When the §1446(b)(3) Clock Starts: Plaintiff’s Filings—Including an MDL Transcript Filed in the Case—Can, in Combination, Make Federal Officer Removability “Easily Determinable” Even Without Site-Specific Allegations

When the §1446(b)(3) Clock Starts: Plaintiff’s Filings—Including an MDL Transcript Filed in the Case—Can, in Combination, Make Federal Officer Removability “Easily Determinable” Even Without Site-Specific Allegations

Introduction

In State of New Hampshire v. 3M Company, the First Circuit confronted two recurring and consequential removal questions arising from sprawling PFAS litigation. First, can a court of appeals review a remand order rejecting federal officer removal under 28 U.S.C. §1442 even after the case has been formally remanded to state court and the removing defendant declined to seek a stay? Second, when does the 30-day removal clock under 28 U.S.C. §1446(b)(3) begin to run in complex, multi-forum environmental litigation—especially where the plaintiff has framed separate suits (AFFF and non-AFFF), disclaimed overlap, and the removing defendant predicates federal officer jurisdiction on a commingling theory?

The State of New Hampshire filed two separate 2019 state-court actions over PFAS contamination: one limited to AFFF (the “AFFF Suit”) and one limited to non-AFFF products (the “Non‑AFFF Suit”). 3M removed the AFFF Suit under §1442 based on its manufacture of military-specification AFFF (“MilSpec AFFF”) for the U.S. military; that case was swept into the national AFFF MDL in the District of South Carolina. The Non‑AFFF Suit remained in state court until 3M, in April 2022, removed it under §1442 on the theory that PFAS from MilSpec AFFF had plausibly commingled with non‑AFFF contamination in New Hampshire’s natural resources—thus creating a nexus to federal officer activity. The district court remanded, holding both that §1442 did not apply and, independently, that the removal was untimely. 3M appealed but did not seek a stay; the case was formally returned to state court before briefing.

The First Circuit (Kayatta, J., joined by Rikelman and Howard, JJ.) affirmed on timeliness grounds and held it retained appellate jurisdiction to review the remand despite the absence of a stay and despite the case’s physical return to state court. The court assumed without deciding that §1442’s nexus could be satisfied by the commingling theory, but held the removal was untimely because plaintiff’s “other papers” filed in the Non‑AFFF Suit—specifically a 2019 memorandum and a 2020 MDL transcript—when read in combination with earlier pleadings, made removability “easily determinable” more than two years before 3M removed.

Summary of the Opinion

  • Appellate jurisdiction preserved despite formal remand and no stay. The court rejected New Hampshire’s threshold argument that the absence of a stay and the formal remand stripped the First Circuit of jurisdiction or that 3M waived appeal. Section 1447(d) expressly allows appellate review of remand orders rejecting §1442 removal. The panel relied on its prior guidance that, while there is “no formal procedural mechanism” to retrieve a case after remand, comity and inter-court cooperation suffice; failure to seek a stay does not amount to a “clear and unequivocal” waiver of appellate rights.
  • Timeliness under §1446(b)(3): “other papers” in combination triggered the 30-day clock years earlier. Applying Romulus v. CVS Pharmacy, Inc., the panel held that the 30-day clock starts when plaintiff provides a pleading, motion, order, or “other paper” that, alone or together with earlier filings, gives specific and unambiguous notice that the case is removable. Here, New Hampshire’s November 2019 memorandum (stressing statewide non‑AFFF contamination and pointing to the separate AFFF suit) and a February 21, 2020 transcript filed in the Non‑AFFF Suit from the South Carolina AFFF MDL (showing 3M’s MilSpec AFFF production under U.S. military specifications) together made clear that the statewide natural resources at issue plausibly included areas affected by both non‑AFFF PFAS and MilSpec AFFF PFAS. Assuming arguendo that such commingling would satisfy §1442’s “relating to” nexus, 3M had to remove by March 23, 2020 (the first business day after the 30th day). Its April 29, 2022 removal was therefore untimely.
  • Federal officer nexus not decided. Because untimeliness was dispositive, the court did not finally decide whether §1442(a)(1) would have permitted removal on 3M’s commingling theory. It assumed the nexus arguendo only to resolve the timing question.

