4:22-cv-04075-SLD-JEH # 1 Page 1 of 21
`E-FILED
` Thursday, 21 April, 2022 06:08:02 PM
` Clerk, U.S. District Court, ILCD
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE CENTRAL DISTRICT OF ILLINOIS
`ROCK ISLAND DIVISION
`
`PEOPLE OF THE STATE OF ILLINOIS, ex
`rel. KWAME RAOUL, Attorney General of
`the State of Illinois,
`
`Plaintiff,
`
`v.
`
`3M Company, a Delaware Corporation,
`
`Defendant.
`
`CASE NO. 22-cv-4075
`
`NOTICE OF REMOVAL
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`Defendant 3M Company (“3M”), by undersigned counsel, hereby gives notice of removal
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`of this action, pursuant to 28 U.S.C. §§ 1441, 1442(a)(1) and 1446, from the State of Illinois Circuit
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`Court of the Fourteenth Judicial Circuit, Rock Island County, to the United States District Court
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`for the Central District of Illinois. 3M is entitled to remove this action under the federal officer
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`removal statute, 28 U.S.C. § 1442(a)(1). As further grounds for removal, 3M states as follows.
`
`PRELIMINARY STATEMENT
`
`1.
`
`The State of Illinois (“State”) brought this action seeking to hold 3M liable for its
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`alleged conduct in manufacturing and discharging per- and polyfluoroalkyl substances (“PFAS”),
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`including perfluorooctane sulfonate (“PFOS”) and perfluoro-octanoic acid (“PFOA”), from a 3M
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`manufacturing facility in Cordova, Illinois (“Cordova Facility”) located on the banks of the
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`Mississippi River. 3M’s manufacture and discharge of PFAS at the Cordova Facility purportedly
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`has resulted in alleged contamination of the State’s environment and natural resources. See Ex. A,
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`Summons and Complaint, at Complaint p. 1. The State seeks to recover for all damages to the
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`State’s environment and natural resources caused by the release of PFAS from 3M’s Cordova
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`Facility (see id.), including for alleged contamination of the Mississippi River (see id. ¶¶ 105, 191).
`
`2.
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`But PFAS releases elsewhere on the Mississippi River, including releases of PFOS
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`and PFOA, likely resulted from the use, storage, and/or disposal of PFAS-containing aqueous film-
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`forming foams (“AFFF”) that 3M developed for sale to the U.S. military in accordance with
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`rigorous military specifications (“MilSpec”). Use of MilSpec AFFF at the Rock Island Arsenal—
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`located 25 miles downstream from the Cordova Facility—plausibly contributed to the alleged
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`harm to the State’s environment and natural resources from PFAS. See Ex. B, Draft Final V1A
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`Preliminary Assessment and Site Inspection of Per- and Polyfluoroalkyl Substances, Rock Island
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`Arsenal, Illinois, prepared for the U.S. Army Corps of Engineers (Feb. 2021) (“RIA PA/SI”).1
`
`3.
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`Because this action seeks damages for all Illinois natural resources allegedly
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`contaminated with PFAS from the Cordova Facility—including downstream areas of the
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`Mississippi River—the alleged contamination for which the State is seeking damages plausibly
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`may encompass and overlap with PFAS contamination from the use, storage, and discharge of
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`MilSpec AFFF at the Rock Island Arsenal. To the extent that the State’s alleged damages arise
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`from MilSpec AFFF, 3M intends to assert the federal government contractor defense in this action.
`
`Although the Complaint purports to allege that “PFAS, as defined in this Complaint, do not include
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`any PFAS that have contaminated Illinois’ environment or natural resources from aqueous film-
`
`forming foams (‘AFFF’)” (Ex. A, Complaint ¶ 11), this allegation cannot prevent 3M “from raising
`
`the production of MilSpec AFFF as a defense or an alternate theory” of causation. Nessel v.
`
`Chemguard, Inc., No. 1:20-cv-1080, 2021 WL 744683, at *3 (W.D. Mich. Jan. 6, 2021).
`
`1
`Exhibit B was produced by the United States in the In re Aqueous Film-Forming Foams
`(“AFFF”) Products Liability Litigation, MDL No, 2873, pending in the U.S. District Court for
`the District of South Carolina.
`
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`4.
