable federal defense”—were left open for the district court on remand.