Analysis

Precedents Cited and Their Role

  • Forty Six Hundred LLC v. Cadence Education, LLC, 15 F.4th 70 (1st Cir. 2021). The court relied on Forty Six Hundred to explain two points: (a) district courts lack power to revisit §1447(d)-barred remand orders after certification to state court, but that limitation does not apply to orders expressly reviewable under §1447(d), such as §1442 remands; and (b) even without a “formal procedural mechanism” to retrieve a case post‑remand, appellate review remains available, and comity allows federal courts to restore cases if necessary. The panel also cited Forty Six Hundred’s recognition that waiver/estoppel could apply, but only with a “clear and unequivocal” relinquishment—absent here.
  • 28 U.S.C. §1447(d). This provision bars appellate review of most remand orders but carves out express exceptions, including orders rejecting removal under §1442(a)(1). The panel relied on this exception to assert jurisdiction despite the certified remand.
  • Hammer v. HHS, 905 F.3d 517, 525 (7th Cir. 2018). Cited for the consensus view that, in cases exempt from §1447(d)’s bar, the certification of the remand order creates no independent jurisdictional barrier for review by either the court of appeals or the district court.
  • Northrop Grumman Tech. Servs., Inc. v. DynCorp Int’l LLC, 865 F.3d 181, 186 (4th Cir. 2017); Rock Hemp Corp. v. Dunn, 51 F.4th 693, 701 (7th Cir. 2022); PR Grp., LLC v. Windmill Int’l, Ltd., 792 F.3d 1025, 1026 (8th Cir. 2015). These cases establish that waiver of the right to remove (or to a federal forum) requires a “clear and unequivocal” showing. The First Circuit imported that standard to reject New Hampshire’s waiver argument based on 3M’s failure to seek a stay.
  • United States v. Sastrom, 96 F.4th 33, 40 (1st Cir. 2024). Cited for the general notion that waiver can occur where a party fails to challenge an order, but distinguished here because 3M timely appealed and did not clearly abandon its right to review.
  • Romulus v. CVS Pharmacy, Inc., 770 F.3d 67 (1st Cir. 2014). The controlling First Circuit framework for §1446(b)(3): the 30-day clock starts upon receipt of plaintiff’s “other paper” that allows the defendant to “easily determine” removability; defendants must read the paper “on its face or in combination with earlier-filed pleadings” using “a reasonable amount of intelligence” but need not conduct “significant investigation.” The panel applied Romulus to hold that New Hampshire’s filings in this very case triggered the clock in 2020.
  • Walker v. Trailer Transit, Inc., 727 F.3d 819, 825 (7th Cir. 2013). Quoted by Romulus and relied on by the panel for the “combination” principle: “other paper” can be read together with earlier pleadings to provide specific, unambiguous notice of removability.
  • Amoche v. Guarantee Tr. Life Ins. Co., 556 F.3d 41, 48 (1st Cir. 2009). Cited for de novo review of remand rulings where appropriate.
  • Young v. Wells Fargo Bank, N.A., 717 F.3d 224, 237 n.11 (1st Cir. 2013). Supports the proposition that the court may affirm on any ground supported by the record, even if the district court did not rely on it.
  • Maryland v. 3M Co., Nos. 24‑1218, 24‑1270, 2025 WL 727831 (4th Cir. Mar. 7, 2025). Cited for the practical point that, where PFAS from different sources are alleged, a factfinder may need to determine whether contamination came from MilSpec AFFF or non‑AFFF products. The First Circuit used this to illustrate why commingling allegations matter for removability under the nexus theory.
  • In re Aqueous Film‑Forming Foams Prods. Liab. Litig., 357 F. Supp. 3d 1391 (J.P.M.L. 2018). Background on the AFFF MDL to which the AFFF Suit was transferred.
  • United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). Applied to deem waived a new, later‑developed argument 3M tried to introduce on appeal—an assertion that the two suits had no overlapping sites based on a much later 2022 statement.

Legal Reasoning

1) Appellate Jurisdiction After Formal Remand; No Waiver from Not Seeking a Stay

The panel began by rejecting New Hampshire’s contention that the case’s “enforced exile” to state court—after the district court declined to stay and certified the remand—deprived the First Circuit of jurisdiction. Section 1447(d) specifically authorizes appellate review of remand orders rejecting removal under §1442(a)(1). In Forty Six Hundred, the First Circuit already acknowledged the absence of a “formal procedural mechanism” to retrieve a case once remanded, but nonetheless confirmed appellate jurisdiction and explained that comity and cooperation between courts suffice to restore a case if the remand was erroneous.

