Back in 2020, we published a post, “Is It Time To Reconsider Federal Officer Removal?” It discussed a Fifth Circuit asbestos case, Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286 (5th Cir. 2020), overruled prior precedent in light of a congressional amendment to the federal officer removal statute, 28 U.S.C. §1442(a), that broadened the grounds for removal to include all claims “relating to” “any act under color of such [federal] office.” Latiolais held:
This change plainly expresses that a civil action relating to an act under color of federal office may be removed (if the other statutory requirements are met). . . . [T]he ordinary meaning of the words “relating to” is a broad one. . . . Congress added this “broad” term to “for”. . . . By the Removal Clarification Act, Congress broadened federal officer removal to actions, not just causally connected, but alternatively connected or associated, with acts under color of federal office.
951 F.3d at 292 (citations and quotation marks omitted).
Now, as we discussed last week, the United States Supreme Court recently held essentially the same thing, in Chevron USA Inc. v. Plaquemines Parish, Louisiana, 146 S. Ct. 1052 (U.S. 2026), so it’s definitely time for defense counsel to add federal officer removal to the list of things they consider while combatting the other side’s forum shopping. As pointed out in our previous post, Chevron could call into question prior precedent – which is based on language that predates the 2011 statutory amendment construed in Chevron, see Watson v. Philip Morris Cos., 551 U.S. 142, 152 (2007) – that “mere” compliance with federal regulatory requirements, no matter how detailed, does not support federal officer-based federal subject matter jurisdiction. We mentioned in that post how Chevron “appears to expand the decision in Latiolais” that was the subject of our 2020 post.
As we said, Chevron does not require any specific contractual obligations owed to the government:
[T]he Chevron Court held that the claims did not belong in state court because a state statutory defense implicated [defendant’s] contracts . . . contracts that did not reference oil production at all, did not require any specific methods for producing oil, and in fact allowed [defendant] to obtain crude oil from others to meet its refining commitments. In doing so, the Court affirmed that the statute means what it says: the challenged conduct need only “relate to” actions taken under color of federal law in some amorphous way.
(citing Chevron, 146 S. Ct. at 1061). Specifically,
- “Relating to” did not require that the government specified “how” the defendant was to conduct itself. The government need not “specifically[] invite[] the challenged conduct.” 146 S. Ct. at 1062.
- “[A]n act can relate to its consequences even when the causal chain includes actions by intermediaries.” Id.
- Removal is proper even though the defendant’s “acts . . . were not done under color of [federal] offices, so long as the suits ‘relate to’ such acts.” Id. at 1063.
The FDA imposes a lot of requirements on what our clients do. While Watson held under the prior, more limited, version of the statute, that regulatory compliance does not alone support removal, in Chevron compliance was a fact that the Court considered in support of jurisdiction, albeit briefly, 146 S. Ct. at 1061 (citing a 1941 Federal Register requirement). In our sandbox, lots of other governmental requirements beyond FDA requirements affect the design and labeling of prescription medical products. The Center for Medicare & Medicaid Services, in its capacity as a government purchaser, also enforces requirements. The relationship of CMS – a direct purchaser of medical products − is more “related to” the condition of those products than was the government activity in Chevron, since Medicare and Medicaid buy those very products, not merely raw materials used to make them. At minimum, anything that a creative plaintiff lawyer could plead as a False Claims Act claim, even if based on purported state law rather than the FCA, would seem to be removable under Chevron.
Thus, after Chevron we expect to see (and we encourage) a lot more federal officer-based removals than before. And federal officer removal is not subject to the same timing (and other) limitations that apply to removal based on diversity jurisdiction.
Particularly apropos is the entirely coincidental federal officer removal decision in West Virginia v. 3M Co., 2026 WL 1078572 (S.D.W. Va. April 21, 2026), decided four days after Chevron and not citing the Supreme Court’s opinion. The State of West Virginia claimed that the defendant’s respirators, used, inter alia, in coal mining, violate that state’s consumer protection statute because they did not contain a warning stating either: “NOT FOR USE IN COAL MINING/IGNORE NIOSH COAL APPROVAL” or ‘CANNOT BE PROPERLY AND CONSISTENTLY FITTED.” Id. at *2. The defendant in the case successfully removed the case to federal court under §1442(a) because the same respirators were also sold to government sources as COVID countermeasures during the recent pandemic. Federal officer removal was proper because:
- Federal question removal (unlike diversity) “requires liberal construction, [and] the ordinary rules of removal do not apply.” Id. at *3 (citation and quotation marks omitted).
- “[T]he ordinary presumption against removal does not apply to federal officer removal.” Id. (citation and quotation marks omitted).
- The well-pleaded complaint rule is displaced” so that “suits against federal officers [may] be removed despite the nonfederal cast of the complaint.” Id.
- The defendant was “acting under” a federal officer – FEMA – when it sold the same respirators to the agency as COVID-19 “countermeasures” pursuant to the PREP Act during the pandemic. Id. at *4.
- That the respirators were a “standardized consumer product” with other uses did not matter since “the federal government . . . mandated that [defendant] supply NIOSH-approved respirators to FEMA for distribution to states. Id.
- “By supplying the government with respirators, based on a government mandate during a national emergency, to ensure that healthcare workers and first responders were adequately supplied with respirators, [defendant] helped the federal government’s efforts in reducing the spread of COVID-19.” Id. at *5.
- “[T]he federal government required [defendant] to supply respirators . . . that were approved by NIOSH, which has regulations pertaining to labeling and approval of such labels.” Id. at *6.
Thus, “based on the government mandate and the close relationship between [defendant] and the federal government in responding to a national emergency, the Court finds [defendant] was acting under a federal officer. Id. at *5 (footnote omitted). Thus, the defendant’s product sales were related to the government’s pandemic requirements for respirators, even though the state’s suit was solely about a different use of the respirators by different purchasers. The suit attacked the same NIOSH-approved warnings that all of the defendant’s respirators carried, and that was enough to support removal on a “plausible” government connection. Id. at *6-7.
Finally, the last element for federal officer removal under §1442(a) was a “colorable” federal defense. Id. at *7. That was easy in WV v. 3M: conflict preemption. Since the state was demanding a warning that stated “IGNORE NIOSH COAL APPROVAL” a “colorable” basis for alleging a conflict with federal requirements was not hard to find. Id. at *8.
Thus, even before the Supreme Court gave its imprimatur to broad-based federal officer removal in Chevron, WV v. 3M provides an example of how such removal can work on a product liability-based set of facts.