State of Ohio, ex rel. DAVE YOST, Attorney General of Ohio v. Ascent Health Services, LLC

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 26a0026p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
STATE OF OHIO, ex rel. DAVE YOST, Attorney General
of Ohio,
Plaintiff-Appellee,
v.
ASCENT HEALTH SERVICES, LLC; EXPRESS SCRIPTS,
INC.; CIGNA GROUP; EVERNORTH HEALTH, INC.; PRIME
THERAPEUTICS LLC,
Defendants-Appellants.
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No. 24-3033
Appeal from the United States District Court for the Southern District of Ohio at Columbus.
No. 2:23-cv-01450—Michael H. Watson, District Judge.
Argued: December 11, 2025
Decided and Filed: January 27, 2026
Before: SUTTON, Chief Judge; BOGGS and BLOOMEKATZ, Circuit Judges.
_________________
COUNSEL
ARGUED: Daniel J. Howley, RULE GARZA HOWLEY LLP, Washington, D.C., for
Appellants. Michael J. Hendershot, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellee. ON BRIEF: Daniel J. Howley, Charles F. Rule, Emily M.
Renzelli, Benjamin Z. Bergmann, Erica N. Baum, RULE GARZA HOWLEY LLP, Washington,
D.C., Jaime Stilson, DORSEY & WHITNEY LLP, Minneapolis, Minnesota, Matthew L.
Jalandoni, W. Benjamin Reese, FLANNERY GEORGALIS LLC, Columbus, Ohio, David J.
Butler, TAFT STETTINIUS & HOLLISTER LLP, Columbus, Ohio, Jeanne M. Cors, TAFT
STETTINIUS & HOLLISTER LLP, Cincinnati, Ohio, for Appellants. Michael J. Hendershot, T.
Elliot Gaiser, Jennifer L. Pratt, Sarah Mader, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellee.
>

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OPINION
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SUTTON, Chief Judge. The State of Ohio filed this lawsuit in state court, alleging that a
group of healthcare firms conspired to drive up prices of prescription drugs in violation of several
Ohio laws. The defendant firms include two Pharmacy Benefit Managers, known in the industry
as PBMs, that negotiate with drug companies to provide prescription drug coverage for federal
employees. The PBMs removed the case to federal court under the federal officer removal statute.
Ohio moved to remand, arguing that its complaint does not impose liability on any conduct
undertaken at the direction of a federal officer. We conclude that it does and reverse the district
court’s contrary determination.
I.
American consumers usually receive health coverage from private insurers, unions, or
employers. In return for premiums, these “plan sponsors” offer consumers a range of benefits.
Health coverage often includes reduced-cost access to prescription drugs and the option to
purchase drugs at a lower copay from a network of retail pharmacies.
Pharmacy Benefit Managers act as middlemen. They negotiate with drug manufacturers
on behalf of plan sponsors. In doing that work, PBMs typically create “formularies,” what amount
to listed drugs that covered consumers can purchase for lower copays. R.1-3 ¶ 73. Because
consumers understandably prefer to pay for medication with as little money as possible out of their
own pocket, drugs included on formularies benefit from increased demand. And because drug
manufacturers understandably want to sell more of their products, they are incentivized to get their
products listed on the formularies. That reality gives the PBMs leverage to negotiate “rebates”—
post-sale discounts based on the number of consumers that purchased the manufacturers’ drug—
from drug manufacturers in exchange for inclusion on the PBM’s formularies. R.1-3 ¶ 60.
PBMs also administer “pharmacy networks,” lists of preferred pharmacies that offer lower
prescription copays for consumers with certain health coverage. The same dynamic emerges.

