Fourth Circuit Paves the Way for Defendants to Remove More PFAS Cases to Federal Court (and Transfer Them to the AFFF MDL)
A divided Fourth Circuit panel held that district courts in Maryland and South Carolina erred in remanding certain cases that 3M removed to federal court based on the federal officer removal statute. The states originally sued 3M in state court and expressly disclaimed any liability based on PFAS contamination caused by aqueous film-forming foam (AFFF). 3M removed the cases to federal court under the federal officer removal statute—based on 3M’s manufacture of AFFF for the U.S. military—arguing that the PFAS from 3M’s AFFF “indistinguishably commingled” with the PFAS at issue in the states’ lawsuits. The district courts disagreed and remanded the cases to state court, but the Fourth Circuit vacated those decisions on appeal. The Fourth Circuit refused to “accept the States’ attempts to immunize their complaints from federal officer removal with their purported disclaimers in this case.” Instead, the Fourth Circuit looked to 3M’s “well-pleaded facts of removal” and held that 3M’s removal “holds sufficient water” because the states pleaded PFAS contamination near military bases where 3M alleged that it sold AFFF. This appeal is not yet finished—the Fourth Circuit recently stayed the panel’s decision to consider the states’ petition for rehearing en banc.
March 7, 2025 |Maryland v. 3M Company, No. 24-1218 (4th Cir.); South Carolina v. 3M Company, No. 24-1270 (4th Cir.).