Government of Puerto Rico v. EXPRESS SCRIPTS, INC.; CAREMARKPCS HEALTH, LLC; and CAREMARK PUERTO RICO, LLC

United States Court of Appeals
For the First Circuit
No. 23-1612
No. 23-1613
GOVERNMENT OF PUERTO RICO,
Plaintiff, Appellee,
v.
EXPRESS SCRIPTS, INC.; CAREMARKPCS HEALTH, LLC; and CAREMARK
PUERTO RICO, LLC,
Defendants, Appellants,
ELI LILLY AND COMPANY; ELI LILLY EXPORT S.A.; NOVO NORDISK INC.;
SANOFI-AVENTIS U.S., LLC; SANOFI-AVENTIS PUERTO RICO INC.; and
OPTUMRX, INC.;
Defendants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Gelpí, Thompson, and Montecalvo,
Circuit Judges.
Jason R. Scherr, with whom Stephanie Schuster, Patrick A.
Harvey, Lindsey T. Levy, Morgan, Lewis & Bockius LLP, Carlos A.
Valldejuly-Sastre, Ricardo J. Casellas-Santana, and O'Neill &
Borges LLC, were on brief, for appellant Express Scripts, Inc.
A. Joshua Podoll, with whom Enu Mainigi, Craig Singer,
Williams & Connolly LLP, Eduardo A. Zayas-Marxuach, and McConnell
Valdés LLC were on brief, for appellants CaremarkPCS Health, LLC,
and Caremark Puerto Rico, LLC.

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Louis Bograd, with whom Motley Rice LLC, Andrés W. López, and
The Law Offices of Andrés W. López, P.S.C., were on brief for
appellee.
October 18, 2024

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GELPÍ, Circuit Judge. This appeal is about 28 U.S.C.
§ 1442 -- the "federal officer removal statute." This statute
allows private actors to remove a lawsuit against them to federal
court if they demonstrate that (1) they acted under a federal
officer's authority, (2) they carried out the charged conduct in
relation to the asserted official authority, and (3) they possess
a colorable, federal defense against the charged conduct.
§ 1442(a)(1); see Moore v. Elec. Boat Corp., 25 F.4th 30, 34 (1st
Cir. 2022).
The Government of Puerto Rico ("the Commonwealth") sued
pharmaceutical benefit managers ("PBMs") including Express
Scripts, Inc. ("Express Scripts"), CaremarkPCS Health, LLC, and
Caremark Puerto Rico, LLC, ("Caremark," together with Express
Scripts, "PBM Defendants"), and several pharmaceutical
manufacturers1 in the Commonwealth of Puerto Rico Court of First
Instance ("Court of First Instance"). The Commonwealth alleges
that the PBM Defendants schemed to unlawfully inflate insulin
prices through rebate negotiations and price setting. The PBM
Defendants removed to federal court under § 1442(a)(1). They argue
that they served the federal government in negotiating rebates
with pharmaceutical manufacturers and setting prices for drugs and
that the Commonwealth's lawsuit relates to their federal service.
1 These manufacturers are not parties to this appeal.

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But the Commonwealth's complaint claimed not to seek
relief related to the PBM Defendants' federal service. Indeed, it
purported to disclaim all "relief relating to" a federal program
or contract. So, the Commonwealth argues that disclaimer excluded
any claims upon which Express Scripts and Caremark might remove
under § 1442(a)(1). The district court agreed with that argument
and remanded to the Court of First Instance.
This appeal presents a novel issue in our circuit. So
far, the courts to consider the issue as it relates to these PBM
Defendants have reached different conclusions. Compare California
v. CaremarkPCS Health LLC, No. 23-55597, 2024 WL 3770326, at *1
(9th Cir. Aug. 13, 2024) (mem.) (concluding that, in a dispute
between California and these PBM Defendants concerning similar
conduct, a similar disclaimer did "not necessarily defeat
removal"), and Hawai'i ex rel. Lopez v. CaremarkPCS Health, LLC,
No. 23-464, 2024 WL 1907396, at *6-14 (D. Haw. May 1, 2024)
(concluding that Hawai'i's disclaimer did not prevent Caremark
from satisfying § 1442(a)(1)), with West Virginia ex rel. McCuskey
v. Eli Lilly & Co., No. 5:24-cv-143, 2024 U.S. Dist. LEXIS 160669,
at *11-25 (N.D. W. Va. Sept. 6, 2024) (concluding, in part, that
West Virginia's disclaimer successfully excluded claims upon which
Caremark could base removal). It was thus entirely reasonable for
the district court here to fall on the side it did of this
nationally debated issue.

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Ultimately, we chart a different analytical course than
the district court, based upon our reading of the federal officer
removal statute and the relevant jurisprudence. For we recognize
that we must credit Caremark's allegation that it performed the
challenged conduct jointly for private parties and for the federal
government. And if Caremark can properly remove on this basis,
then the entire action belongs in federal court. Despite what the
disclaimer says, it does not foreclose Caremark's assertion that
it performed this indivisible conduct under a federal officer's
authority and are so entitled to colorable federal defenses. To
credit the disclaimer would permit the Commonwealth to recover
based on what, when considered through Caremark's theory of
removal, were acts under a federal officer. The Commonwealth's
attempts at artful pleading cannot serve as an end run around the
federal officer removal statute. Accordingly, we reverse and
remand.
I. BACKGROUND
To set the stage, we outline the pharmaceutical
industry, recount the proceedings below, and, along the way,
summarize the parties' allegations.
A. Pharmaceutical Industry Basics
There are a few key players in the pharmaceutical
industry. There are pharmaceutical manufacturers, who research,
develop, and sell prescription drugs at a certain list price. Of

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course, there are the individuals who pay either cash to the
pharmacy for prescription drugs or premiums to cover their
prescription drug co-pay. Those premiums go to carriers, such as
an employer-sponsored health plan or an insurance company, that
provide health insurance. And then there are PBMs, like Caremark
and Express Scripts. Think of PBMs as "middlemen" between health
care plans, pharmacies, and pharmaceutical manufacturers. They
contract with health plans and carriers to administer prescription
drug benefits, manage drug costs, and negotiate rebates and
discounts from pharmaceutical manufacturers.
As relevant here, PBMs create drug formularies -- lists
of prescription drugs that health plans cover and to which PBMs
designate tiers according to how much consumers owe for a
co-payment. For example, a tier-1 drug would require a $5
co–payment, while a tier-2 drug would require a $10 co-payment,
and so on. Drugs excluded from a PBM's formulary must be purchased
out-of-pocket by consumers, making them a less desirable option in
the marketplace.
Manufacturers accordingly work to ensure that PBMs
include their drugs on formularies. Among other incentives,
manufacturers pay rebates -- post-sale discounts calculated based
on how many consumers fill a prescription for the manufacturers'
drug -- and other fees to PBMs, which in turn keep a portion of
the rebates and fees before passing off the remainder to health