`
`Under the federal officer removal statute, 3M is entitled to remove this action to
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`have its federal defense adjudicated in a federal forum, as multiple courts have held in other PFAS
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`cases including cases filed by other state attorney-generals. See Nessel, 2021 WL 744683, at *4
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`(denying State of Michigan’s motion to remand); In re Aqueous Film-Forming Foams Prods. Liab.
`
`Litig. (“In re AFFF”), No. 2:18-mn-2873, 2019 WL 2807266, at *2 (D.S.C. May 24, 2019)
`
`(denying State of New York’s motion to remand). Such removal “fulfills the federal officer
`
`removal statute’s purpose of protecting persons who, through contractual relationships with the
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`Government, perform jobs that the Government otherwise would have performed.” Isaacson v.
`
`Dow Chem. Co., 517 F.3d 129, 133 (2d Cir. 2008); see Ruppel v. CBS Corp., 701 F.3d 1176, 1181
`
`(7th Cir. 2012) (federal officer removal “covers situations . . . where the federal government uses
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`a private corporation to achieve an end it would have otherwise used its own agents to complete”).
`
`THE STATE’S SUMMONS AND COMPLAINT
`
`5.
`
`The State filed this action on March 16, 2022, in the State of Illinois Circuit Court
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`of the Fourteenth Judicial Circuit, Rock Island County, bearing Case No. 2022LA16. See Ex. A,
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`Summons and Complaint. 3M was served with the Summons and Complaint on March 22, 2022.
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`See id. at Notice of Service of Process.
`
`6.
`
`The Complaint pleads that the State has brought this action to hold 3M liable “for
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`its operation of . . . its Cordova Facility in Rock Island County, Illinois” and “its discharge . . . of
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`[PFAS] from the Cordova Facility.” Ex. A, Complaint p. 1.
`
`7.
`
`The State alleges that 3M has owned and operated the Cordova Facility (located on
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`the banks of the Mississippi River) since the 1970s, and that 3M manufactured and disposed of
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`PFAS and PFAS-containing products from the Cordova Facility, allegedly resulting in PFAS
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`contamination of the State’s environment and natural resources “at and around” the facility. Id.
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`¶ 105; see id. ¶¶ 34-48, 74. The Complaint specifically alleges that 3M has discharged PFAS from
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`the Cordova Facility into the Mississippi River (id. ¶¶ 105, 107-108, 129-136), and that PFAS has
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`migrated into the environment from the Cordova Facility (id. ¶¶ 143, 178), causing contamination
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`of the State’s groundwater, surface waters, wetlands, and wildlife (id. ¶¶ 145-180), including the
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`Mississippi River (e.g., id. ¶ 129-136, 190-192).
`
`8.
`
`Among other forms of relief, the State seeks “monetary damages for the cost of
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`identifying, monitoring, and remediating contamination caused by the release of PFAS from 3M’s
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`Cordova Facility and all damages to the State’s environment and its natural resources because of
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`the resulting contamination.” Id. at p. 1. That encompasses purported damages for all alleged
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`contamination “at and around” the Cordova Facility (e.g., id. ¶ 248, 259), such as downstream
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`harms caused by PFAS from the Cordova Facility, including damages to “groundwater, surface
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`waters, wetlands, drinking water supplies, biota, wildlife, aquatic life, and their associated soils,
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`sediments, and uses, and other State natural resources and property” (id. at p. 61).
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`9.
`
`Based on allegations concerning 3M’s manufacture and discharge of PFAS
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`chemicals in the State of Illinois, the State asserts claims against 3M for multiple counts of
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`violations of the Illinois Environmental Protection Act, 415 ILCS 5/1, et seq. (id. ¶¶ 181-232), for
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`restoration under the Fish and Aquatic Life Code, 515 ILCS 5/5-5, and the Wildlife Code, 520
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`ILCS 5/1-10 (id. ¶¶ 233-244), and for negligence (id. ¶¶ 245-248), trespass (id. ¶¶ 249-259), public
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`nuisance (id. ¶¶ 260-264), and unjust enrichment (id. ¶¶ 265-276).
`
`THE PROCEDURAL REQUIREMENTS FOR REMOVAL
`UNDER 28 U.S.C. §§ 1441 AND 1446 ARE MET
`
`10.
`
`Venue is proper in this Court pursuant to 28 U.S.C. §§ 93(b) and 1441(a) because
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`the State of Illinois Circuit Court of the Fourteenth Judicial Circuit, Rock Island County, is located
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`within the Central District of Illinois.
