Voluntary Procurement Is Not Enough: Third Circuit Narrows the “Acting-Under” Doctrine for Federal-Officer Removal
(Commentary on Attorney General of New Jersey v. Dow Chemical Co., 3d Cir., 11 June 2025)

1. Introduction

The Third Circuit’s precedential decision in Attorney General of New Jersey v. Dow Chemical Co. squarely confronts a recurring procedural skirmish in environmental and products-liability litigation: corporate defendants’ attempts to shift state-law suits into federal court under the federal-officer removal statute, 28 U.S.C. § 1442(a)(1). New Jersey sued Dow, Legacy Vulcan, and Vibrantz for environmental harm allegedly caused by 1,4-dioxane, a stabilising additive Dow used in trichloroethane-based degreasing solvents (notably Chlorothene VG). Dow removed, asserting that it “acted under” the United States military when supplying inhibited TCA that met 1967 military specifications. The district court remanded; Dow appealed.

At stake was where complex statewide environmental claims would be adjudicated and, more broadly, how far private companies can stretch § 1442(a)(1)’s “acting under” language when the federal government is a mere customer rather than a commanding partner.

2. Summary of the Judgment

In a unanimous opinion by Judge Montgomery-Reeves, the Third Circuit affirmed the remand order. The Court:

Applied its familiar four-part § 1442 test but resolved the appeal on the second prong alone—whether Dow was “acting under” the Government.
Held that Dow did not act under a federal officer because:
- Dow independently invented and marketed 1,4-dioxane-stabilised TCA long before any federal specification existed;
- The military specifications adopted in 1967 were drafted largely by industry (including Dow) and imposed no operational control, coercion, or exclusive relationship;
- Dow’s sales to the Government mirrored its commercial sales; and
- No evidence showed the kind of subjection, guidance, or close federal control required by Supreme Court precedent (Watson).
Distinguished classic contractor cases (Winters, Papp) where the federal government dictated production, formula, quantities, or warnings.
Concluded that mere compliance with a government purchasing specification and receipt of federal business do not satisfy § 1442(a)(1).

3. Analysis

3.1 Precedents Cited

The panel carefully mapped the “acting-under” terrain through seven key cases:

Watson v. Philip Morris, 551 U.S. 142 (2007) – Defined “acting under” as assisting federal duties, not mere compliance with regulation.
Winters v. Diamond Shamrock, 149 F.3d 387 (5th Cir. 1998) – Agent Orange production under military coercion justified removal.
Defender Ass’n of Phila., 790 F.3d 457 (3d Cir. 2015) – Non-profit public defenders created by federal statute acted under AOUSC.
Papp v. Fore-Kast Sales/Boeing, 842 F.3d 805 (3d Cir. 2016) – Boeing’s WWII aircraft production under detailed military supervision satisfied “acting under.”
Maglioli v. Alliance HC, 16 F.4th 393 (3d Cir. 2021) – Nursing homes merely following CMS/CDC guidance did not act under federal officers.
City of Hoboken v. Chevron, 45 F.4th 699 (3d Cir. 2022) – Routine federal mineral leases lacking tight control insufficient.
Mohr v. Trustees of Univ. of Pennsylvania, 93 F.4th 100 (3d Cir. 2024) – Hospital operating patient portal for CMS incentives not acting under.

The Court synthesised these strands: true “acting-under” relationships feature delegation of government duties, close control, or coercion. Purely regulatory or commercial relationships—even if lucrative—fall short.

3.2 Legal Reasoning

Key Logical Steps:

Temporal Sequence Matters. Dow began using 1,4-dioxane in 1951; the military specs came in 1967. Originating the product outside federal direction negates an “acting-under” relationship.
Lack of Federal “Subjection, Guidance or Control.” The Government neither compelled production nor supervised formula, safety warnings, or distribution as in Winters and Papp.
Specifications vs. Contracts. Product specifications are minimum purchasing requirements, not directives to produce. Mere eligibility to bid does not deputise the supplier.
No Delegated Government Function. Supplying a cleaning solvent to federal facilities is not the kind of sovereign task Congress or the military must itself perform. Dow was “doing its own business.”
Preserving State-court Competence. Reading § 1442 broadly enough to cover ordinary government procurement would federalise vast swaths of state tort law—contrary to Watson.

3.3 Potential Impact

Procedural Strategy. Corporate defendants in the Third Circuit (and likely nationwide, given persuasive authority) cannot rely on generic federal purchasing relationships to escape state venues.
Environmental and PFAS Litigation. States suing over “forever chemicals” or other contaminants will cite this decision to block removal whenever products were originally developed for the commercial market.
Government Contractors. Truly integrated defence or space contractors retain removal rights if tight federal control exists—Dow clarifies the safe harbour without expanding it.
Federalism Balance. By limiting § 1442, the decision safeguards state authority to adjudicate state-law claims while preserving federal-court access for genuine federal functions.
Judicial Economy. Expect more preliminary fights over discovery into “control” and “coercion,” but clearer guidance should reduce frivolous removal attempts.

4. Complex Concepts Simplified

Federal-Officer Removal (§ 1442(a)(1)) – Allows a defendant “acting under” a U.S. officer to transfer a lawsuit from state to federal court, chiefly to ensure a federal forum for actions implicating federal interests or defences.
“Acting Under” – Requires more than obeying laws; the private entity must assist or perform the government’s duties under detailed direction or control.
Product Specification – A document listing technical requirements that a product must meet for federal procurement; it does not compel a company to manufacture the product.
Rule 66 (Los Angeles County, 1966) – Local air-quality rule that effectively banned trichloroethylene (TCE), prompting Dow to pivot to 1,4-dioxane-stabilised TCA.
1,4-Dioxane & TCA – 1,4-dioxane is a stabiliser added to 1,1,1-trichloroethane (TCA) to prevent acidic degradation; both chemicals are now scrutinised for carcinogenic or environmental harm.

5. Conclusion

Attorney General of New Jersey v. Dow Chemical Co. crystallises a crucial limitation on federal-officer removal: a voluntary, arms-length sale to the government—standing alone—does not transform a company into a federal actor. By anchoring its analysis in Supreme Court precedent and its own growing body of case law, the Third Circuit reinforces federalism values and clarifies for litigants the evidentiary showing required to invoke § 1442. Going forward, defendants must demonstrate genuine federal delegation, compulsion, or pervasive control—not mere compliance with specifications or receipt of federal dollars—if they hope to litigate in a federal forum.

Voluntary Procurement Is Not Enough: Third Circuit Narrows the “Acting-Under” Doctrine for Federal-Officer Removal (Commentary on Attorney General of New Jersey v. Dow Chemical Co., 3d Cir., 11 June 2025)