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Consumers want the lower prices available at in-network pharmacies. Pharmacies want increased
demand. And PBMs leverage these incentives to extract discounts.
Prime Therapeutics and Express Scripts are PBMs. They offer services to private clients
as well as to plan sponsors that contract with the Office of Personnel Management under the
Federal Employees Health Benefits Act, sometimes referred to as FEHBA, to provide health
insurance to federal employees. Express Scripts also provides PBM services to the Department of
Defense as part of its TRICARE health-insurance program for active duty and retired members of
the Uniformed Services and their spouses and children.
Ohio filed this lawsuit in state court against the PBMs and other defendants, alleging
unlawful pharmaceutical clawbacks, unlawful pharmacy fee adjustments, unduly high prices,
deceptive acts, and violations of its antitrust statute. According to the complaint, the PBMs forced
higher list prices by demanding significant rebates from manufacturers while tying the amount of
the rebates to the list price of the drug. But they allegedly pocketed many of the rebates rather
than passing them to the carriers. Making matters worse, Ohio claims, the PBMs separately used
their power over pharmacies to demand fees and payments based on sales previously made.
Two defendants—Express Scripts and Prime Therapeutics—removed the case to federal
district court under the federal officer removal statute. 28 U.S.C. § 1442(a)(1). The State moved
to remand. In the motion, it disclaimed that its claims challenged “the operation or administration
of federal health benefits programs such as TRICARE or FEHB.” R.40 at 10. In ruling on the
motion, the district court noted that the PBMs asserted that they conducted a single negotiation on
behalf of all their clients. But that reality, in its view, “does not mean that they cannot conduct
negotiations differently pursuant to a [Ohio state] court order.” R.97 at 6 (quotation omitted).
Concluding that the disclaimer eliminated any potential liability for acts undertaken at the direction
of a federal officer, the district court remanded the case to state court. The PBMs appeal.
II.
In relevant part, § 1442 permits a state-court defendant to remove lawsuits or prosecutions
against “any officer (or any person acting under that officer) of the United States or of any agency
thereof, in an official or individual capacity, for or relating to any act under color of such office.”

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28 U.S.C. § 1442(a)(1). To remove a lawsuit under this statute, the defendant thus must establish:
(1) that it is a federal officer or a “person acting under” a federal officer, (2) that the lawsuit is
directed at conduct “for or relating to any act under color of [federal] office,” and (3) that it
involves a colorable federal defense. Id. While the statute “deal[s] with individuals,” it
“vindicates . . . the interests of government itself,” for “upon the principle that it embodies may
depend the possibility of the general government’s preserving its own existence.” Bradford v.
Harding, 284 F.2d 307, 310 (2d Cir. 1960) (Friendly, J.) (quotation omitted). That does not mean
§ 1442 expresses doubt as to the competence and fairmindedness of state courts. See Colorado v.
Symes, 286 U.S. 510, 518 (1932). Indeed, by allowing the Congress to create (or not create)
inferior federal tribunals, the Constitution itself presumes the competence of state forums. See
U.S. Const. art. III, § 1; cf. Printz v. United States, 521 U.S. 898, 907 (1997). The officer removal
statute instead guards against the possibility that, in particular cases, a state court’s adjudication of
a federal officer’s defense could “paralyze the operations of the government.” Tennessee v. Davis,
100 U.S. (10 Otto) 257, 263 (1879).
A notice of removal requires a “short and plain statement of the grounds for removal.”
28 U.S.C. § 1446(a). When a defendant removes, we consider its jurisdictional allegations under
the same standards that we would apply at the pleading stage. See Dart Cherokee Basin Operating
Co. v. Owens, 574 U.S. 81, 89 (2014). We review the district court’s remand order with fresh
eyes. Hudak v. Elmcroft of Sagamore Hills, 58 F.4th 845, 851 (6th Cir. 2023).
III.
Person acting under an officer of the United States. The PBMs are persons who acted
under an officer of the United States. A person “act[s] under” a federal officer when he makes “an
effort to assist, or to help carry out, the duties or tasks of the federal superior.” Watson v. Philip
Morris Cos., 551 U.S. 142, 152 (2007); see Maryland v. Soper, 270 U.S. 9, 22 (1926). That
includes private firms, which are “person[s]” within the meaning of the statute. Bennett v. MIS
Corp., 607 F.3d 1076, 1085 (6th Cir. 2010); see Watson, 551 U.S. at 147–48. The statute requires
a “relationship” to the federal superior characterized by “subjection, guidance, or control.”
Watson, 551 U.S. at 151 (quotation omitted). The relationship typically arises when a private