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`11.
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`Pursuant to 28 U.S.C. § 1446(a), true and correct copies of the Summons and
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`Complaint are attached hereto as Exhibit A.
`
`12.
`
`This Notice of Removal is being filed within 30 days of service of the Complaint
`
`on 3M. Pursuant to 28 U.S.C. § 1446(b), this Notice of Removal is timely filed.
`
`13.
`
`Pursuant to 28 U.S.C. § 1446(d), a copy of this Notice of Removal is being served
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`upon counsel for the State, and a copy is being filed with the Clerk of the State of Illinois Circuit
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`Court of the Fourteenth Judicial Circuit, Rock Island County.
`
`14.
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`By filing a Notice of Removal in this matter, 3M does not waive, and reserves, its
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`right to assert any defenses and/or objections to which it may be entitled.
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`15.
`
`16.
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`3M reserves the right to amend or supplement this Notice of Removal.
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`If any question arises as to the propriety of the removal of this action, 3M requests
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`the opportunity to present a brief and oral argument in support of removal.
`
`REMOVAL IS PROPER UNDER THE FEDERAL
`OFFICER REMOVAL STATUTE, 28 U.S.C. § 1442(a)(1)
`
`17.
`
`Removal here is proper under 28 U.S.C. § 1442(a)(1), which provides for removal
`
`when a defendant is sued for acts undertaken at the direction of a federal officer. Removal is
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`appropriate under this provision where the removing defendant establishes that it is a “(1) ‘person’
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`(2) ‘acting under’ the United States, its agencies, or its officers (3) that has been sued ‘for or
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`relating to any act under color of such office,’ and (4) has a colorable federal defense to the
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`plaintiff’s claim.” Ruppel, 701 F.3d at 1180-1181 (quoting 28 U.S.C. § 1442(a)); accord Mesa v.
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`California, 489 U.S. 121, 124-25, 129-31, 133-35 (1989); Baker v. Atlantic Richfield Co., 962 F.3d
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`937, 941 (7th Cir. 2020); Betzner v. Boeing Co., 910 F.3d 1010, 1015 (7th Cir. 2018); Cuomo v.
`
`Crane Co., 771 F.3d 113, 115 (2d Cir. 2014); Bennett v. MIS Corp., 607 F.3d 1076, 1085 (6th Cir.
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`2010); Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1251 (9th Cir. 2006).
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`4:22-cv-04075-SLD-JEH # 1 Page 6 of 21
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`18.
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`Removal rights under the federal officer removal statute, 28 U.S.C. § 1442, are
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`much broader than under the general removal statute, 28 U.S.C. § 1441. Suits against defendants
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`acting on behalf of federal officers “may be removed despite the nonfederal cast of the complaint;
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`the federal-question element is met if the defense depends on federal law.” Jefferson Cty. v. Acker,
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`527 U.S. 423, 431 (1999). This is because the “basic purpose of § 1442(a)(1) is to ensure a federal
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`forum for defenses of official immunity by federal officers.” Harris v. Rapid Am. Corp., 532 F.
`
`Supp. 2d 1001, 1004 (N.D. Ill. 2007). This important federal policy “should not be frustrated by a
`
`narrow, grudging interpretation of [§] 1442(a)(1).” Willingham v. Morgan, 395 U.S. 402, 407
`
`(1969). To the contrary, 28 U.S.C. § 1442 as a whole must be “liberally construed” in favor of
`
`removal. Hammer v. U.S. Dep’t of Health & Hum. Servs., 905 F.3d 517, 527 (7th Cir. 2018)
`
`(quoting Watson v. Philip Morris Co., Inc., 551 U.S. 142, 147 (2007)); see also, e.g., Ayotte v.
`
`Boeing Co., 316 F. Supp. 3d 1066, 1072-1073 (N.D. Ill. 2018).
`
`19.
`
`As set forth below, all requirements for removal under § 1442(a)(1) are satisfied
`
`here. In many similar cases, including multiple cases filed by the New York Attorney General in
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`the In re AFFF MDL pending before Judge Richard Gergel in the District of South Carolina, courts
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`have ruled that removal under § 1442 was proper because the alleged contamination derived in
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`part from MilSpec AFFF. See, e.g., In re AFFF, 2019 WL 2807266, at *2 (denying State of New
`
`York motion to remand); Order 3-5, In re AFFF, No. 2:18-mn-2873, ECF No. 320 (D.S.C. Sept.
