Attorney General of the State of New Jersey v. the Dow Chemical Company

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 24-1753
______________
ATTORNEY GENERAL OF THE STATE OF NEW
JERSEY; NEW JERSEY DEPARTMENT OF
ENVIRONMENTAL PROTECTION; THE
COMMISSIONER OF THE NEW JERSEY DEPARTMENT
OF ENVIRONMENTAL PROTECTION; THE
ADMINISTRATOR OF THE NEW JERSEY SPILL
COMPENSATION FUND; ACTING DIRECTOR NEW
JERSEY DIVISION OF CONSUMER AFFAIRS
v.
THE DOW CHEMICAL COMPANY; LEGACY VULCAN
LLC, formerly known as Vulcan Materials Company;
VIBRANTZ CORPORATION, formerly known as Ferro
Corporation; ABC CORPORATIONS 1-10, Names
Fictitious,
Appellants
______________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 3:23-cv-02449)
District Judge: Honorable Robert Kirsch
______________
Argued April 15, 2025
Before: RESTREPO, MONTGOMERY-REEVES, and
SCIRICA, Circuit Judges.
(Opinion filed: June 11, 2025)
Mary Rose Alexander
Latham & Watkins
330 N Wabash Avenue

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Suite 2800
Chicago, IL 60611
Elliot M. Davis
Shook Hardy & Bacon
One Rockefeller Plaza
Suite 2801
New York, NY 10020
Kasdin M. Mitchell [ARGUED]
Kirkland & Ellis
1301 Pennsylvania Avenue NW
Washington, DC 20004
Counsel for Appellant The Dow Chemical Company
Matthew R. Conley
Archer & Greiner
1025 Laurel Oak Road
Voorhees, NJ 08043
Felice B. Galant
Norton Rose Fulbright
1301 Avenue of the Americas
New York, NY 10019
Counsel for Appellant Legacy Vulcan LLC, formerly known as
Vulcan Materials Company
Eric K. Blumenfeld
Hughes Hubbard & Reed
One Battery Park Plaza
New York, NY 10004
Counsel for Appellant Vibrantz Corporation, formerly known
as Ferro Corporation
Katie R. Beran
Timothy L. Kelly
Renner K. Walker [ARGUED]
Hausfeld
325 Chestnut Street
Suite 900

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Philadelphia, PA 19106
Matthew K. Edling
Quentin C. Karpilow
Sher Edling
100 Montgomery Street
Suite 1410
San Francisco, CA 94104
Dianna E. Shinn
Office of Attorney General of New Jersey
Division of Law
25 Market Street
Hughes Justice Complex
Trenton, NJ 08625
Counsel for Appellees Attorney General of the State of New
Jersey; New Jersey Department of Environmental Protection;
Commissioner of the New Jersey Department of Environmental
Protection; Administrator of the New Jersey Spill
Compensation Fund; & Acting Director New Jersey Division
of Consumer Affairs
______________
OPINION OF THE COURT
______________
MONTGOMERY-REEVES, Circuit Judge.
The State of New Jersey sued the Dow Chemical
Company (“Dow”)1 in state court for the design, manufacture,
marketing, and sale of 1,4-dioxane, an alleged “highly toxic
substance and a likely human carcinogen.” App. 128. Dow
inhibited 1,1,1-trichloroethane (“TCA”) with 1,4-dioxane to
create a cleaning agent that would dissolve oil and grease from
1 New Jersey also sued Legacy Vulcan LLC and Vibrantz
Corporation. Both consented to removal and joined Dow’s
briefing but are otherwise not pertinent to this appeal.

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metal without corrosion. New Jersey alleges that Dow’s 1,4-
dioxane products substantially harmed the environment.
But this appeal is not about the merits of the underlying
lawsuit. It is about where the lawsuit should be heard. New
Jersey prefers to proceed in state court. Dow contends that this
litigation must be tried in federal court under the federal-officer
removal statute because it acted under the United States
Government and Military (collectively the “Government”) in
designing and producing 1,4 dioxane inhibited TCA.
The District Court disagreed with Dow, and so do we.
Nothing in the record establishes that Dow was acting under
the Government with respect to 1,4-dioxane inhibited TCA. So
Dow cannot litigate this case in federal court under the federal-
officer removal statute, 28 U.S.C. § 1442(a)(1). Thus, we will
affirm the District Court’s order remanding this case to state
court.
I. BACKGROUND2
Dow designed, sold, and improved 1,4-dioxane
inhibited TCA products beginning in 1951 and continuing
through the 1960s. In 1951, Dow began selling a product
named Chlorothene for use in cold cleaning. Dow then worked
2 “Because a motion to remand shares an essentially identical
procedural posture with a challenge to subject matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1), it
is properly evaluated using the same analytical approach.”
Papp v. Fore-Kast Sales Co., 842 F.3d 805, 811 (3d Cir. 2016)
(first citing Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir.
2014); and then citing In re Commonwealth’s Motion to
Appoint Couns. Against or Directed to Def. Ass’n of Phila.,
790 F.3d 457, 466 (3d Cir. 2015)). Because New Jersey
challenges Dow’s notice of removal “without disputing the
facts alleged,” we “consider the allegations . . . as true.” Id.
(alteration in original) (quoting Davis v. Wells Fargo, 824 F.3d
333, 346 (3d Cir. 2016)). And when a dispute requires us to
choose between competing factual accounts, we must “credit
[Dow’s] theory of the case . . . .” Jefferson Cnty. v. Acker, 527
U.S. 423, 432 (1999).