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insurance plans. Rebates coax PBMs to place drugs on their drug
formularies in a preferred tier with a lower cost-share amount,
making a drug more attractive for consumers. The rebate amount is
typically a percentage of the wholesale acquisition cost
("WAC"): the list price for wholesalers and direct purchasers, as
established by prescription drug manufacturers. See 42 U.S.C.
§ 1395w-3a(c)(6)(B). The PBM Defendants claim that this structure
allows PBMs to negotiate for and achieve lower prices on
prescription drugs for their clients.
B. Procedural History
i. Initial Lawsuit
The Commonwealth sued in the Court of First Instance on
January 17, 2023. Its four claims under the Puerto Rican Fair
Competition Act, P.R. Laws Ann. tit. 10, § 259 (2023), center on
the PBM Defendants' alleged deceptive and unlawful activity
concerning how they sell and market drugs. According to the
Commonwealth, the PBM Defendants misrepresented that their
business model reduces prescription drug costs. Rather than
lowering costs, the Commonwealth alleges, the PBM Defendants
schemed to inflate the WAC from 2014 until present, lining their
pockets with more profits and depriving Commonwealth residents of
affordable insulin and other drugs. Since, over that time period,
neither manufacturing nor distribution costs justify the creeping

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increase in drug prices, the Commonwealth faults the PBM
Defendants.
Central to the Commonwealth's claims are the PBM
Defendants' rebate negotiations. The Commonwealth alleges that,
since 2014, the PBM Defendants excluded certain drugs from their
formularies to increase competition and encourage drug companies
to offer higher rebates. The Commonwealth, in other words, accuses
the PBM Defendants of effectively using their leverage as formulary
holders to "sell" that "formulary space to the highest bidding
drug company." To keep up with the rising costs of formulary
space, drug manufacturers in turn had to increase the WAC price.
Those increased costs, the Commonwealth asserts, were then passed
on to the consumers: Because "[m]any consumers' out-of-pocket
payments for insulin are tied to the WAC price, . . . consumers'
out-of-pocket payments increase when the WAC price increases."
And as a result of the jockeying and negotiating between PBMs and
pharmaceutical manufacturers, consumers who use insulin are forced
to switch medications every few years.
At bottom, the Commonwealth alleges that, despite the
PBM Defendants' claims that their rebate practices are helping
consumers, the PBM Defendants are in fact focused on something
else: receiving a higher rebate for themselves. Indeed, the
Commonwealth asserts, the PBM Defendants often choose to include
on their formularies the drugs for which they received the highest

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rebate, excluding otherwise identical -- and more
cost-effective -- drugs.
The Commonwealth seeks to enjoin the PBM Defendants from
engaging in any future unfair and deceptive practices related to
this alleged scheme. The Commonwealth also seeks restitution,
payable to any Commonwealth resident consumer affected by those
practices, along with damages to the Commonwealth in the amount
resulting from increased insulin prices from the scheme.
Crucial to the instant appeal is the following
disclaimer, which the Commonwealth included in its complaint:
The [Commonwealth] is not seeking relief
relating to any federal program (e.g.,
Medicaid, Medicare) or any contract related to
a federal program. Moreover, the
[Commonwealth's] claims do not arise out of a
written contract, but rather are based on the
larger unfair and deceptive scheme that
violates the Fair Competition Act and
increased prices and reduced access to insulin
products for Puerto Rico consumers.
On March 17, 2023, the PBM Defendants removed under
§ 1442(a)(1) to federal court. They each raised separate removal
theories below. However, the statute "authorizes removal of the
entire action even if only one of the controversies it raises
involves a federal officer or agency." Moore, 25 F.4th at 35
(quoting Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 3726 (4th ed. 2021)). So, if either Caremark or
Express Scripts may remove, "the entire case will be deemed

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removable, such that [the Commonwealth's] claims against all other
defendants . . . will be heard in federal court as well." Morgan
v. Huntington Ingalls, Inc., 879 F.3d 602, 606 (5th Cir. 2018);
see Moore, 25 F.4th at 35; Baker v. Atl. Richfield Co., 962 F.3d
937, 945 (7th Cir. 2020). As we explain in detail below, we find
Caremark's arguments persuasive. Because this suffices to
establish federal officer removal, we therefore limit our
discussion and analysis to Caremark's theory of removal.
ii. Caremark
Caremark premises removal on its obligations to carriers
that provide health-insurance benefits to federal government
employees through the Federal Employees Health Benefits Act of
1959 ("FEHBA"), 5 U.S.C. §§ 8901-8914. "FEHBA 'establishes a
comprehensive program of health insurance for federal employees'
and family members covered under their plans." López-Muñoz v.
Triple-S Salud, Inc., 754 F.3d 1, 3 (1st Cir. 2014) (quoting Empire
HealthChoice Assur., Inc. v. McVeigh, 547 U.S. 677, 682 (2006)).
Congress assigned to the Office of Personnel Management ("OPM")
"broad administrative and rulemaking authority over" the FEHBA
program, including authorizing OPM to contract with private
carriers for federal employees' health insurance. Coventry Health
Care of Mo., Inc. v. Nevils, 581 U.S. 87, 91 (2017). OPM's
contracts with private carriers "shall contain a detailed
statement of benefits offered and shall include such maximums,

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limitations, exclusions, and other definitions of benefits as
[OPM] considers necessary or desirable." 5 U.S.C. § 8902(d).
"OPM has direct and extensive control over these
benefits contracts under the FEHBA." Goncalves ex rel. Goncalves
v. Rady Children's Hosp. San Diego, 865 F.3d 1237, 1246 (9th Cir.
2017) (citation omitted). And OPM's standard form contracts assume
that PBMs will contract with FEHBA carriers and receive rebates.
Off. Of Pers. Mgmt., Federal Employees Health Benefits Program
Standard Contract for Experience-Rated Health Maintenance
Organization Carriers I-18-I-20 (2019) ("FEHB Standard Contract"),
https://perma.cc/7EX7-26DB (last visited Sept. 26, 2024). OPM
thus requires FEHBA carriers to impose certain provisions in their
contracts with PBMs concerning rebates, and PBMs must adhere to
these provisions.2 Id. These include:
• submitting quarterly and annual reports concerning negotiated
rebates;
2 We acknowledge that Caremark did not directly contract with
OPM. None of the parties have suggested that this should impact
our analysis of federal officer removal, so the issue is not
squarely before us. We pause to note that "the absence of a direct
contractual relationship with the federal government is not a bar
to removing an action under § 1442(a)(1)." Cnty. Bd. of Arlington
Cnty. v. Express Scripts Pharmacy, Inc., 996 F.3d 243, 254 (4th
Cir. 2021) (emphasis omitted) (concluding that TRICARE
subcontractors were acting under federal authority because the
Department of Defense's contracts with Express Scripts expressly
contemplated the use of subcontractors, the subcontractors were
directly accountable to the Department, and the subcontractors
assisted the Department in fulfilling its governmental task).