`
`27, 2019) (same); see also Ayo v. 3M Co., 2018 WL 4781145, at *7-15 (E.D.N.Y. Sept. 30, 2018)
`
`(denying plaintiffs’ motion to remand and finding that federal officer removal was proper in case
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`against 3M and other AFFF manufacturers).
`
`A.
`
`MilSpec AFFF
`
`20.
`
`Since the late 1960s/early 1970s, the United States military began using AFFF that
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`meets military specifications (“MilSpec AFFF”) on military bases, airfields, and Navy ships—
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`4:22-cv-04075-SLD-JEH # 1 Page 7 of 21
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`settings where fuel fires are inevitable and potentially devastating—to train its personnel, put out
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`fires, save lives, and protect property. Indeed, the U.S. Naval Research Laboratory developed
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`AFFF (with some assistance from industry participants), and its researchers were granted the first
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`AFFF patent in 1966.2 Decades later, the Naval Research Laboratory described the development
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`of AFFF as “one of the most far-reaching benefits to worldwide aviation safety.”3
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`21.
`
`The manufacture and sale of MilSpec AFFF is governed by rigorous military
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`specifications created and administered by Naval Sea Systems Command. The applicable
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`specification, Mil-F-24385, was first promulgated in 1969, and has been revised a number of times
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`since then.4 All MilSpec AFFF products must be qualified for listing on the applicable Qualified
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`Products List prior to military procurement. Prior to such listing, a manufacturer’s products are
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`examined, tested, and approved to be in conformance with specification requirements.5 The
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`MilSpec designates Naval Sea Systems Command as the agency responsible for applying these
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`criteria and determining whether AFFF products satisfy the MilSpec’s requirements. After a
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`product is added to the Qualified Products List, “[c]riteria for retention of qualification are applied
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`on a periodic basis to ensure continued integrity of the qualification status.”6 Naval Sea Systems
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`Command reserves the right to perform any of the quality assurance inspections set forth in the
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`2
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`U.S. Patent No. 3,258,423 (filed Sept. 4, 1963; published June 28, 1966).
`3
`U.S. Navy, NRL/MR/1001-06-8951, The U.S. Naval Research Laboratory (1923–2005):
`Fulfilling the Roosevelts’ Vision for American Naval Power 37 (2006) (“Fulfilling the Roosevelts’
`Vision”), http://bit.ly/2mujJds.
`4
`The 1969 MilSpec and all its revisions and amendments through the April 2020 amendment
`(MIL-PRF-24385F(4)) are available at https://tinyurl.com/yxwotjpg.
`5
`Dep’t of Defense SD-6, Provisions Governing Qualification 1
`https://tinyurl.com/y5asm5bw.
`6
`Dep’t of Defense SD-6, at 1.
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`(Feb. 2014),
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`specification where such inspections are deemed necessary to ensure supplies and services
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`conform to prescribed requirements.
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`22.
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`From its inception until very recently, the MilSpec included the express
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`requirement that MilSpec AFFF contain “fluorocarbon surfactants”—the class of PFAS chemicals
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`that includes PFOA and PFOS.7 And although in 2019 the MilSpec removed the modifier
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`“fluorocarbon” from “surfactants,” it expressly states that “the DoD intends to acquire and use
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`AFFF with the lowest demonstrable concentrations of . . . PFOS and PFOA” “[i]n the short term.”8
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`PFOA or PFOS are unavoidably present at some concentrations in some fluorocarbon surfactants
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`used in MilSpec AFFF, and the current MilSpec expressly contemplates that AFFF formulations
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`will contain PFOA and PFOS (subject to recently imposed limits).
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`23.
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`3M manufactured and sold MilSpec AFFF to the U.S. military for over three
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`decades. One or more AFFF products manufactured by 3M were on the Navy’s Qualified Products
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`List for MilSpec AFFF from 1970 until 2010.
`
`B.
`
`The Alleged Contamination Plausibly Derives In Part From MilSpec AFFF
`
`24.