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contractor performs a task that “the Government itself would [otherwise] have had to perform.”
Id. at 154.
The PBMs “act[ed] under” a federal officer. 28 U.S.C. § 1442. The Federal Employee
Health Benefits Act creates a “comprehensive program of health insurance for federal employees”
and “assigns to OPM [Office of Personnel Management] broad administrative and rulemaking
authority over” that program. Coventry Health Care of Mo., Inc. v. Nevils, 581 U.S. 87, 91 (2017)
(quotation omitted). The Office of Personnel Management cannot “negotiat[e] and regulat[e]
health-benefits plans for federal employees” without negotiating prescription drug prices. See
Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 683 (2006); 5 U.S.C. § 8902(a);
OPM, FEHB Program Carrier Letter, Letter No. 2024-05 (Feb. 12, 2024), https://perma.cc/EFS4-
NGSW. To fulfill its duties, the Office of Personnel Management contracts with private carriers
and authorizes them to subcontract with PBMs to provide coverage. 5 U.S.C. § 8902(a).
The Office mandates many of the terms in those subcontracts and controls the PBMs’
conduct as a result. It caps the amount that PBMs may charge carriers for their services. It forbids
PBMs from setting prices for carriers based on industry benchmarks (which are higher) and instead
ties reimbursement to the PBM’s acquisition cost plus a dispensing fee. It forces the PBMs to pass
all “negotiated discounts, rebates, credits, or other financial benefits” on to the carrier. FEHB
Standard Contract 1.28(a)(2). It demands extensive disclosures of costs, profits, fees, negotiated
rebates, and revenues, as well as “the right to review and receive any information and/or documents
the Carrier receives from the PBM,” id. at (a)(7). It can and does audit PBMs. And it requires
PBMs to meet at a “minimum” OPM’s standards for “member inquiry, telephone customer
service” and “paper claims processing.” Id. at (c).
That contractual control satisfies the statute’s “act[ing] under” prong when the PBMs
negotiate with drug manufacturers. When the PBMs negotiate with drug manufacturers, they play
a key role in the Office of Personnel Management’s “effort to . . . carry out” its FEHBA duties of
providing prescription-drug benefits. See Watson, 551 U.S. at 152; see also Federal Employees
Health Benefits Acquisition Regulation, 70 Fed. Reg. 31374, 31375 (June 1, 2005). When the
PBMs negotiate with drug manufacturers, put differently, they perform a task that the government
itself would otherwise have to perform. See Bennett, 607 F.3d at 1087. And they do so within a

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regulatory framework that subjects them to the government’s “guidance” and “control.” Watson,
551 U.S. at 151.
Express Scripts’ pharmacy negotiations under the TRICARE program unfolded under
similar federal control. The Department of Defense bars Express Scripts from collecting “fees,
rebates, discounts, or premiums specific to processing TRICARE prescriptions.” R.1-7 at 239. It
forbids Express Scripts from “negotiat[ing] or collect[ing] any pharmaceutical rebates from . . .
network pharmacies on behalf of the Government or for itself.” R.1-7 at 239. It mandates the
number and location of the pharmacies Express Scripts adds to the network as well as the minimum
quality of services the pharmacies must provide. It maintains comprehensive rights to information
and frequently audits Express Scripts. And it separately requires Express Scripts to perform audits
at its direction. The PBM, in short, operates under the Department of Defense’s “subjection,
guidance[,]” and “control.” Watson, 551 U.S. at 151; see Cnty. Bd. of Arlington Cnty. v. Express
Scripts Pharmacy, Inc., 996 F.3d 243, 251–53 (4th Cir. 2021).
Our decisions in Bennett v. MIS Corp. and Mays v. City of Flint illustrate the two sides of
the acting-under-a-federal-officer line. In Bennett, the Federal Aviation Agency hired private
firms to deal with a mold infestation in one of its control centers. The contractors succeeded only
in “disastrous[ly] causing toxic mold to spread throughout the tower.” 607 F.3d at 1082 (quotation
omitted). When affected federal employees filed a lawsuit over the contamination, we allowed
removal based on the federal agency’s “detailed regulation, monitoring, [and] supervision” of the
contractors’ work. Id. at 1088. In Mays, by contrast, the Michigan Department of Environmental
Quality attempted to remove state tort actions arising out of the Flint water crisis. 871 F.3d 437,
440 (6th Cir. 2017). We remanded the case back to state court. Id. “[R]epeated written and verbal
dialogue” between the Michigan agency and the federal Environmental Protection Agency, we
explained, did not establish that the former acted under the latter. Id. at 441.
The PBMs’ case for removal has much in common with Bennett and little in common with
Mays. As in Bennett, the PBMs operate under “explicit parameters” set by the federal government.
607 F.3d at 1087. Not so in Mays. See 871 F.3d at 447. As in Bennett, the PBMs face constant,
pervasive, and “direct[] supervision” from the federal government. 607 F.3d at 1087. Not so in
Mays. See 871 F.3d at 446. As in Bennett, the government could set binding standards for the