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to improve the product’s stability for use in vapor degreasing.
In 1960, Dow released an updated product named Chlorothene
NU. From 1961 to 1962, Dow evaluated Chlorothene NU as a
specialty vapor degreasing agent, and its use for that purpose
grew steadily.
In July 1966, a sea change occurred in the vapor
degreasing market—Los Angeles County effectively banned
the use of TCE, a similar (but more popular) compound to
TCA. This became known as “Rule 66.” The next month,
Dow began selling an updated 1,4-dioxane inhibited TCA
product within Los Angeles County that had achieved stability
for general use in vapor degreasing. Los Angeles County
“widely accepted” the product, known as Dow Solvent SA-
1192A. App. 250.
In 1967, the Government began working with industry
members, including Dow, to revise and amend military and
federal specifications (also known as product specifications)
for vapor degreasing agents.3 After testing confirmed inhibited
TCA’s utility for vapor degreasing in place of TCE, Dow and
industry members submitted proposed product specifications
that the Government adopted with “minor modifications.”
App. 499.4 When the Government issued the product
specifications, Dow began selling the solvent first sold in Los
Angeles County after Rule 66 on a nationwide basis under the
name Chlorothene VG. Dow sold Chlorothene VG to the
public and to the Government.
Decades later, when New Jersey sued Dow for the
design and use of 1,4-dioxane in products like Chlorothene VG
following its alleged impact on the environment, Dow removed
the case to federal court under the federal-officer removal
3 Product specifications outline technical requirements that
suppliers must meet before the Government will procure a
product.
4 The product specifications did not require manufacturers to
inhibit TCA with 1,4-dioxane. And the product specifications
allowed bids or proposals from any company for the sale of
inhibited TCA to the Government.

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statute, 28 U.S.C. § 1442(a)(1). The District Court remanded
the case because Dow was not acting under the Government
with respect to its production and sale of products containing
1,4-dioxane, explaining that Dow produced and sold 1,4-
dioxane inhibited TCA “independently and before the
implementation of the federal regulations on which it relies.”
App. 13. While Dow contended it produced 1,4-dioxane-
inhibited TCA for the Government’s benefit and according to
the Government’s product specifications, the District Court
reasoned that this demonstrated nothing other than a normal
commercial or regulatory relationship, insufficient for federal-
officer removal. Dow appealed.
II. JURISDICTION AND STANDARD OF REVIEW
“We have jurisdiction to review the District Court’s
order to remand pursuant to 28 U.S.C. §§ 1291 and 1447(d).”
Papp, 842 F.3d at 810 n.3. And we review de novo the District
Court’s order to remand for lack of subject-matter jurisdiction
under 28 U.S.C. § 1442(a)(1). Id. at 810 (citing Def. Ass’n,
790 F.3d at 465).
III. DISCUSSION
We apply a four-part test to determine whether Dow
may remove a case under the federal-officer removal statute:
(1) Dow must be considered a “person”; (2) New Jersey’s
claims against Dow must center on its conduct when “acting
under” the Government; (3) New Jersey’s claims against Dow
must be “for, or relating to” an act under color of federal office;
and (4) Dow must raise a colorable federal defense. Def. Ass’n,
790 F.3d at 467 (quoting 28 U.S.C. § 1442(a)(1)) (citing
Ruppel v. CBS Corp., 701 F.3d 1176, 1180–81 (7th Cir. 2012)).
In this appeal, Dow contends that the District Court
erred by remanding the case for failure to satisfy the latter three
requirements for federal-officer removal.5 As to the “acting
under” prong, Dow argues that it “‘produc[ed] an item the
government needed’—specification-compliant TCA—which
5 No one disputes that Dow is a “person” for purposes of
federal-officer removal.