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`The State brought this case seeking to recover for all damages to the State’s
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`environment and natural resources from PFAS contamination due to alleged releases from 3M’s
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`Cordova Facility, including releases into the Mississippi River. Although the Complaint purports
`
`to disclaim any recovery for PFAS contamination caused by AFFF (see Ex. A, Complaint ¶ 11),
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`an environmental assessment of at least one military facility on the Mississippi River—the Rock
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`Island Arsenal—demonstrates that the alleged contamination for which the State seeks to recover
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`in this case encompasses PFAS contamination attributable in part to MilSpec AFFF. Despite the
`
`7
`
`8
`
`See Mil-F-24385 § 3.2 (1969); MIL-PRF-24385F(2) § 3.2 (2017).
`See MIL-PRF-24385F(3) §§ 3.2, 6.6 (2019).
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`4:22-cv-04075-SLD-JEH # 1 Page 9 of 21
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`State’s disclaimer, 3M is entitled to a federal forum in order to “rais[e] the production of MilSpec
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`AFFF as a defense or an alternate theory” of causation. Nessel, 2021 WL 744683, at *3.
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`25.
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`The Rock Island Arsenal is a U.S. military facility located on the banks of the
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`Mississippi River approximately 25 miles downriver from 3M’s Cordova facility.
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`26.
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`The U.S. Army prepared a Preliminary Assessment and Site Inspection of the Rock
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`Island Arsenal pursuant to CERCLA (Comprehensive Environmental Response, Compensation,
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`and Liability Act) to investigate PFAS contamination at that facility, including contamination from
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`PFOS and PFOA. See Ex. B, RIA PA/SI at -1717. A report containing the results of the preliminary
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`assessment and site inspection was completed in February 2021, and is attached as Exhibit B.
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`27.
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`The Army report identified multiple areas of potential interest (“AOPIs”) where the
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`use, storage, or disposal of PFAS-containing materials had occurred, and determined that elevated
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`levels of PFOS and PFOA existed in the groundwater at many of those areas. Id. at -1717 to -1720.
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`Those included AFFF storage warehouses and fire training areas. Id. at -1717 to -1718; see also
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`id. at -1733 to 1735 (identifying “Fire-Related Area[s]” were AFFF was used or stored).
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`28.
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`The Army report explains that “AFFF-use and storage was identified at nine areas”
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`of potential interest, including firefighting training areas and AFFF storage areas where AFFF is
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`currently stored. Id. at -1736 to -1737. The report also identified an additional site, an “Old
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`Landfill,” where burn pits “indicate[d] the use of AFFF during fire training exercises.” Id. at -1737.
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`In addition, the report confirmed the use of AFFF during “two occurrences of the RIA Fire
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`Department responding to offsite fires.” Id. at -1738.
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`29.
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`The Army report also describes historical evidence that “firefighting foam
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`operations [were] conducted in the Mississippi River” and that the “foam [was] released into the
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`Mississippi River during training exercises.” Id. at -1717; see also, e.g., id. at -1743 (same). The
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`report further explains that “[s]urface water runoff and/or groundwater associated with the AOPIs
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`may discharge to the Mississippi River.” Id. at -1762; see id. at -1763 (same); id. at -1764 (same);
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`id. at -1765 (same); id. at -1766 (same); see also id. at -1736 (“seeps located in the Mississippi
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`River” are “downgradient” from training areas where AFFF was used). The report acknowledges
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`that “PFAS impacts from other sources” may have contributed to PFAS contamination of the
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`Mississippi River from the Rock Island Arsenal. Id. at -1751.
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`30.
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`Because the Rock Island Arsenal is a U.S. military facility, any AFFF used, stored,
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`or disposed at the Rock Island Arsenal would have been MilSpec AFFF.
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`31.
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`As a result, the elevated PFAS levels identified by the U.S. Army at and around the
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`Rock Island Arsenal on the banks of the Mississippi River likely derive in part from the use,
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`storage, and/or disposal of MilSpec AFFF at the Rock Island Arsenal.
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`32.
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`Because the Rock Island Arsenal is on the banks of the Mississippi River 25 miles
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`downriver from 3M’s Cordova facility, alleged downstream PFAS contamination of natural
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`resources due to releases from the Cordova Facility into the Mississippi River could plausibly
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`overlap with PFAS contamination identified by the U.S. Army that stems from the use, storage, or
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`disposal of MilSpec AFFF at the Rock Island Arsenal.
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`33.