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contractors’ employees, 607 F.3d at 1087, as today’s contracts require the PBMs to meet safety,
turnaround, dispensing, and drug interchange standards of OPM’s choosing. Not so, or at least not
mentioned, in Mays. And as in Bennett, the PBMs perform a task the federal government would
have to perform. 607 F.3d at 1088. Not so in Mays. See 871 F.3d at 446 (noting that the Michigan
agency, MDEQ, ultimately enforced Michigan law).
Ohio’s responses on this score do not persuade us otherwise. The State argues that its
complaint challenges only the PBMs’ conduct with respect to non-federal clients. Because the
federal government has no duty to those clients, Ohio reasons, the PBMs did not “act under” a
federal officer during the relevant negotiations. But when the PBMs bargain with drug
manufacturers and pharmacies, they conduct a single negotiation on behalf of all of their clients.
Alleged liability arising from this negotiation process necessarily includes federal conduct.
Confirming this conclusion is the reality that Ohio’s complaint seeks backward-looking
relief through money damages. Whether the PBMs could conduct separate negotiations in the
future does not matter. Cf. Davis v. South Carolina, 107 U.S. (17 Otto) 597, 600 (1883) (“Davis
was acting in [a federal] capacity.” (emphasis added)). What matters is that the targeted
negotiations were handled holistically and that, as a result, the complaint necessarily targets federal
conduct. As Ohio conceded at oral argument, two other circuits and a concurrence by Judge Ikuta
have come to the same conclusion in this precise scenario, and no circuits have gone the other way.
See Puerto Rico v. Express Scripts, Inc., 119 F.4th 174, 191 (1st Cir. 2024); West Virginia ex rel.
Hunt v. CaremarkPCS Health, L.L.C., 140 F.4th 188, 199 (4th Cir. 2025); see also California v.
CaremarkPCS Health LLC, 2024 WL 3770326, at *2 (9th Cir. 2024) (Ikuta, J., concurring only in
the judgment) (“In targeting Caremark’s rebate negotiations for private clients, California
necessarily also targets Caremark’s rebate negotiations for the federal government (since they are
the same negotiations).”).
Ohio separately relies on Graves v. 3M Co., 17 F.4th 764 (8th Cir. 2021), but it does not
lead to a contrary conclusion. Plaintiffs sued 3M for allegedly failing to warn them that the
earplugs it manufactured could fail if users did not follow the relevant fitting instructions. Id. at
768. Because 3M manufactured the devices in consultation with the Army, it invoked the officer-
removal statute. Id. The Eighth Circuit rejected 3M’s removal request. Id. at 767. Even though

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3M worked with the Army in designing the earplugs, the Eighth Circuit reasoned that it had not
done so with respect to the instructions and warnings it attached to commercial sales. Id. at 770.
Ohio’s complaint, if anything, parallels the kind of design-defect claims that the Eighth Circuit
would have likely allowed to be removed in Graves (if the plaintiff had brought such claims). See
17 F.4th at 770.
Neither does Ohio State Chiropractic Ass’n v. Humana Health Plan Inc. advance Ohio’s
position. 647 F. App’x 619, 623–24 (6th Cir. 2016). It held that Medicare Advantage
Organizations, which provide a privatized alternative to Medicare Parts A and B, do not perform
a task that the government would otherwise have to perform. The removing parties in Humana
existed solely to provide a private competitor to traditional Medicare. 647 F. App’x at 623–24. If
they left the stage, as Humana explained, the federal government could simply scrap the private
alternative. Id. Negotiating drug prices, by contrast, is a yearly, fundamental, and never-ending
feature of a statutory obligation that the federal government owes to its employees. See Coventry
Health, 581 U.S. at 91; 5 U.S.C. § 8901. There is no scrapping that, as Humana appreciated. See
647 F. App’x at 624 (describing “providing health care to federal employees” as a “task[] that the
government would otherwise have to use its own agents to complete”).
Humana and Graves showcase complaints that properly avoid federally controlled
conduct. The plaintiffs in Graves limited their lawsuit to 3M’s alleged failure to warn them about
the proper use of the earplugs it manufactured. 17 F.4th at 770. By confining liability to
commercial warnings (which had nothing to do with “carrying out or assisting in the government’s
duties”) the plaintiffs challenged 3M’s alleged wrongdoing while leaving its federal conduct
untouched. Id. The plaintiffs in Humana likewise targeted a Medicare Advantage Organization’s
alleged unjust enrichment in a purely “private billing dispute.” 647 F. App’x at 620, 625. The
challenged conduct thus occurred at “a distance from” the federal Centers for Medicare and
Medicaid Services. Id. at 624. Perhaps Ohio could carve out federal activity in a future complaint
with respect to prescription-drug prices. But it has not done so here.
Ohio insists that its complaint challenges only the unlawful retention of rebates, not the
inflation of list prices in the negotiation process, and thus its complaint does not reach federal
conduct for that reason. Because the complaint extends to price increases that (at least on this