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• using "pass-through transparent pricing based on the PBM's
cost for drugs . . . in which the [FEHBA] Carrier receives
the value of the PBM's negotiated . . . rebates";
• crediting carriers "either as a price reduction or by cash
refund the value all [rebates] properly allocated to the
Carrier"; and
• providing OPM with certain information upon request -- such
as the PBM's contracts with pharmacies, manufacturers, and
third parties concerning the sales of claims data.
Id. at I-17-I-19.
Caremark removed because it claims that the
Commonwealth's lawsuit challenges its performance for FEHBA plans
under the FEHBA benefits contracts. Caremark reasons that the
Commonwealth, by seeking to recover for every Commonwealth
resident who purchased insulin at inflated prices, necessarily
seeks to recover for its residents who are federal employees who
receive benefits through FEHBA. That is, Commonwealth residents
who are federal employees bought insulin using health care benefits
from FEHBA carriers, and Caremark collected manufacturer
payments -- subject to the contractual obligations listed above.
Caremark also points out that it does not distinguish
between FEHBA and non-FEHBA clients during negotiations with
manufacturers for rebates -- the rebates were, and still are,
negotiated on behalf of all clients. These joint negotiations
have led to "rebate agreements" between Caremark and the
manufacturer. Caremark reiterates that, from 2014 to the present,

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it did not negotiate separate rebate agreements for its FEHBA and
non-FEHBA clients. And during that time period, the same
agreements governed rebates for insulin paid by manufacturers for
both FEHBA plans and non-FEHBA plans. So whatever rebates Caremark
received were not separated on a plan-by-plan basis.
Accordingly, because the Commonwealth's complaint sought
relief for Commonwealth residents arising from Caremark's actions
and rebate negotiations on behalf of FEHBA plans, Caremark invokes
§ 1442(a)(1). In its notice of removal, Caremark claims that it
negotiated for rebates under FEHBA's statutory regime. Thus, it
insists, the lawsuit necessarily implicated its practices under
FEHBA contracts, which would permit it to assert a colorable
preemption defense. And, according to Caremark, the
Commonwealth's disclaimer does not preclude removal. That was
because it was either impossible to sever what the Commonwealth's
residents paid between Caremark's negotiations for FEHBA versus
non-FEHBA plans or at least premature to speculate on whether the
Commonwealth's injury could be divided this way. In other words,
the disclaimer does not foreclose the possibility that the
Commonwealth would seek to recover for Caremark's actions to assist
the federal government with administering FEHBA.
iii. Removal Proceedings
The Commonwealth moved to remand. It argued that its
disclaimer eliminates any "legal basis for federal officer

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removal" and clarified that it would "categorically exclude[]"
relief "relating to" FEHBA.
The district court remanded based on that disclaimer.
The district court deduced that, because the Commonwealth's
disclaimer limits its potential recovery to harms stemming from
the PBM Defendants' actions for non-federal programs and
contracts, the PBM Defendants cannot claim that they acted under
a federal officer's authority for their non-federal PBM services.
It, furthermore, rejected the PBM Defendants' indivisibility
arguments "because relief would be strictly limited to non-federal
health insurance plans." And it cautioned that accepting the PBM
Defendants' argument would mean that parties that work on behalf
of private and federal entities could remove even if their federal
work were not at issue. Furthermore, the district court was "not
persuaded that dividing the work done by [the PBM] Defendants on
behalf of the federal government from the work done for its private
clients [was] not possible in this case."
PBM Defendants appealed.3 We have jurisdiction under 28
U.S.C. § 1447(d).
3 On August 29, 2023, we denied Caremark's emergency motion
to stay the district court's remand order pending appeal and
Express Script's motion to recall the remand pending appeal. See
Order, Gov't of P.R. v. Express Scripts, Inc., No. 23-1612 (1st
Cir. Aug. 29, 2023).

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II. DISCUSSION
A. Standard of Review
"We review de novo the district court's jurisdictional
determination on removal. Where the district court resolves
disputed issues of fact, we review those factual findings for clear
error." Moore, 25 F.4th at 34 (citations omitted). In reviewing
a ruling on a motion to remand, we ask "whether federal
jurisdiction exist[ed]" as "cabined by the notice of removal."
López-Muñoz, 754 F.3d at 4 (first citing BIW Deceived v. Local S6,
Indus. Union of Marine & Shipbuilding Workers, 132 F.3d 824, 830
(1st Cir. 1997); and then citing Ervast v. Flexible Prods. Co.,
346 F.3d 1007, 1012 n.4 (11th Cir. 2003)). Accordingly, the
removing parties bear the burden of showing federal officer
jurisdiction as pleaded in their notice of removal. See Moore, 25
F.4th at 34; Ervast, 346 F.3d at 1012 n.4. In reviewing whether
the removing party met its burden, Courts must "credit" that
party's "theory of the case" for why removal under § 1442(a)(1)
was appropriate. Jefferson Cnty. V. Acker, 527 U.S. 423, 432
(1999); see Agyin v. Razmzan, 986 F.3d 168, 175 (2d Cir. 2021).