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‘the government otherwise would have been forced to produce
on its own.’” Opening Br. 26 (quoting Papp, 842 F.3d at 813).
Thus, according to Dow, New Jersey’s claims fall within the
purview of the federal-officer removal statute.
We disagree. And we begin and end with the “acting
under” requirement because that analysis resolves the appeal.
See Mohr v. Trs. of Univ. of Pa., 93 F.4th 100, 104 n.2 (3d Cir.
2024) (concluding analysis after “acting under” requirement
because without it federal-officer removal fails).
The Supreme Court explained the contours of the
“acting under” prong of federal-officer removal in Watson v.
Philip Morris Cos., 551 U.S. 142 (2007). In Watson, the
Supreme Court rejected Philip Morris’s attempt to remove a
lawsuit based on its cigarette design. Id. at 147, 157. In
particular, the Supreme Court rejected Philip Morris’s
argument that it “acted under” the Federal Trade Commission
because of the agency’s extensive monitoring and regulation
of cigarettes. Id. at 146.
The Supreme Court explained that the language of
“acting under” is “broad” and thus should be “liberally
construed.” Id. at 147 (quoting Colorado v. Symes, 286 U.S.
510, 517 (1932)). “But broad language is not limitless.” Id.
And, in analyzing the metes and bounds of the phrase “acting
under,” the Supreme Court explained that it requires “an effort
to assist, or to help carry out, the duties or tasks of the federal
superior.” Id. at 152. Crucially, “help or assistance . . . does
not include simply complying with the law.” Id. “[T]hat is so
even if the regulation [or law] is highly detailed and even if the
private firm’s activities are highly supervised and monitored.”
Id. at 153. To hold otherwise would risk “potentially bringing
within its scope state-court actions filed against private firms
in many highly regulated industries.” Id. Moreover, as the
term “under” in “acting under” implies, the relationship
between the private party and Government “typically involves
‘subjection, guidance or control,’” which does not exist simply
because something is highly regulated. Id. at 151. (quoting
Webster’s New International Dictionary 2765 (2d ed. 1953)).
Finally, the Supreme Court rejected Philip Morris’s
attempt to analogize government contractors with companies

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selling highly regulated products. The Supreme Court
explained that federal-officer removal involving government
contractors differs because a contractor helps “the Government
to produce an item that it needs” and thus privatizes a task “the
Government itself would have had to perform.” Id. at 153–54.
As an example of this principle in application, the Supreme
Court cited Winters v. Diamond Shamrock Chemical Co., 149
F.3d 387 (5th Cir. 1998) (subsequent history omitted).
In Winters, the Fifth Circuit held that Dow (and others)
acted under the Government when producing Agent Orange
during the Vietnam War. See id. at 398–400. This followed
evidence that the Government “compelled” Dow to make
Agent Orange “under threat of criminal sanctions”;
“maintained strict control over the development and
subsequent production of Agent Orange”; and required “on-
going supervision” over all facets of Agent Orange’s
production. Id. at 398, 399, 400. Moreover, while Dow sold
herbicides commercially before the manufacture of Agent
Orange, the Government required “unprecedented quantities”
of the active herbicidal ingredients “without dilution,”
differing from the commercially available product. Id. at 399.
Based on this evidence, the Fifth Circuit concluded that Dow
and others acted under “federal direction” in Agent Orange’s
production. Id. at 400.
In recent years, following Watson, our Court has on five
occasions analyzed whether private parties were “acting
under” the Government for purposes of federal-officer
removal. On one end of the spectrum, we held in Defender
Ass’n and Papp that private parties satisfied the “acting under”
prong.
In Defender Ass’n, the Commonwealth of Pennsylvania
sued to disqualify the Federal Community Defender from
representing clients in state post-conviction proceedings for
improper use of federal grant funds. 790 F.3d at 461, 468–70.
We explained that the Federal Community Defender was
acting under the Government because: (1) it is a non-profit
entity created by the Criminal Justice Act (“CJA”); (2) it is
delegated authority by federal statutes—the CJA and 18 U.S.C.
§ 3599; (3) it assists the Administrative Office of the U.S.
Courts (“AO”) to carry out the duties or tasks of a federal