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record) do not arise solely from retention of rebates, we disagree. Three consecutive paragraphs
at a minimum belie Ohio’s theory. One: “During its negotiations with Manufacturers, Express
Scripts threatens to deny favorable Formulary tier position to . . . any drug on which the
Manufacturer will not pay the demanded level of fees and Rebates.” R.1-3 ¶ 80. Two: “[T]he
only way that Manufacturers can satisfy Express Scripts’ demand for higher Rebates is to raise
List Prices.” R.1-3 ¶ 81. Three: “The higher List Prices that Express Scripts extracts from
Manufacturers in exchange for Formulary placement raise out-of-pocket costs.” R.1-3 ¶ 82. Still
more paragraphs repeat and reemphasize this theme. See, e.g., R.1-3 ¶¶ 3, 10, 14–17, 20, 29, 60,
72, 77, 80–84, 88–109, 144, 177, 196–97, 209–11. The focus on the PBMs’ overall negotiations,
for example, arises in the third paragraph. R.1-3 ¶ 2 (charging the PBMs with orchestrating a
“‘pay to play’ rebate system that, perversely, pushes manufacturers to increase drug prices”).
Then, on the third to last page of the complaint’s narrative, Ohio continues to drive the same point
home. R.1-3 ¶ 194 (“[The PBMs] carry[] out agreements with Manufacturers that have the purpose
and effect of fixing and increasing the out-of-pocket prices these individuals must pay for their
prescription drugs.”). And, contrary to the State’s suggestions, the complaint does not discuss
price hikes merely to build atmosphere; Ohio premises its causes of action on the same alleged
harm. See R.1-3 ¶ 209 (“Ohio purchasers of drugs . . . have been injured because of the
supracompetitive prices of drugs set by this combination.”). Nowhere does Ohio allege that these
harmful price increases arise solely from the retention of rebates. On this record, it follows that,
when Ohio challenges the PBMs’ effect on drug prices, it unavoidably also challenges their
negotiations with manufacturers and necessarily reaches federally controlled conduct. See
Baker v. Atl. Richfield Co., 962 F.3d 937, 945 (7th Cir. 2020) (“[I]t is still enough for the present
purposes of removal that at least some of the pollution arose from the federal acts.”); California,
2024 WL 3770326, at *2 (Ikuta, J., concurring only in the judgment).
Ohio separately disclaims any intent to impose liability based on the administration of
FEHB or TRICARE. When federal jurisdiction turns on the types of claims that a plaintiff asserts
against a defendant, sure enough, the plaintiff may disclaim seeking certain kinds of liability to
avoid federal jurisdiction. See Smith v. Nationwide Prop. & Cas. Ins. Co., 505 F.3d 401, 407–08
(6th Cir. 2007). But not all disclaimers do the trick. We reject disclaimers that simply disavow
any attempt to recover based on the defendant’s indivisible federal conduct, as several other

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circuits have concluded. See Puerto Rico, 119 F.4th at 191; Hunt, 140 F.4th at 195–96; California,
2024 WL 3770326, at *2 (Ikuta J., concurring only in the judgment).
The reason respects the statute’s text and text-driven purpose. When the applicability of
the disclaimer turns on whether the defendant’s actions are in fact related to conduct undertaken
under color of federal office, a remand would mean denying the defendant a chance to present his
federal defenses in federal court. See Willingham v. Morgan, 395 U.S. 402, 408–09 (1969). Think
about Tennessee v. Davis, in which the State indicted a federal revenue agent in state court and the
officer attempted to remove the case. 100 U.S. (10 Otto) at 272. Tennessee could not have
reestablished jurisdiction merely by filing a document to the effect that “we do not seek to punish
Davis for conduct undertaken under color of his office as deputy collector of internal revenue.”
Else, the officer removal statute would not have provided any protection at all. See Davis, 100
U.S. (10 Otto) at 272.
Ohio’s disclaimer runs into this principle. In its motion to remand, Ohio “expressly
stat[ed]” that it “does not seek recovery for the types of PBM or pharmacy services Removing
Defendants identify in their notice of removal as they relate to TRICARE or FEHB plans.” R.40
at 10. Relinquishing claims “as they relate to” TRICARE or FEHB would allow a state court to
decide whether the federal government directed the conduct at issue. See, e.g., California, 2024
WL 3770326, at *1. Compounding the problem, the defendants’ theory of the case centers on the
indivisibility of their work for private and federal clients and turns on conduct—negotiations—
that have already occurred. See Hunt, 140 F.4th at 199. Crediting that theory requires us to reject
Ohio’s disclaimer.
In this respect, Jefferson County v. Acker provides another reason to accept the PBMs’
indivisibility argument. 527 U.S. 423 (1999). Acker reasoned that federal courts should accept
the defendant’s “theory of the case” for jurisdictional purposes. Id. at 432–33. We have ample
company in applying that principle to indivisible drug-price negotiations that have already
occurred. See Puerto Rico, 119 F.4th at 189; Hunt, 140 F.4th at 199; California, 2024 WL
3770326, at *2 (Ikuta, J., concurring only in the judgment) (“Under this theory of the case, which
we must credit, if Caremark were liable for negotiating rebates on behalf of private clients, it would
necessarily also be liable for negotiating rebates on behalf of the federal government.”).