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B. Federal Officer Removal Statute
i. Statutory Background
Section 1442(a)(1) permits a "person"4 to remove "[a]
civil action . . . commenced in a State5 court . . . that is
against" that person if that person is an "officer (or any person
acting under that officer) of the United States or of any agency
thereof" and is sued "in an official or individual capacity, for
or relating to any act under color of such office." § 1442(a)(1)
(footnote added). Congress passed and refined the statute over
time to shield the federal government and those assisting it from
state interference "that would ensue were a State able, for
example, to 'arres[t]' and bring 'to trial in a State cour[t] for
an alleged offense against the law of the State,' 'officers and
agents' of the Federal Government 'acting . . . within the scope
of their authority.'" Watson v. Philip Morris Cos., 551 U.S. 142,
150 (2007) (alterations in original) (quoting Willingham v.
Morgan, 395 U.S. 402, 406 (1969)); Willingham, 395 U.S. at 405
("Obviously, the removal provision was an attempt to protect
federal officers from interference by hostile state courts.").
4 A "person" includes a corporation and a limited liability
company, such as Express Scripts and Caremark. Goncalves, 865
F.3d at 1244.
5 Section 1442(a)(1) permits removal from the Court of First
Instance. See 48 U.S.C. § 864; Camacho v. Autoridad de Teléfonos
de P.R., 868 F.2d 482, 486 n.4 (1st Cir. 1989).

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Section 1442(a)(1) thus "represent[s] a
legislatively-spawned value judgment that a federal forum should
be available when particular litigation implicates a cognizable
federal interest." Camacho, 868 F.2d at 487. And it must be
"liberally construed to give full effect" to this purpose, Colorado
v. Symes, 286 U.S. 510, 517 (1932), that is, "to ensure a federal
forum in any case where a federal official" or private actors
acting on that official's behalf may "raise a defense arising out
of his official duties," Arizona v. Manypenny, 451 U.S. 232, 241
(1981) (emphasis added). Accordingly, "the policy favoring
removal 'should not be frustrated by a narrow, grudging
interpretation of § 1442(a)(1).'" Id. at 242 (quoting Willingham,
395 U.S. at 407).
As we mentioned above, if a single defendant properly
removes under § 1442, the entire action, with all defendants, must
be removed to federal court. See, e.g., Ely Valley Mines, Inc. v.
Hartford Acc. & Indem. Co., 644 F.2d 1310, 1315 (9th Cir. 1981)
(declining to consider whether all defendants joined in removal
petition where federal officer was entitled to remove the entire
action); Wisconsin v. Schaffer, 565 F.2d 961, 964 (7th Cir. 1977)
(acknowledging that "when an action is pending in a state court
against a number of defendants, only one of whom is a federal
officer, sued on account of an official act, removal at the
instance of the federal officer removes the entire action with all

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defendants"); Iowa Pub. Serv. Co. v. Iowa State Com. Comm'n, 407
F.2d 916, 918 n.3 (8th Cir. 1969) (noting the same); Allman v.
Hanley, 302 F.2d 559, 562 (5th Cir. 1962) (explaining that entire
case was removed "as to all parties" where Army officials were
entitled to remove under § 1442(a)); Bradford v. Harding, 284 F.2d
307, 310 (2d Cir. 1960) (explaining policy reasons for allowing
one federal officer defendant to remove regardless of whether
co-defendants consent).
ii. Three-Part Test
To avail itself of § 1442(a)(1), a removing party must
establish three elements: (1) "that it was acting under a federal
officer's authority," (2) "that the charged conduct was carried
out for or relating to the asserted official authority," and (3)
"that it will assert a colorable federal defense to the suit."
Moore, 25 F.4th at 34 (internal quotation marks and citations
omitted).
"The words 'acting under' are broad," and, like the rest
of the statute, "must be 'liberally construed.'" Watson, 551 U.S.
at 147 (quoting Symes, 286 U.S. at 517). "'[A]cting under' a
federal officer . . . contemplate[s] a relationship where the
private party engages in an effort 'to assist, or to help carry
out, the duties or tasks of the federal superior'" and "typically
involves 'subjection, guidance, or control.'" Moore, 25 F.4th at
34 n.3 (quoting Watson, 551 U.S. at 151-52). For example, a

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private contractor that "help[s] the Government to produce an item
it needs" and thus "helps officers fulfill other basic governmental
tasks" may remove because it assists with a governmental function
that the government "itself would have had to perform." Watson,
551 U.S. at 153-54; see Papp v. Fore-Kast Sales Co., 842 F.3d 805,
812-13 (3d Cir. 2016). On the other hand, a private entity that
merely complies with federal regulations does not act under a
federal officer's authority because "simple compliance with the
law" does not assist the government in the same way. Watson, 551
U.S. at 153.
The defendant must also carry out the charged conduct
"'for or relating to' the asserted official authority." Moore, 25
F.4th at 34. "Relating to," as it is used in § 1442(a)(1), means
"in 'association with or connection with.'" Id. at 35 n.4 (quoting
Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383-84
(1992)). Congress amended § 1442(a)(1) to add "or relating to"
because it wished to "broaden the universe of acts that enable
Federal officers to remove [suits] to Federal court." H.R. Rep.
No. 112-17, at 6 (2011). Accordingly, we, along with our sister
circuits, "have consistently given this requirement a broad
reading." Moore, 35 F.4th at 35 (first citing Latiolais v.
Huntington Ingalls, Inc., 951 F.3d 286, 292-96 (5th Cir. 2020) (en
banc); and then citing Sawyer v. Foster Wheeler LLC, 860 F.3d 249,
258 (4th Cir. 2017)).

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Section 1442(a)(1) finally requires that a defendant
raise a "colorable federal defense," which "need not be 'clearly
sustainable.'" Moore, 25 F.4th at 37 (quoting Willingham, 395
U.S. at 407). Rather, when determining whether removal is
appropriate, courts need ask only whether a defense is colorable,
not indisputable. Cf. Bennett v. MIS Corp., 607 F.3d 1076, 1090-91
(6th Cir. 2010). "[A] federal defense is colorable unless it is
'immaterial and made solely for the purpose of obtaining
jurisdiction' or 'wholly insubstantial and frivolous.'" Moore, 25
F.4th at 37 (quoting Latiolais, 951 F.3d at 297). Thus, to remove,
the defense need not be a lawsuit's defining feature; if it is a
single "ingredient in the mass," then it is "decisive upon the
subject of jurisdiction." Mesa v. California, 489 U.S. 121, 129
(1989) (emphasis omitted) (quoting Mayor v. Cooper, 73 U.S. 247,
252 (1867)).
iii. Disclaimer Doctrine
To prevent a defendant from removing under the federal
officer removal statute, plaintiffs often disclaim in their
complaint claims that would serve as the basis for removal.6 See
St. Charles Surgical Hosp. v. La. Health Serv. & Indem. Co., 990
6 Many cases examining § 1442(a)(1) disclaimers in detail are
unpublished district court decisions. The parties directed us to
these cases in their arguments. And the district court relied on
these authorities, which was understandable given, at that time,
the dearth of circuit case law on the subject.

