The Fourth Circuit’s reasoning aligns with the reasoning applied by the Seventh Circuit in Illinois v. 3M, albeit reaching a different conclusion.
In the consolidated appeals in State of Maryland v. 3M Company, et al., No. 24-1218 (4th Cir. Mar. 7, 2025) and State of South Carolina v. 3M Company, et al., No. 24-1270 (4th Cir. Mar. 7, 2025), the Fourth Circuit held that 3M has satisfied the third prong of the federal officer removal statute because the recovery sought by the plaintiffs will require a fact finder to determine important questions of causation and allocation that relate to 3M’s alleged federal conduct. The court, therefore, remanded the matters back to the district courts to determine whether 3M has satisfied the other elements of the federal officer removal statute.
Per- and polyfluoroalkyl substances (PFAS) have been used in a wide variety of consumer and industrial products, including aqueous film-forming foam (AFFF), which is a widely used firefighting foam. 3M sold AFFF to the United States military for “use on military bases, airfields and naval vessels to fight fuel fires,” which the court dubbed “military AFFF.” The manufacture and sale of that military AFFF was governed by “rigorous specifications administered by the Department of Defense” that “required the use of certain PFAS in AFFF.”
In 2023, Maryland and South Carolina sued 3M and other manufacturers seeking to recover for harm caused by releases of PFAS to the environment. Each state actually filed two lawsuits—one lawsuit seeking recovery for contamination related to AFFF and another lawsuit seeking recovery for contamination related to non-AFFF products.
3M removed all the cases, including the non-AFFF cases, to federal court under the federal officer removal statute at 28 U.S.C. § 1442(a)(1). Pursuant to that statute, a defendant may remove a case to federal court if it plausibly alleges “(1) that it acted under a federal officer, (2) that it has a colorable federal defense, and (3) that the charged conduct was carried out for or in relation to the asserted official authority.” Plaintiffs challenged the removal of the non-AFFF cases arguing that, in those cases, the third requirement of removal had not been met. According to plaintiffs, the “charged conduct” in the non-AFFF cases is limited to non-AFFF products; therefore, the conduct does not implicate 3M’s alleged federal actions relating to the manufacture of military AFFF. The district courts agreed, finding that because 3M could not be held liable for any alleged conduct being carried out under federal authority in the non-AFFF cases, the third prong was not satisfied.
On appeal, the Fourth Circuit disagreed. According to the majority decision, the third prong is satisfied with respect to the non-AFFF claims because 3M has alleged that “the PFAS from 3M’s non-AFFF products [is] indistinguishably commingled with the PFAS from 3M’s Military AFFF.” This means the fact finder will be required to determine difficult factual questions of causation and apportionment between military AFFF and non-AFFF contamination. According to the court, “The need to unravel such challenging questions in this case establishes that 3M’s federal work is inextricably related to the charged conduct.” Therefore, the court vacated the district courts’ orders and remanded that matter back to the respective district courts to consider whether the first two elements of federal officer removal had been met.
This ruling is good news for 3M. If the non-AFFF claims are allowed to remain in federal court, 3M can assert the federal contractor defense with respect to any commingled contamination.
The Fourth Circuit’s reasoning aligns with the reasoning applied by the Seventh Circuit in Illinois v. 3M, No. 23-3031 (Aug. 7, 2024), albeit reaching a different conclusion. In Illinois, the court rejected 3M’s removal attempt because “the State clearly and unequivocally conceded at oral argument that it would not seek relief against 3M for mixed PFAS contamination—in other words, PFAS contamination arising from both [non-AFFF] and from [military AFFF].” Because of this concession, 3M would not be able to raise the federal contractor defense and federal interests would not be implicated. Thus, 3M’s attempt to remove the case under the federal officer removal statute failed.
The Fourth Circuit’s decision also highlights the breadth and deference given to removal under the federal officer removal statute. Unlike other removal statutes, federal officer removal is broadly interpreted and the traditional presumptions against removal do not apply. Section 1442(a)(1) ensures that a federal forum is available when litigation implicates a cognizable federal interest. And, according to the court, “Where the parties dispute difficult factual questions about that federal interest, a contractor acting at the government’s direction ‘should have the opportunity to present their version of the facts to a federal, not a state, court.’”
Duane Morris will continue to monitor these developments in federal officer removal, as well as the assertion of the federal contractor defense as it applies to contamination caused by AFFF and areas of commingled contamination.
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