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Nor does this approach overread Acker. The State claims that Acker’s discussion of
crediting the “theory of the case” refers only to accepting the defendant’s legal theories and not to
crediting factual conclusions. We agree but the distinction does not help the State. In Acker,
federal judges attempted to remove a state-law lawsuit that, in their opinion, attempted to collect
an unconstitutional tax. 527 U.S. at 427; see McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 327
(1819). The Solicitor General of the United States and the judges disagreed as to whether the local
tax fell on the judges for their work as judges or on them personally. Acker, 527 U.S. at 432. For
jurisdictional purposes, the Court credited the judges’ legal model as to what was being taxed. Id.
The “theory” we credit today is similar. The parties disagree about whether the liability imposed
on the negotiation process necessarily falls on federal conduct arising from a single negotiation for
drug prices, and we accept for jurisdictional purposes that it does. See Hunt, 140 F.4th at 199
(“Caremark’s theory of the case is that West Virginia attempts to hold them liable for a single
negotiation that was undertaken for all its clients.”); K&D LLC v. Trump Old Post Off. LLC, 951
F.3d 503, 507 (D.C. Cir. 2020) (applying Acker to credit a defendant’s legal model of where a
common-law claim places liability).
For or relating to any act under federal office. The complaint also challenges conduct “for
or relating to” an “act under color of [federal] office.” 28 U.S.C. § 1442(a)(1). The 2011 Removal
Clarification Act amended § 1442 and expanded its scope by adding the words “or relating to.”
We interpret the phrase “relates to” as meaning “[c]onnected in some way.” Black’s Law
Dictionary 1158 (5th ed. 1979). Identical language appears in the Employee Retirement Income
Security Act of 1974 and the Airline Deregulation Act of 1978. In those contexts, “[t]he ordinary
meaning of these words is a broad one,” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383
(1992), as the phrase is “conspicuous for its breadth,” FMC Corp. v. Holliday, 498 U.S. 52, 58
(1990). Even before the 2011 Act, we had said that “it is enough that the federal officer’s acts or
presence at the place in performance of his official duty constitutes the basis” for the lawsuit.
Bennett, 607 F.3d at 1088 (quotation omitted). As amended, the statute requires only an
association, connection, or tie between the challenged conduct and the defendant’s acts under color
of federal office. See, e.g., Willingham, 395 U.S. at 408–09; Sawyer v. Foster Wheeler LLC, 860
F.3d 249, 258 (4th Cir. 2017); Baker, 962 F.3d at 944 (collecting cases).