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F.3d 447, 451 (5th Cir. 2021). In other contexts, "federal courts
[have] permit[ted] individual plaintiffs, who are the masters of
their complaints, to avoid removal to federal court, and to obtain
a remand to state court," by refusing to bring a removable claim.
Standard Fire Ins. Co. v. Knowles, 568 U.S. 588, 595 (2013)
(considering this principle as it related to a plaintiff's attempt
to stipulate, prior to class certification, that he, and the class
he sought to represent, would not seek damages in excess of $5
million in the aggregate in an effort to avoid jurisdiction under
28 U.S.C. § 1332(d)(2)); cf. Connectu, LLC v. Zuckerberg, 522 F.3d
82, 93 (1st Cir. 2008) (noting that a plaintiff "has the power to
'decide what law [it] will rely upon'" and may forgo causes of
action (alteration in original) (quoting The Fair v. Kohler Die &
Specialty Co., 228 U.S. 22, 25 (1913))).
The federal district courts that have analyzed this
"disclaimer doctrine" in detail generally distinguish between two
categories of § 1442(a)(1) disclaimers: (1) "express disclaimers
of the claims that serve as the grounds for removal"; and (2) mere
"artful pleading for purposes of circumventing federal officer
jurisdiction." Dougherty v. A O Smith Corp., No. 13-1972, 2014 WL
3542243, at *10 (D. Del. July 16, 2014); see St. Charles Surgical
Hosp., 990 F.3d at 451.
To defeat removal, an express disclaimer must
"explicitly renounce[] claims" "upon which federal officer removal

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was based." Batchelor v. Am. Optical Corp., 185 F. Supp. 3d 1358,
1363-64 (S.D. Fla. 2016) (first quoting Hayden v. 3M Co., No.
15-2775, 2015 WL 4730741, at *3 (E.D. La. Aug. 10, 2015); and then
quoting Dougherty, 2014 WL 3542243, at *10). If a plaintiff
renounces such claims, then a defendant is not entitled to "a
federal forum" in which "to raise a defense arising out of his
official duties," Manypenny, 451 U.S. at 241, "because such a
defense pertains to claims that simply do not exist," Batchelor,
185 F. Supp. 3d at 1364 (internal quotation marks and citation
omitted). Accordingly, a valid disclaimer must eliminate any basis
for federal officer removal so that, upon remand, there is no
possibility that a state court would have to determine whether a
defendant acted under a federal officer's authority. See, e.g.,
id. (remanding because the disclaimer of claims arising out of the
plaintiff's exposure to asbestos while aboard naval ships meant
that the defendant could not "assert a colorable federal defense
based on government contractor immunity"); Kelleher v. A.W.
Chesterton Co., No. 15-CV-893, 2015 WL 7422756, at *3 (S.D. Ill.
Nov. 23, 2015) (same, when the plaintiff disclaimed claims from
asbestos exposure from specific federal military property and
during certain years of his military service).
Thus, disclaimers that "clearly carve[] out certain
factual bases, whether by time span or location, such that any
alleged injury could not have happened under the direction of a

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federal officer" will prevent removal. Lopez, 2024 WL 1907396, at
*11 (quoting O'Shea v. Asbestos Corp., No. 3:19-cv-127, 2019 WL
12345572, at *7 (D.N.D. Dec. 13, 2019)). For instance, consider
a plaintiff who disclaims any claims that arise from a location
owned and operated by the federal government. The plaintiff then
sues a defendant for the defendant's conduct on private property
divorced from the work that it performed for a federal officer.
See Dougherty, 2014 WL 3542243, at *1. The defendant thus could
not raise a colorable federal defense arising from its private
conduct, so § 1442(a)(1) would not be a proper basis for removal.
See Fisher v. Asbestos Corp., No. 2:14-cv-2338, 2014 WL 3752020,
at *3 (C.D. Cal. July 30, 2014); Batchelor, 185 F. Supp. 3d at
1364-65.
Distinct from express disclaimers are those that amount
to "artful pleading." These disclaimers are never credited and
come in a few varieties. First, there are those in which "the
'applicability [of the disclaimer] turns on the core question of
whether a defendant's alleged [unlawful behavior] was required or
caused by their relationship with the federal government.'"
Healthcare Venture Partners, LLC v. Anthem Blue Cross & Blue
Shield, No. 1:21-cv-29, 2021 WL 5194662, at *7 (S.D. Ohio Nov. 8,
2021) (quoting Martincic v. A.O. Smith Corp., No. 2:20-cv-958,
2020 WL 5850317, at *3 (W.D. Pa. Oct. 1, 2020)). These disclaimers
are considered "circular" because, if permitted, they would "force

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federal contractors to prove in state court that they were acting
under the direction of the government," Marley v. Elliot
Turbomachinery Co., 545 F. Supp. 2d 1266, 1275 (S.D. Fla. 2008),
undermining a defendant's right "to have the validity of the
defense of official immunity tried in a federal court," Willingham,
395 U.S. at 407. A disclaimer that requires a state court to
determine the nexus "between the charged conduct and federal
authority" is not a valid means of precluding removal. Id. at
409; see St. Charles Surgical Hosp., 990 F.3d at 451 (citing
Marley, 545 F. Supp. 2d at 1274-75).
Second, and equally as ineffective, are waivers that
"disavow[] claims based on a defendant's acts or omissions carried
out under color of office, but the plaintiff, nonetheless, s[eeks]
to recover based on a defendant's official acts." Batchelor, 185
F. Supp. 3d at 1363 (citations omitted). These disclaimers serve
as an attempted end run around the federal officer removal statute,
"depriv[ing] the federal officer of the right" to have their
immunity litigated in federal court. In re Asbestos Prods. Liab.
Litig. (No. VI), 770 F. Supp. 2d 736, 740-42 (E.D. Pa. 2011)
(declaring ineffective a disclaimer excluding claims "caused by
the acts or omissions of defendants committed at the specific and
proven direction of an officer of the United States government
acting in his official capacity" because "the only claims alleged
against Defendant arise[] from exposure on U.S. Naval ships at