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`Accordingly, the alleged PFAS contamination for which the State seeks recovery
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`in this action is plausibly attributable in part to MilSpec AFFF, and 3M is entitled to remove this
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`case as a whole pursuant to federal officer jurisdiction. That is because “[i]t is entirely possible
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`that Plaintiffs’ injuries occurred from actions taken while Defendants were acting under color of
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`federal office: namely, MilSpec AFFF,” and the State “cannot prevent Defendants from raising the
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`production of MilSpec AFFF as a defense or alternative theory.” Nessel, 2021 WL 744683, at *3.
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`3M is entitled to raise “the production of MilSpec AFFF as a defense or alternative theory” to the
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`State’s allegations of PFAS contamination from the Cordova facility.
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`34.
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`The circumstances here are similar to those in Ridgewood Water v. 3M—an action
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`in which the plaintiff alleged damages from PFAS contamination of its water supply. See
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`Complaint, Ridgewood Water v. 3M Comp., No. 2:19-cv-09651 (“Ridgewood Water”), ECF No.
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`1-2 (D.N.J. April 11, 2019). That action was removed to federal court based on federal officer
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`jurisdiction and then transferred to the In re AFFF MDL. Judge Gergel denied the plaintiff’s
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`motion to remand. See Ex. C, Order Denying Remand (In re AFFF, No. 2:18-mn-2873, ECF No.
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`325 (D.S.C. Oct. 1, 2019)). As Judge Gergel acknowledged, the plaintiff in that case affirmatively
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`disavowed any claim to recover for damages from contamination of its water supply due to
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`MilSpec AFFF, but instead was purporting to bring suit to recover for PFAS contamination from
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`other sources (including commercial or non-MilSpec AFFF). Id. at 2-3. But the removing
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`defendants had shown that the contamination of the plaintiff’s water supply was plausibly
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`attributable in part to releases of PFAS from the use of MilSpec AFFF at a nearby airport. The
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`plaintiff disputed that evidence (see id. at 3), but Judge Gergel concluded that federal officer
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`removal was appropriate because the defendants “contend[ed] that the AFFF products were
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`manufactured according to MilSpec” and thus had a “colorable” federal defense. Id. at 5. Federal
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`officer removal is similarly appropriate here because the alleged PFAS contamination of natural
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`resources downstream from the Cordova Facility is plausibly due in part to MilSpec AFFF.
`
`C.
`
`All Four Requirements of 28 U.S.C. § 1442(a)(1) Are Satisfied
`
`1.
`
`The “Person” Requirement Is Satisfied
`
`35.
`
`The first requirement for removal under the federal officer removal statute is
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`satisfied here because 3M (a corporation) is a “person” under the statute. For purposes of
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`§ 1442(a)(1), the term “person” includes “‘companies, associations, firms, [and] partnerships.’”
`
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`4:22-cv-04075-SLD-JEH # 1 Page 12 of 21
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`Papp, 842 F.3d at 812 (quoting 1 U.S.C. § 1); see Betzner, 910 F.3d at 1015 (“Corporations are
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`persons under § 1442(a).”).
`
`2.
`
`The “Acting Under” Requirement Is Satisfied
`
`36.
`
`The second requirement, “acting under” a federal officer, is satisfied when an entity
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`assists or helps carry out the duties or tasks of a federal officer. Watson, 551 U.S. at 152; see also
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`Baker, 962 F.3d at 942; Ruppel, 701 F.3d at 1181. “The words ‘acting under’ are to be interpreted
`
`broadly.” Isaacson, 517 F.3d at 136. Federal courts “have explicitly rejected the notion that a
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`defendant could only be ‘acting under’ a federal officer if the complained-of conduct was done at
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`the specific behest of the federal officer or agency.” Papp, 842 F.3d at 813.
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`37.
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`The requirement is met here because the alleged PFAS contamination plausibly
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`stems in part from MilSpec AFFF, a vital product provided by 3M that otherwise “the Government
`
`would have had to produce itself.” Isaacson, 517 F.3d at 137; see also Ruppel, 701 F.3d at 1181.