New Hampshire’s waiver argument also failed. The court emphasized that waiver of removal or a federal forum requires a “clear and unequivocal” relinquishment. Not seeking a stay may be unwise, but it is not an unambiguous abandonment of appellate rights, especially where the defendant promptly filed a notice of appeal. Thus, the court proceeded to the merits.

2) Timeliness: What “Other Papers” Trigger §1446(b)(3)’s 30-Day Clock?

The First Circuit applied Romulus’s “easily determinable” and “combination” standards. The operative complaint in the Non‑AFFF Suit did not itself make removability obvious; it disclaimed AFFF-related damages and did not expressly allege commingling. The question, then, was whether later “other papers,” read together with earlier filings, gave 3M “specific and unambiguous notice” that the case satisfied §1442’s nexus (accepting 3M’s commingling theory arguendo) more than 30 days before the April 29, 2022 removal.

The panel identified two critical “other papers,” both filed by New Hampshire in this very case:

  • November 21, 2019 Memorandum in support of an omnibus objection to motions to dismiss: New Hampshire explicitly characterized the Non‑AFFF Suit as “one for statewide contamination,” “pervasive across the natural resources of the State,” and flagged that AFFF contamination was the subject of a separate suit filed the same day, removed to federal court, and transferred to the South Carolina MDL.
  • February 21, 2020 MDL transcript filed as an exhibit in the Non‑AFFF Suit: The transcript reflected discussions in the MDL about discovery into what 3M told the federal government and what the government independently knew about the dangers of MilSpec AFFF, and explained that MilSpec refers to military specifications administered by the Naval Sea Systems Command.

Read together with the complaint’s emphasis on “widespread contamination” throughout New Hampshire, these filings did two things. First, they made clear that the Non‑AFFF Suit sought damages for statewide PFAS contamination in the state’s natural resources. Second, they made clear that some of those same statewide resources had been contaminated with MilSpec AFFF PFAS attributable to 3M and subject to federal specifications. A defendant exercising a “reasonable amount of intelligence” would recognize that a factfinder would have to decide, for at least some natural resources, “whether and to what extent” PFAS came from MilSpec AFFF versus non‑AFFF products.

Assuming that such commingling satisfies §1442’s “for or relating to” nexus—as 3M argued—the removability of the Non‑AFFF Suit was therefore “easily determinable” once the MDL transcript was filed on February 21, 2020. The 30-day removal period under §1446(b)(3) expired on March 23, 2020 (the first business day after the thirtieth day). 3M’s April 29, 2022 removal was untimely.

The court expressly declined to decide whether other items identified by the district court (the AFFF complaint from a different case; 3M’s AFFF notice of removal; New Hampshire’s December 2021 initial disclosures) independently triggered the clock. It was enough that the 2019 memorandum and the 2020 transcript—both filed in the Non‑AFFF Suit’s own record—did so years earlier.

The panel also rejected two defense positions:

  • No need for site-specific identification. The court held that “the alleged presence of any commingling” is sufficient to require a court to determine whether, and to what extent, MilSpec AFFF produced by 3M caused a portion of the contamination at issue. Thus, removability does not await the plaintiff’s identification of specific cross-contaminated sites.
  • No retroactive undoing of removability by later statements. 3M’s reliance on a June 2022 statement that the two suits did not involve overlapping sites was waived because it was not presented to the district court and, in any event, came long after the case had already become removable.

Impact

The decision delivers two important, practice-shaping messages in federal officer removal jurisprudence and multi-forum environmental litigation:

  • Appellate review survives formal remand in §1442 cases. In the First Circuit, a formal remand to state court does not extinguish a removing defendant’s right to appeal the rejection of §1442 removal. Nor does the failure to seek a stay, by itself, waive the right to appellate review. Counsel should still consider seeking a stay to avoid logistical complications, but jurisdictional review remains available.
  • The §1446(b)(3) clock can be triggered early and by combination. Defendants must vigilantly monitor every plaintiff filing in the very case they seek to remove. Under Romulus, courts will read “other papers” in combination with earlier pleadings; here, a plaintiff’s litigation memorandum and an MDL transcript filed as an exhibit sufficed. A plaintiff’s site-by-site list is not required to start the clock when the theory of removability hinges on statewide commingling and nexus to federal activity.
  • Filing MDL materials in the state case matters. The First Circuit recognized an MDL transcript as “other paper” because the plaintiff filed it in the Non‑AFFF Suit. That filing connected the dots between statewide resources at issue and MilSpec AFFF produced under federal specifications—triggering the removal clock.
  • Disclaimers of AFFF damages do not stop the clock if commingling is evident. New Hampshire’s pleadings disclaimed AFFF-related damages in the Non‑AFFF Suit. Yet the removability clock still ran once plaintiff’s filings showed that adjudication would require allocation between MilSpec AFFF and non‑AFFF sources for statewide resources. Defendants relying on a commingling-based nexus cannot wait for more granular proof.
  • PFAS litigation strategy. For state plaintiffs, this ruling may fortify remand and timeliness arguments against later federal officer removals, especially where statewide relief is sought and AFFF contamination is contemporaneously litigated in an MDL. For defendants, it counsels earlier removal based on the aggregate picture conveyed by plaintiff’s filings, not just formal allegations or site lists.
  • Signals, but does not resolve, the nexus question. The panel assumed, without deciding, that commingling of MilSpec AFFF PFAS with non‑AFFF PFAS can satisfy §1442’s “relating to” requirement. Other courts (e.g., the Fourth Circuit in Maryland v. 3M Co.) are wrestling with the same issue. Future First Circuit cases may squarely address the nexus standard in PFAS commingling scenarios; this case warns that timeliness may be the decisive gatekeeper.

Complex Concepts Simplified

  • Federal officer removal (§1442(a)(1)). This allows a defendant to remove to federal court when sued “for or relating to” acts under color of federal office—commonly when a private contractor “acts under” federal direction. The “nexus” requirement asks whether the claims have a connection or association with the defendant’s federally directed conduct.
  • The 30-day removal clock (§1446(b)(3)). If the initial pleading does not make removability apparent, the 30-day clock starts when the defendant receives an “amended pleading, motion, order, or other paper” from the plaintiff that makes removability “easily determinable.” Courts read such papers together with prior filings; defendants must apply a “reasonable amount of intelligence,” not conduct new investigations.
  • “Other paper.” A broad category that includes items like discovery responses, briefs, and exhibits filed by the plaintiff in the same case. Here, an MDL hearing transcript filed as an exhibit in the state case qualified.
  • AFFF vs. non‑AFFF PFAS and “MilSpec.” Aqueous film‑forming foam (AFFF) is a firefighting foam historically used by the military, often containing PFAS. “MilSpec” signifies that the product was made to military specifications under federal oversight, a key fact for federal officer removal.
  • Commingling. When contaminants from different sources (e.g., MilSpec AFFF PFAS and non‑AFFF PFAS) mix in the same natural resource, adjudication requires allocation or causation analysis to determine relative contributions—a fact the court treated as central to 3M’s removability theory.
  • MDL and comity. An MDL centralizes pretrial proceedings for similar cases in federal court. “Comity” refers to the cooperative respect between state and federal courts, which allows a federal court to retrieve a case remanded in error, even absent a formal mechanism, when appellate review permits it.

Conclusion

State of New Hampshire v. 3M Company delivers a clear, two‑part message. First, appellate review of remand orders that reject §1442 removal remains available in the First Circuit even after formal remand and without a stay; failure to seek a stay does not, without more, waive appellate rights. Second, and most consequential for removal practice, the §1446(b)(3) clock can be triggered by a combination of plaintiff’s filings in the same case—here, a litigation memorandum highlighting statewide contamination and a filed MDL transcript showing MilSpec AFFF production under federal specifications—without any need for site‑specific overlap to be pleaded.

By affirming on untimeliness grounds and assuming without deciding the §1442 nexus under a commingling theory, the First Circuit placed a premium on vigilance: removing defendants must read plaintiff’s filings holistically and move within 30 days once removability is “easily determinable.” For parties engaged in PFAS and other complex, multi‑forum litigation, the decision is a potent reminder that timing can be dispositive—and that what plaintiffs choose to file into the record may start a removal clock long before anyone expects it.

Case Details

Year: 2025
Court: Court of Appeals for the First Circuit

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