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U.S. Naval shipyards"). Therefore, courts must determine whether,
despite the disclaimer, the facts of the case make it likely that
the plaintiff will hold a defendant liable for its official acts
for which it possesses a colorable federal defense. Such a
disclaimer will not foreclose removal. See, e.g., Reinbold v.
Advanced Auto Parts, Inc., No. 18-cv-605, 2018 WL 3036026, at *2
(S.D. Ill. June 19, 2018) (collecting cases).
C. Application
As we previewed above, we consider whether the
disclaimer in the Commonwealth's complaint prevented Caremark from
removing under § 1442(a)(1).7 The Commonwealth argues that its
7 The Commonwealth argues that the PBM Defendants, as private
parties, bear a heightened burden to establish the statute's
applicability. In the Commonwealth's view, the policies
warranting removal for federal officers do not apply with equal
force to private parties acting under a federal officer's
authority. We are unpersuaded. The statute permits "any person
acting under" a federal officer to remove. § 1442(a)(1) (emphasis
added). It does not distinguish between private and government
actors. And the Supreme Court has long recognized that private
parties may remove without imposing a heightened burden. See
Maryland v. Soper, 270 U.S. 9, 30 (1926) (noting that a private
person acting "as a chauffeur and helper to the four officers under
their orders" had "the same right to the benefit of" removal as
the federal officers but denying removal on other grounds); Davis
v. South Carolina, 107 U.S. 597, 600 (1883) ("[T]he protection
which the law thus furnishes to the marshal and his deputy[] also
shields all who lawfully assist him in the performance of his
official duty."). We thus reject the Commonwealth's "narrow,
grudging interpretation of § 1442(a)(1)." Manypenny, 451 U.S. at
242 (internal quotation marks and citations omitted); see Papp v.
Fore-Kast Sales Co., 842 F.3d 805, 812-13 (3d Cir. 2016) (reversing
remand to state court where district court required government
contractor to satisfy a "special burden" to establish that it acted
under federal authority).

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disclaimer eliminated any basis for federal officer removal. As
it clarified at oral argument, the Commonwealth believes that its
disclaimer made it so that the PBM Defendants could not claim that
they (1) acted under a federal officer or (2) possessed colorable
federal defenses.8 See § 1442(a)(1). The district court concluded
similarly. We thus consider whether the disclaimer prevented
Caremark from proving either requirement. We hold that it did
not.
The Commonwealth's complaint disclaimed any "relief
relating to any federal program . . . or any contract related to
a federal program." The district court found this valid because
it purportedly limited the Commonwealth's recovery to non-federal
programs, a swath of claims that, the district court believed,
would not require a state court to adjudicate whether the PBM
Defendants acted on behalf of a federal officer. So, the district
court concluded, the PBM Defendants could not claim that their
8 The Commonwealth stated at oral argument that even with the
disclaimer, it was "prepared to concede" that how Caremark
conducted its negotiations was "for or related to" their federal
obligations. And it does not argue in its brief that the
disclaimer somehow eliminated any connection between the PBM
Defendants and the federal government. The district court
mentioned in passing that it did not see how the PBM Defendants'
allegedly "non-federal" actions eliminated the "causal connection"
between their actions and federal authority. But, given the
Commonwealth's apparent concession, we see no need to address the
element as it relates to the adequacy of the disclaimer. Still,
to assure ourselves of subject–matter jurisdiction, we address the
"for or related to" element to evaluate Caremark's prospect of
removal absent the disclaimer.

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work "with respect to non-federal contracts" were on behalf of a
federal officer or raised a colorable federal defense.
In reaching this conclusion, the district court
disagreed with Caremark that it was "not possible" to divide its
services between whether they were for the federal government or
non-federal healthcare plans. However, the indivisibility of
those services is an important facet of Caremark's "theory of the
case" that must be "credit[ed]" in evaluating removal. Acker, 527
U.S. at 432.
Under the federal officer removal statute, a federal
court examines the notice of removal's well-pleaded allegations to
see if the removing party has demonstrated "an adequate threshold
showing" for removal. Id. Part of that task includes
"credit[ing]" that party's "theory of the case" for removal. Id.;
see Agyin, 986 F.3d at 175. To the extent the parties raise
factual disputes about the scope of a defendant's federal
obligations, Congress gave federal officers "the protection of a
federal forum" in which to resolve those disputes. Willingham,
395 U.S. at 407.
As we explain in more detail below, Caremark premised
removal on its theory that its PBM services for FEHBA were
indivisible from its PBM services for private entities. In this
way, Caremark alleged that it performed the charged conduct on
behalf of a federal officer. Concluding that Caremark's actions,

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nevertheless, can be so divided contradicted Caremark's theory of
the case and resolved whether the challenged acts were outside the
scope of its official duties. The district court's role at this
early stage is to credit that theory because federal officers
"should have the opportunity to present their version of the facts"
on disputes at the heart of their federal service to a federal
court. Id. at 409 (noting that, when the plaintiff's allegation
that federal officers were on a "frolic" and not entitled to
federal immunity contradicted the officers' assertions, a federal
court should retain the case under § 1442(a)(1)). Thus, we credit
Caremark's theory of the case -- that its work for private clients
was indivisible from its work for the federal government due to
the structure of its rebate negotiations -- while evaluating the
disclaimer.
Before addressing the effectiveness of the
Commonwealth's disclaimer, we briefly consider Caremark's case for
removal under § 1442(a)(1) absent the disclaimer. Cf. One & Ken
Valley Hous. Grp. v. Me. State Hous. Auth., 716 F.3d 218, 224 (1st
Cir. 2013) (noting our "obligation to inquire into our
subject[–]matter jurisdiction sua sponte"). Recall that the
Commonwealth blames Caremark's rebate negotiations for insulin
prices' upward rise over the years. The Commonwealth claims that
these negotiations were part of a larger scheme between Caremark
and manufacturers to inflate insulin prices. This charged conduct

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is related to acts Caremark performed under OPM's authority. When
Caremark negotiates rebates on behalf of FEHBA carriers, it assists
OPM in carrying out its official task of administering federal
health benefits. See Goncalves, 865 F.3d at 1249 (concluding that
FEHBA carriers act under OPM when pursuing subrogation claims);
Lopez, 2024 WL 1907396, at *9 (concluding that Caremark acted under
federal officer with respect to "its formulary and rebate
practices"). As we have explained, OPM dictates several
contractual provisions that Caremark must adhere to in entering
these rebate agreements -- requiring Caremark to file regular
statements about whatever rebates it received, credit carriers for
rebates where appropriate, and provide OPM with information
related to its rebate agreements. FEHBA Standard Contract at
I-16-I-20. These contractual obligations demonstrate that OPM
exercised detailed supervision and monitoring over Caremark's
provision of PBM services to FEHBA carriers, such that Caremark
was acting under federal authority when it negotiated rebates.
See Lopez, 2024 WL 1907396, at *7-9.
Caremark also possesses a colorable federal defense for
its negotiations on behalf of FEHBA carriers. FEHBA contains an
express preemption provision, which states that "[t]he terms of
any [FEHBA] contract" relating to "benefits . . . preempt any