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`MilSpec AFFF is a mission critical military and aviation safety product that, without the support
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`of private contractors, the government would have to produce for itself. See Ayo, 2018 WL
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`4781145, at *9 (describing MilSpec AFFF as a “mission critical” and “life-saving product” used
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`by all branches of the U.S. armed forces and NATO members (internal quotation marks omitted));
`
`cf. Isaacson, 517 F.3d at 137. The Naval Research Laboratory states that, “[a]lthough [it] was
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`responsible for the original concepts and formulations, it was necessary to elicit the aid of the
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`chemical industry to synthesize the fluorinated intermediates and agents to achieve improvements
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`in formulations.”9
`
`38.
`
`Accordingly, the military has long depended upon outside contractors like 3M to
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`manufacture and supply AFFF. See Nessel, 2021 WL 744683, at *3 (“[I]f a private contractor is
`
`9
`
`Fulfilling the Roosevelts’ Vision 37.
`
`12
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`

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`4:22-cv-04075-SLD-JEH # 1 Page 13 of 21
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`performing a job that ‘in the absence of a contract with a private firm, the Government itself would
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`have had to perform,’ the contractor is acting under a federal officer. . . . This is a product that the
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`Government would have had to create if Defendants[10] did not exist.” (quoting Watson, 551 U.S.
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`at 153-34)); Ayo, 2018 WL 4781145, at *8-9 (holding that 3M and other AFFF manufacturers were
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`“acting under” a federal officer in connection with the manufacture and sale of MilSpec AFFF);
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`In re AFFF, 2019 WL 2807266, at *2 (finding that the “acting under” requirement was satisfied
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`because defendant demonstrated that it was manufacturing AFFF under the guidance of the U.S.
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`military). If 3M and other manufacturers did not provide MilSpec AFFF for use by the military,
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`the government would have to manufacture and provide the product itself. “Therefore, [3M] ha[s]
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`satisfied the ‘acting under’ requirement of § 1442(a)(1).” Nessel, 2021 WL 744683, at *3.
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`39.
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`In designing, manufacturing and supplying MilSpec AFFF products, 3M acted
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`under the direction and control of one or more federal officers. Specifically, 3M acted in
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`accordance with detailed specifications, promulgated by Naval Sea Systems Command, that
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`govern AFFF formulation, performance, testing, storage, inspection, packaging, and labeling.
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`Further, the MilSpec AFFF products were subject to various tests by the United States Navy before
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`and after being approved for use by the military and for inclusion on the Qualified Products List
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`maintained by the United States Department of Defense.11
`
`3.
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`The “Under Color Of Federal Office” Requirement Is Satisfied
`
`40.
`
`The third requirement, that a defendant’s actions were taken “under color of federal
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`authority,” requires a “causal connection between the charged conduct and asserted official
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`authority.” Ruppel, 701 F.3d at 1181 (quoting Jefferson Cty., 527 U.S. at 431). Like the “acting
`
`10
`
`11
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`The “Defendants” in the Nessel case include 3M.
`See Dep’t of Defense, SD-6, at 1.
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`13
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`4:22-cv-04075-SLD-JEH # 1 Page 14 of 21
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`under” requirement, “[t]he hurdle erected by this requirement is quite low.” Isaacson, 517 F.3d at
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`137. Courts “credit Defendants’ theory of the case when determining whether [this] causal
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`connection exists.” Id.12
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`41.
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`To meet this requirement, “[d]efendants must only establish that the act that is the
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`subject of Plaintiffs’ attack . . . occurred while Defendants were performing their official duties.”
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`Isaacson, 517 F.3d at 137-138; accord Baker, 962 F.3d at 945; see also id. at 944 (Seventh Circuit
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`has “join[ed] all the courts of appeals that have replaced causation with connection” for purpose
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`of applying the “under color of federal office” requirement); Sawyer v. Foster Wheeler LLC, 860
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`F.3d 249, 258 (4th Cir. 2017) (“[T]here need be only a connection or association between the act
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`in question and the federal office.” (internal quotation marks omitted)). The State’s claims for
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`PFAS contamination of natural resources downstream from the Cordova Facility plausibly arise
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`in part from 3M’s production and sale of AFFF manufactured according to military specifications
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`established by the Department of Defense. Such MilSpec AFFF was then used, stored, or disposed
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`by the U.S. military at installations in the State of Illinois, including at least at the Rock Island
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`Arsenal, which are or have been required to employ MilSpec AFFF. As a result, the State’s claims
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`against 3M relate to acts taken under color of federal office because those claims encompass
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`contamination from MilSpec AFFF. See, e.g., Ayo, 2018 WL 4781145, at *9 (“[T]here is evidence
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`of a ‘casual connection’ between the use of PFCs in AFFF and the design and manufacture of
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`AFFF for the government.”); In re AFFF, 2019 WL 2807266, at *2 (“Here, [Plaintiff]’s claims
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`arise out of use of AFFF products that it claims [the defendant] manufactured and sold, and for
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`which the U.S. military imposes MilSpec standards. The Court . . . finds that the causation element
`
`12
`The “acting under” and “under color of” prongs overlap. Both “are satisfied if the actions
`subject to suit resulted directly from government specifications or direction.” Albrecht v. A.O.