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Ohio alleges liability for conduct relating to an act under color of federal office. 28 U.S.C.
§ 1442(a). The PBMs, to begin and to repeat, maximize their leverage by deliberately conducting
a single negotiation on behalf of all of their clients. Dividing the negotiations into federal and non-
federal components, the PBMs argue, might have the reverse effect. They say it might empower
drug companies and pharmacies, it might raise prices, and it might reduce rebates. The complaint
targets both the substance of the negotiations and the rebate-distribution process that follows it.
The conduct that Ohio wishes to regulate thus has a straightforward “connection or association”
with the work that the PBMs perform for the carriers and the Office of Personnel Management to
further the agency’s FEHBA duties. Sawyer, 860 F.3d at 258; see Morales, 504 U.S. at 384;
Willingham, 395 U.S. at 408. Every circuit to look at similar negotiations has reached the same
conclusion. Puerto Rico, 119 F.4th at 190; Hunt, 140 F.4th at 199; see California, 2024 WL
3770326, at *2 (Ikuta, J., concurring only in the judgment).
Ohio offers several responses, all unconvincing. It points out that the Office of Personnel
Management prohibits the PBMs from retaining the rebates they extract from manufacturers.
Because Ohio’s complaint challenges conduct that would independently violate the PBMs’
obligations to the federal government, Ohio argues that the acts at issue could not have occurred
“under color of [federal] office.” 28 U.S.C. § 1442(a)(1). But defendants sued for alleged conduct
contrary to the terms of a federal office still may satisfy the “under color of” prong. See Arizona v.
Manypenny, 451 U.S. 232, 234 (1981). The statute demands a sufficient relation “between the
charged conduct and asserted official authority.” Willingham, 395 U.S. at 409. Nowhere does it
require that the charged conduct itself constitute a lawful exercise of the defendant’s federal
powers. Id.; cf. United States v. Tohono O’Odham Nation, 563 U.S. 307, 313 (2011) (“A person
acts under color of federal law in respect to a cause of action by claiming or wielding federal
authority.”).
Precedent confirms as much. The tax collector on trial in Tennessee v. Davis did not have
discretion to commit murder. See 100 U.S. (10 Otto) at 260. And it is doubtful that the medical
official in Willingham enjoyed contractual or legal authority to inject the plaintiff “with a
deleterious foreign substance” or to “assault[], beat[], and torture[] him in various ways.” 395
U.S. at 409 (quotation omitted). Even under older and narrower versions of the officer-removal

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statute, these cases could remain in federal court. Davis, 100 U.S. (10 Otto) at 272; Willingham,
395 U.S. at 404. Section 1442 gives the defendant a chance to prove in federal court that it lawfully
carried out its federal duties. Acker, 527 U.S. at 433. Conditioning removal on a showing of
federal authorization would force the officer to “win his case before he can have it removed.”
Willingham, 395 U.S. at 407.
Ohio protests that an unduly literal reading of the key phrase would imply nearly every
complaint alleges liability for acts “relating to” federal conduct. True enough, reading “‘relate to’
provision[s]” without limitation runs the risk of “pick[ing] up every ripple in the pond, producing
a result that no sensible person could have intended.” Egelhoff v. Egelhoff ex rel. Breiner, 532
U.S. 141, 152–53 (2001) (Scalia, J., concurring) (quotation omitted). But the same commonsense
principles that limit the phrase in the ERISA and Airline Deregulation Act contexts limit it here.
Conduct with only a “tenuous, remote, or peripheral” relationship to federal activity does not
“relate to” it. Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 100 n.21 (1983). And just as we
“consider[] ERISA’s objectives as a guide to the scope of” preemption, Rutledge v. Pharm. Care
Mgmt. Ass’n, 592 U.S. 80, 86 (2020) (quotation omitted), the text-driven purpose of § 1442
informs the scope of removal. Ohio’s complaint targets the PBMs’ negotiations on behalf of
federal clients, and that conduct bears a far more than “peripheral” relationship to acts under color
of federal office. Morales, 504 U.S. at 390.
Ohio claims that its complaint does not cover federally directed conduct. Before the 2011
amendment to the statute, it is true, the statute referred only to lawsuits “for any act under color of
[federal] office.” 28 U.S.C. § 1442(a) (2010). And we interpreted that text, it is also true, to
require a defendant to point to “acts it performed at the direction of the federal officer.” Bennett,
607 F.3d at 1088. But Congress has expanded § 1442 since then, adding the italicized language:
“for or relating to any act under color of such office.” Conduct thus can “relate to” acts under
color of a federal office without having been federally directed. See Sawyer, 860 F.3d at 258. So,
yes, Ohio is right that the Office of Personnel Management prohibits retention of negotiated
rebates. But, no, Ohio is wrong that any such misconduct lacks an adequate connection to the
negotiations that the PBMs conduct on behalf of the government.