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superior; and (4) it maintains detailed financial records and
submits an annual report of its activities to the AO. Id. at 469
(internal citations omitted). We held that these activities,
coupled with the inquiry being “directed at the relationship
between the Federal Community Defender and the AO,”
satisfied the “acting under” prong. Id. at 470.
In Papp, an employee’s spouse sued Boeing for
asbestos exposure relating to the employee’s work on World
War II C-47 cargo planes for the U.S. Military. 842 F.3d at
809–10. The lawsuit was an “archetypal case” for permissible
federal-officer removal because Boeing acted on “the direction
of a federal officer” pursuant to a “federal contract” to produce
a military cargo plane, something “the government otherwise
would have been forced to produce on its own.” Id. at 813; see
also id. at 810 (explaining that Boeing produced the World
War II planes “under the specific supervision of the United
States military” and “government[ ] oversight extended to
labels and warnings for all parts of the aircraft”). Thus, the
“acting under” prong was “easily” satisfied in Papp. Id. at 813.
But the “acting under” prong of federal-officer removal
is not always satisfied, and on three occasions we policed the
statute’s outer limits.
First, in Maglioli, we considered federal-officer
removal as applied to nursing homes sued for COVID-19-
related wrongful death claims. Maglioli v. All. HC Holdings
LLC, 16 F.4th 393, 400, 404–06 (3d Cir. 2021). The nursing
homes pointed to compliance with Centers for Medicare &
Medicaid Services (“CMS”) and Centers for Disease Control
and Prevention (“CDC”) publications and regulations to satisfy
the “acting under” prong. Id. at 405. We disagreed. We noted
that the nursing homes “are not government contractors” and
“do not have [a] close relationship with the federal
government.” Id. And we made clear that complying with
federal regulations does not “deputize all . . . private-sector
workers as federal officers,” as any holding to the contrary
would bring “doctors, weather forecasters, clergy, farmers, bus

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drivers, plumbers, dry cleaners,” and others within the purview
of federal-officer removal. Id. at 406.
Second, in Chevron, we considered federal-officer
removal as applied to oil companies facing climate-change
lawsuits. City of Hoboken v. Chevron Corp., 45 F.4th 699, 706,
712–13 (3d Cir. 2022). The oil companies cited drilling leases
granted by the Government. Id. at 712. That was insufficient.
And we held that federal-officer removal is unavailable based
on a company’s compliance with “run-of-the-mill regulations”
to “sell [a product] on the open market” where no other “close
federal control” exists. Id. at 713.
Third, in Mohr, we considered federal-officer removal
as applied to a lawsuit against the University of Pennsylvania
(“Penn”) for alleged violations of privacy law on its hospital’s
online patient portal. 93 F.4th at 103–06. Penn, which had a
government contract, argued that incentive payments from
CMS that Penn received in exchange for operating the online
patient portal showed that it was “acting under” the U.S.
government. Id. at 105–06. But this, too, was not enough. We
rejected Penn’s argument because it was not “doing the
government’s business” when it operated a patient portal in
exchange for federal incentives; it was “doing its own.” Id. at
105 (citing Doe v. BJB Health Sys., 89 F.4th 1037, 1043 (8th
Cir. 2023)).
Taken together, Winters, Defender Ass’n, and Papp
permit federal-officer removal when a private party assists or
carries out the Government’s duties or tasks under a contract
or federal law; the Government directs, guides, or controls the
private party; and the lawsuit is directed at the close
relationship between the two. But Maglioli reinforces the
notion established in Watson that a purely regulatory
relationship is insufficient to establish federal-officer removal.
And Chevron and Mohr explain that economic benefits from
complying with government regulations likewise are
insufficient to satisfy the “acting under” prong.
Those principles resolve this case. Dow’s case rests and
falls on the fact that the Government purchased a product Dow
made. But that fact is immaterial when Dow did not produce
the product under the Government’s watch. Even more, Dow

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created and sold 1,4-dioxane inhibited TCA more than a
decade before the product specifications issued. And when
Rule 66 effectively banned TCE, Dow quickly introduced a
new 1,4-dioxane inhibited TCA product to Los Angeles
County and then crafted product specifications for the
Government to adopt. True, Dow sold Chlorothene VG to the
Government, a product Dow contends it tailored for the
product specifications and that differed from the earlier
versions of 1,4-dioxane inhibited TCA that Dow first
introduced in 1951. But nothing required Dow to create and
sell a product to the Government. And the Government never
guided or controlled Dow’s production of inhibited TCA. As
a result, Dow cannot satisfy the “acting under” prong of
federal-officer removal.
* * * * *
Providing a product to the Government does not
guarantee federal-officer removal. At times, a case may be
removed, like when Dow was “acting under” the Government
when it was coerced to produce Agent Orange in Winters. And
Boeing was “acting under” the Government when a lawsuit
targeted its production of a highly tailored military plane under
the Government’s watch in Papp. But providing a good or
service that the Government needs is not an independently
sufficient premise to establish federal-officer removal. So
here, with no indicia of “close federal control” or a close
relationship, Dow’s product-specification-compliant sales to
the Government are insufficient. Chevron, 45 F.4th at 713.
Thus, we will affirm the District Court’s order remanding this
case to New Jersey state court because the federal-officer
removal statute is inapplicable.
IV. CONCLUSION
For these reasons, we will affirm the judgment of the
District Court.

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