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State or local law."9 5 U.S.C. § 8902(m)(1). Caremark might raise
FEHBA preemption for liability for rebate negotiations that follow
"[t]he terms of any [FEHBA] contract," id., which is "not [a]
'wholly insubstantial and frivolous'" defense, Moore, 25 F.4th at
37 (quoting Latiolais, 951 F.3d at 297); see, e.g., Jacks v.
Meridian Res. Co., LLC, 701 F.3d 1224, 1235 (8th Cir. 2012)
(finding the same defense colorable), abrogated on other grounds
by BP P.L.C. v. Mayor & City Council of Balt., 593 U.S. 230 (2021).
It is entitled to have a federal court weigh in on the validity of
that defense.
The Commonwealth's position is that it disclaims "relief
relating to any federal program," including FEHBA, which it argues
negates Caremark's ability to satisfy the "acting under" and
"colorable federal defense" elements. Caremark, however, alleges
that it negotiates for rebates jointly for its FEHBA-based and
non-FEHBA carriers. And those negotiations lead to rebate
agreements, which do not distinguish between FEHBA and non-FEHBA
plans. Considering the level of OPM's involvement in what
provisions these rebate agreements must contain, holding Caremark
liable for its role in the scheme to inflate insulin prices
necessarily includes holding Caremark liable for its
9 This provision does not itself confer jurisdiction through
complete preemption. See López-Muñoz, 754 F.3d at 5-7. But
complete preemption is distinct from defensive preemption, which
we address as a potential "colorable" defense.

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negotiations -- negotiations that are at least in part for FEHBA
plans, carried out pursuant to OPM's detailed requirements.
Once we credit these allegations and theory of the case
"for purposes of . . . our jurisdictional inquiry," Acker, 527
U.S. at 432, the disclaimer was not effective to prevent removal.
Rather, the disclaimer would permit the Commonwealth to recover
"based on [Caremark's] official acts." Batchelor, 185 F. Supp. 3d
at 1363 (citations omitted). That is so for three interrelated
reasons.
First, by targeting Caremark's rebate negotiations while
disclaiming any "relief relating to a federal program" or contract,
the Commonwealth necessarily targets what Caremark alleges are
"act[s] under" a federal officer's authority. See Moore, 25 F.4th
at 34. After all, Caremark alleged that it negotiates for rebates
with manufacturers simultaneously for FEHBA and non-FEHBA plans;
there are no "FEHBA-only" negotiations. And Caremark alleged that
when it negotiated for rebates during the period relevant to the
instant dispute, its negotiations led to rebate agreements that
covered both types of plans. So, if Caremark is liable for its
conduct in negotiating rebates for private clients and FEHBA plans,
then it could be liable for its conduct under OPM's direction -- no
matter what the disclaimer says. See, e.g., CaremarkPCS Health
LLC, 2024 WL 3770326, at *2 (Ikuta, J., concurring) (noting that
"no disclaimer, however worded," could prevent removal because

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Caremark "engages in a single rebate negotiation" for its "private
clients and the federal government," so California's theory of
liability "necessarily" made Caremark liable for negotiating
rebates on behalf of FEHBA plans). Simply put, Caremark alleges
that when it negotiates rebates as OPM's contractual provisions
demand, it assists the federal government with a task that the
government would otherwise have to perform itself: administering
federal health benefits for federal employees through FEHBA.
Lopez, 2024 WL 1907396, at *7-9 (concluding that Caremark "acts
under" OPM when it negotiates for rebates); cf. Goncalves, 865
F.3d at 1245 (finding that FEHBA carrier "acted under" OPM in
pursuing subrogation claims because it assisted OPM with
administering federal health benefits and its OPM-negotiated
contracts included provisions contemplating subrogation); Ray v.
Tabriz, 110 F.4th 949, 957-58 (7th Cir. 2024) (same). And the
Commonwealth's lawsuit -- by targeting those
negotiations -- therefore implicates Caremark's work "carried out
for" OPM "authority." Moore, 25 F.4th at 34 (internal quotation
marks and citations omitted).
Second, because these negotiations allegedly cannot be
disassembled, crediting the disclaimer would foreclose Caremark's
right to have a federal court evaluate its "colorable" preemption
defense under FEHBA's express preemption provision. § 8902(m)(1).
Despite the Commonwealth's artful pleading, its claims necessarily

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involve Caremark's rebate negotiations within OPM's
parameters -- such as remitting those rebates in full to FEHBA
plans. In other words, because a single rebate negotiation may
have involved both FEHBA and non-FEHBA plans, even when the
Commonwealth seeks relief on behalf of a Puerto Rico resident that
is covered by a non-FEHBA private carrier, Caremark may have a
colorable federal defense that it acted in compliance with the
terms of its FEHBA contracts when conducting negotiations on behalf
of the private carrier.
Third, crediting the disclaimer would undercut
§ 1442(a)(1)'s requirement that federal courts determine whether
a defendant acted under a federal officer's authority. The
disclaimer forgoes relief "relating to any federal program," but
Caremark claims that it negotiates for FEHBA and non-FEHBA plans
in one fell swoop. Given this purported indivisibility, the
Commonwealth's recovery for how Caremark's rebate negotiations
drove insulin prices upward means that the Commonwealth could
recover in the Court of First Instance for Caremark's acts under
a federal officer's authority. That would deprive Caremark of the
federal forum to which it is entitled. Cf. Despres v.
Ampco-Pittsburgh Corp., 577 F. Supp. 2d 604, 608 (D. Conn. 2008)
(rejecting a disclaimer where the plaintiffs purported to exclude
all federal claims but sought to recover for asbestos exposure
related to the defendant's work for the Navy).