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Colorable federal defense. The PBMs also possess colorable federal defenses. A key
premise of § 1442 is to permit federal defenses to be tried in federal court. Mesa v. California,
489 U.S. 121, 137 (1989). For that reason, defendants need only articulate a colorable federal
defense, not a “clearly sustainable” one. Willingham, 395 U.S. at 407; see City of Nashville v.
Cooper, 73 U.S. (6 Wall.) 247, 254 (1867) (“[The ultimate] validity of the defence authorized . . .
has no connection whatever with the question of jurisdiction.”).
The PBMs present a pair of plausible federal-preemption defenses. Any FEHB plan
contract’s terms that “relate to the nature, provision, or extent of coverage or benefits (including
payments with respect to benefits) shall supersede and preempt any State or local law, or any
regulation issued thereunder, which relates to health insurance or plans.” 5 U.S.C. § 8902(m)(1).
When it last interpreted this preemption provision, the Supreme Court repeated the obvious—“that
the phrase ‘relate to’ in a preemption clause expresses a broad pre-emptive purpose.” Coventry
Health, 581 U.S. at 96 (quotation omitted). Ohio’s complaint states that the PBMs “contract with
commercial health insurers” to “negotiat[e] . . . drug prices, discounts, and other terms of sale with
Manufacturers on [plan sponsors’] behalf.” R.1-3 ¶ 49. Negotiating the prices of the plan’s
prescription drugs colorably “has a connection with,” Egelhoff, 532 U.S. at 147 (quotation
omitted), the “provision[] or extent of coverage or benefits,” 5 U.S.C. § 8902(m)(1), because the
drugs are a benefit. And laws imposing liability on the PBMs for how they negotiate the prices of
the drugs that the plan will cover colorably “ha[ve] a connection with,” Egelhoff, 532 U.S. at 147
(quotation omitted), the plans themselves, Puerto Rico, 119 F.4th at 190.
The same is true for the PBMs’ TRICARE preemption defense. “A law or regulation of a
State or local government relating to health insurance, prepaid health plans, or other health care
delivery or financing methods shall not apply to any contract entered into pursuant to [TRICARE]
by the Secretary of Defense.” 10 U.S.C. § 1103(a). This broad preemptive language likewise
colorably provides the PBMs with a defense against state-law liability in this context. See
Arlington Cnty., 996 F.3d at 253. Every circuit to address the issue has reached the same
conclusion with respect to FEHB and TRICARE. See, e.g., id.; Puerto Rico, 119 F.4th at 190;
Hunt, 140 F.4th at 198–99.

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Ohio’s contrary arguments fail. Ohio suggests that FEHBA does not preempt state laws of
general application. But, in the context of ERISA, the Supreme Court reasoned that such an
argument would create an “irrational loophole” and at any rate “ignores the sweep of the ‘relating
to’ language.” Morales, 504 U.S. at 386. We think it colorable that Ohio’s mirror-image theory
has the same pitfall. See Pilot Life Ins. Co v. Dedeaux, 481 U.S. 41, 47 (1987) (ERISA).
Noting that FEHBA’s preemption provision refers to “law[s]” and “regulation[s],” Ohio
contends that the statute does not preempt its common law claims under Sprietsma v. Mercury
Marine, 537 U.S. 51, 52 (2002). And Ohio’s antitrust statute, the State adds, merely codifies the
common law and thus should fall within the same exception. The analogy does not hold. In
Sprietsma, the Court interpreted the Federal Boat Safety Act of 1971, 46 U.S.C. §§ 4301–11. It
viewed the Boat Act’s reference to “a law or regulation” as “impl[ying] a discreteness . . . that is
not present in the common law.” Sprietsma, 537 U.S. at 63 (emphasis added). FEHBA, by
contrast, refers to “any State or local law.” 5 U.S.C. § 8902(m)(1). “Read naturally, the word
‘any’ has an expansive meaning, that is, ‘one or some indiscriminately of whatever kind.’” United
States v. Gonzales, 520 U.S. 1, 5 (1997) (quoting Webster’s Third New International Dictionary
97 (1976)). Sprietsma, it bears adding, explained that the Boat Act’s savings clause presumes that
common-law liability persists in that area. 537 U.S. at 63. Ohio does not point to such provision
in FEHBA.
Last and least, Ohio claims that the PBMs’ TRICARE preemption argument fails because
the statute’s preemption provision applies only “to the extent that [the Secretary of Defense or
administering secretaries] determine that . . . the preemption of the state law is necessary to
administer [TRICARE].” 10 U.S.C. § 1103(a). Ohio appears to think that the Secretary has not
made the necessary determination. But he has. 32 C.F.R. § 199.17(a)(7)(i)(ii).
Jurisdictional discovery. If all else fails, Ohio requests jurisdictional discovery in the
district court. But the State never moved for any such discovery below. Even now, Ohio bases its
request on evidence that Express Scripts negotiates on behalf of its commercial clients using a
third-party organization. That reality, however, does not undercut the PBMs’ consistent claim that
the conduct Ohio challenges flows from an integrated system that draws on negotiation on behalf
of all of their clients, federal and commercial alike. Because we view the divisibility issue as

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principally a question of legal theory rather than historical fact at all events, discovery would bring
no value to the issue. See Acker, 527 U.S. at 427. We reject the request.
We reverse and remand.

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