Background
The Town of Pine Hill sued 3M and other companies in Alabama state court for negligence, wantonness, nuisance, and trespass arising from PFAS contamination in the Alabama River, the source of the town’s drinking water. Pine Hill alleged that 3M supplied PFAS-containing products to paper mills whose wastewater entered the river, requiring the town to install improved filtration and monitoring systems.
3M removed the case under the federal officer removal statute, alleging that it had manufactured PFAS-containing aqueous film-forming foam, or AFFF, for the military under detailed federal specifications. It asserted that AFFF released at Maxwell Air Force Base plausibly contaminated groundwater flowing toward the Alabama River and commingled with PFAS from other sources. The district court remanded, reasoning that Pine Hill had disclaimed recovery for AFFF-related contamination and that its claims centered on 3M’s sales to paper mills.
The Court’s Holding
The Eleventh Circuit vacated the remand order and returned the case to the district court. The majority held that the district court should have credited 3M’s theory of the case at the removal stage and that 3M plausibly alleged all three requirements for federal officer removal.
First, the majority held that 3M qualified as a person acting under a federal officer because it continued to perform numerous federal contracts involving customized goods made to government specifications. It concluded that 3M’s discontinued production of AFFF did not defeat acting-under status. Second, the court found the required connection between Pine Hill’s claims and federal conduct because the claims concerned overall PFAS contamination of the river, while 3M plausibly alleged that military AFFF from Maxwell contributed to that contamination. Pine Hill’s disclaimers did not sever the connection because they would still require a court to determine whether contamination attributable to 3M’s federally directed conduct caused the alleged injury.
Third, 3M raised a colorable government-contractor defense by plausibly alleging that the military approved reasonably precise AFFF specifications, that 3M’s products conformed to them, and that the government knew the relevant environmental and health risks. The court decided only that removal was proper, not that 3M would ultimately prevail on its defense or on the merits.
Key Takeaways
- A removing government contractor need only plausibly allege the facts supporting federal officer jurisdiction; the court must credit its theory of the case at the removal stage.
- A plaintiff’s disclaimer of claims arising from federally directed conduct will not prevent removal if resolving causation or allocating harm would still implicate that conduct.
- The majority held that 3M’s current federal-contracting work satisfied the acting-under requirement even though the AFFF production implicated by the suit occurred in the past.
Why It Matters
The decision gives government contractors a broad route to federal court when federally directed products plausibly contributed to contamination alleged alongside private-sector sources. It also limits the effectiveness of disclaimers that exclude federal conduct in wording but leave a court to decide whether that conduct caused some portion of the claimed harm.
Judges Newsom and Kidd each concurred only in the judgment. Judge Newsom would have found the required relationship without labeling Pine Hill’s disclaimer artful pleading, because allocating causation and damages necessarily implicated 3M’s federal AFFF sales. Judge Kidd agreed that removal was proper but rejected the majority’s reliance on 3M’s current contractor status, reasoning instead that 3M acted under the Department of Defense when it produced the AFFF connected to the alleged contamination.