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It is thus possible for the Commonwealth "to recover
based on" Caremark's "official acts" despite the disclaimer.
Batchelor, 185 F. Supp. 3d at 1363. True, the disclaimer tries to
disavow recovery "relating to federal programs" and contracts.
But the Commonwealth seeks damages based on Caremark's rebate
negotiations, even though Caremark negotiates for FEHBA and
non-FEHBA plans simultaneously. Thus, the Commonwealth seeks to
hold Caremark liable for acts that appear to otherwise entitle it
to removal despite the disclaimer. See, e.g., In re Asbestos
Prods. Liab. Litig., 770 F. Supp. 2d at 741-42.
We do not believe it possible to divide Caremark's
federal and non-federal work to enforce the disclaimer for two
reasons. First, we must "credit" Caremark's "theory of the case"
for removal. Acker, 527 U.S. at 432. We have explained why that
means that we shall consider its work indivisible at this early
juncture. Second, under Caremark's removal theory as "cabined by
the notice of removal," López-Muñoz, 754 F.3d at 4, Caremark
conducts one negotiation, and the Commonwealth would hold Caremark
liable because this negotiation allegedly inflated insulin prices.
Caremark claims to have performed its actions simultaneously for
private clients and the federal government, invoking a colorable
preemption defense. This defense's presence is "decisive upon the
subject of jurisdiction." Cooper, 73 U.S. at 252. Crediting the
disclaimer thus would trample a "primary purpose[]" of

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§ 1442(a)(1): "to have such defenses litigated in the federal
courts." Willingham, 395 U.S. at 407.
To get around this impasse, the Commonwealth promises to
"remove claims relating to . . . FEHBA" and disavow restitution,
civil penalties, disgorgement, and injunctive relief relating to
the same. This promise does not address the problem. The
Commonwealth claims that how Caremark negotiated rebates inflated
insulin prices. But this "charged conduct," Moore, 25 F.4th at
34, is alleged to be indivisibly federal and non-federal. Even
with the Commonwealth's promise to tailor its relief, its theory
of liability premised on the negotiations make it possible that it
will recover for work that Caremark claims to have "carried out"
for the federal government. Id.
The Commonwealth relies on location-based disclaimer
cases to support remand. In its view, claims not related to a
federal program are as "discrete and readily identifiable" as
claims that do not arise on federal property.
We are not persuaded. When a plaintiff disclaims claims
arising from their injuries on federal property, the plaintiff's
remaining claims presumably arise from their injuries on private
property and are disconnected from the defendant's work for the
federal government. See Dougherty, 2014 WL 3542243, at *1. A
defendant cannot claim that it acted for a federal officer and is
entitled to federal immunity in that scenario. See id. at *8-10;

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cf. Illinois ex rel. Raoul v. 3M Co., 111 F.4th 846, 849 (7th Cir.
2024) (affirming motion to remand where the State "expressly agreed
that a factfinder would not need to apportion" PFAS contamination
between federal and non-federal sources so that "for the State to
recover . . . 100% of that contamination must be sourced from the
[non-federal] facility"). These disclaimers eliminate a
defendant's colorable federal defense, so there is no concern that
the defendant would be forced to litigate such a defense in state
court. See Raoul, 111 F.4th at 849 (noting that the disclaimer
made the manufacturer's federal defense "wholly irrelevant under
the State's theory of recovery").
The disclaimer here does not assuage that concern. Based
on the allegedly indivisible nature of Caremark's negotiations,
the Commonwealth's "alleged injury could . . . have happened under
the direction of a federal officer," presenting a colorable federal
defense. Lopez, 2024 WL 1907396, at *11. And we have explained
why this means that a federal court would lose the opportunity to
adjudicate that defense -- a result that the federal officer
removal statute prohibits. Location-based disclaimer cases are
dissimilar.
The district court was also troubled by the consequences
of Caremark's indivisibility argument. It believed that the
argument's "logical end" would permit "any organization that
contracts with the government" to remove "if any portion of [its]

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work" is for "both private and government organizations, even if
the government services are not at issue." We can appreciate why
this possibility concerned the district court.
But recognizing the indivisibility problem here will not
permit every private entity contracting with the federal
government to remove. Government contractors may only remove when
their relationship with the government "is an unusually close one
involving detailed regulation, monitoring, or supervision."
Watson, 551 U.S. at 153. For example, a contractor is unlikely to
meet the "acting under" requirement if it sells the government an
off-the-shelf commercial product or its relationship with the
government is a typical, arms-length business deal. See, e.g.,
City & Cnty. of Honolulu v. Sunoco LP, 39 F.4th 1101, 1108-09 (9th
Cir. 2022) (concluding that private companies' repayment of
offshore leases and operation of strategic petroleum reserve was
not performed under federal authority where companies acted
independently and established only "a typical commercial
relationship" with the government); Att'y Gen. of N.J. v. Dow Chem.
Co., No. 23-cv-02449, 2024 WL 1740087, at *5-9 (D.N.J. Apr. 23,
2024) (rejecting defendant's argument that it acted under federal
authority by supplying government with chemicals because it sold
substantially similar products to private parties). Nor may a
defendant remove when confronted with a location-based disclaimer
that limits the plaintiff's claims to those arising only on private

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property and which do not concern that defendant's work for a
federal officer. See, e.g., Fisher, 2014 WL 3752020, at *3
(granting remand premised on a disclaimer that limited claims to
the plaintiff's "exposure to asbestos in civilian work
environments" because denying remand "would affirm [the
defendant's] right to assert a defense against a claim that does
not exist").
But that is not so here. The Commonwealth's disclaimer
failed to address Caremark's allegation that its service for the
federal government is indivisible from its service for private
clients. The federal officer removal statute was designed to
afford a federal forum to those private actors who, as alleged
here, help the federal government carry out its duties -- even if
those actors perform the same service jointly for the federal
government and private entities. The disclaimer did not
acknowledge this potential indivisibility and cannot halt removal.
In sum, we credit Caremark's theory of the case that its
federal and non-federal work is indivisible based on the way it
negotiates rebates for the federal government and private clients
simultaneously, and advise district courts prospectively to so
credit the removing parties' theory of removal under § 1442(a)(1).
Analyzing Caremark's argument for removal absent the disclaimer,
we hold that it satisfies Section 1442(a)(1)'s three-part test.
Because of this alleged indivisibility, the disclaimer did not

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foreclose Caremark's arguments that it acted under a federal
officer and possess colorable federal defenses. In this way, the
disclaimer did not eliminate the possibility that the Commonwealth
would recover for Caremark's official acts. The disclaimer
therefore did not justify remand.
The district court remanded because it credited the
Commonwealth's disclaimer. Although we do not reach the same
conclusion, we "commend the district court for attempting to parse
out [the] limited jurisprudence" on the disclaimer doctrine (while
managing ably without any First Circuit precedent on the subject).
Walsh v. Unitil Serv. Corp., 64 F.4th 1, 5 (1st Cir. 2023). This
opinion shall hopefully clarify how district courts in our circuit
should analyze similar disclaimers.
III. CONCLUSION
For the reasons stated, we reverse and remand. The
district court shall order the removed case returned from the Court
of First Instance. Costs are awarded to Express Scripts and
Caremark.

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