`Smith Water Prods., No. 11 Civ. 5990, 2011 WL 5109532, at *5 (S.D.N.Y. Oct. 21, 2011).
`
`14
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`4:22-cv-04075-SLD-JEH # 1 Page 15 of 21
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`of federal officer removal is satisfied here.”); Nessel, 2021 WL 744683, at *3 (“[I]t is entirely
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`possible that Plaintiffs’ injuries occurred from actions taken while Defendants were acting under
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`color of federal office: namely, MilSpec AFFF.”). “[I]t is enough for the present purposes of
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`removal that at least some of the pollution arose from the federal acts.” Baker, 962 F.3d at 945.
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`4.
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`The “Colorable Federal Defense” Requirement Is Satisfied
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`42.
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`The fourth requirement, a “colorable federal defense,” is satisfied by 3M’s assertion
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`of the government contractor defense.
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`43.
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`At the removal stage, a defendant need only show that its government contractor
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`defense is colorable; that is, “that the defense was ‘legitimate and [could] reasonably be asserted,
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`given the facts presented and the current law.’” Papp, 842 F.3d at 815 (alteration in original,
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`citation omitted). In other words, “a colorable federal defense under § 1442(a) need only be
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`plausible.” Betzner, 910 F.3d at 1014. A defendant “need not win his case before he can have it
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`removed.” Willingham, 395 U.S. at 407; see Ruppel, 701 F.3d at 1182 (“[T]his requirement . . .
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`encapsulates Congress’s desire to have federal defenses litigated in federal forums. . . . Requiring
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`the defense only to be colorable, instead of ‘clearly sustainable,’ advances that goal.” (quoting
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`Willingham, 395 U.S. at 407)); Venezia v. Robinson, 16 F.3d 209, 212 (7th Cir. 1994) (“A federal
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`defendant need not show that he is entitled to prevail in order to have access to the federal forum.”);
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`see also Bennett, 607 F.3d at 1089; Isaacson, 517 F.3d at 139. “[T]he defense need not be ‘clearly
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`sustainable’ to justify removal as merely ‘colorable.’” In re AFFF, 2019 WL 2807266, at *3; see
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`Nessel, 2021 WL 744683, at *4 (“Defendants need not completely prove the validity of this
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`defense; they must only show that the defense is plausible.” (citing Bennett, 607 F.3d at 1089)).
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`At the removal stage, the inquiry “is purely jurisdictional, and neither the parties nor the district
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`courts should be required to engage in fact-intensive motion practice, pre-discovery, to determine
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`the threshold jurisdictional issue.” Cuomo, 771 F.3d at 116 (citing Kircher v. Putnam Funds Tr.,
`15
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`4:22-cv-04075-SLD-JEH # 1 Page 16 of 21
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`547 U.S. 633, 644 n.12 (2006)).13 Moreover, “this inquiry is undertaken whilst viewing the facts
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`in the light most favorable to Defendants.” Hagen v. Benjamin Foster Co., 739 F. Supp. 2d 770,
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`783–84 (E.D. Pa. 2010). “Precisely in those cases where a plaintiff challenges the factual
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`sufficiency of the defendant’s defense, the defendant should ‘have the opportunity to present [his]
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`version of the facts to a federal, not a state, court.’” Cuomo, 771 F.3d at 116 (alteration in original)
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`(citation omitted); see also Ruppel, 701 F.3d at 1182 (“At this point, we are concerned with who
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`makes the ultimate determination, not what that determination will be. . . . The validity of the
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`defense will present complex issues, but the propriety of removal does not depend on the answers.”
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`(internal quotation marks omitted)).
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`44.
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`Under the government contractor defense, the defendant is not liable for alleged
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`defects or negligence with respect to military equipment or s