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FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
No. 23-13200
CITY OF BRUNSWICK,
by and through its Mayor and
Board of Commissioners,
Plaintiff-Appellee,
versus
HONEYWELL INTERNATIONAL, INC.
f.k.a. Allied Chemical Corporation,
f.k.a. Allied Signal, Inc.,
THE GEORGIA POWER COMPANY,
Defendants-Appellants.
Appeals from the United States District Court
for the Southern District of Georgia
D.C. Docket No. 2:22-cv-00132-JRH-BWC
Before BRANCH, LUCK, and LAGOA, Circuit Judges.
BRANCH, Circuit Judge:
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2 Opinion of the Court 23-13200
Congress has charged the Environmental Protection Agency
(“EPA”) with identifying sites affected by pollution and
undertaking necessary remediation efforts or delegating those
efforts to third parties. One such site surrounds the City of
Brunswick, Georgia. The City sued Honeywell International, Inc.,
and the Georgia Power Company in Georgia state court asserting
that both defendants were liable under state tort law for pollution
emanating from that site. The defendants removed the case to
federal court, arguing, among various grounds for removal, that
federal officer jurisdiction under 28 U.S.C. § 1442(a)(1) 1 applied,
because all the remediation efforts the defendants had undertaken
at the site were controlled and delegated by EPA, a federal agency.
1 The federal officer removal statute provides as follows:
(a) A civil action or criminal prosecution that is commenced in
a State court and that is against or directed to any of the
following may be removed by them to the district court of the
United States for the district and division embracing the place
wherein it is pending:
(1) The United States or any agency thereof or 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 or on account of any right, title or
authority claimed under any Act of Congress for the
apprehension or punishment of criminals or the
collection of the revenue.
28 U.S.C. § 1442(a)(1).
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23-13200 Opinion of the Court 3
The district court rejected this argument and remanded the case to
state court.
While this appeal of the remand order was pending, the
Supreme Court further delineated the contours of the federal
officer removal test. See Chevron USA Inc. v. Plaquemines Parish, 608
U.S. ----, 146 S. Ct. 1052 (2026). With the benefit of oral argument
and supplemental briefing, we hold that federal officer removal
was proper in this case because the defendants’ alleged liability
arises out of their obligations under an EPA-mandated consent
decree to remediate the plant site, an action that EPA would
otherwise have to perform itself. 2
But first, we consider our jurisdiction to hear the appeal. We
conclude that we have jurisdiction to review the district court’s
remand order, notwithstanding the parties’ subsequent litigation
activities in state court, because the remand order was
automatically stayed upon the defendants’ notice of appeal.
Accordingly, we reverse the district court’s remand order.
I. Background
A. Factual Background
Georgia Power, an electric utility incorporated in Georgia,
purchased plots of land (“the Plant Site”) in the Brunswick area in
1937 and the following years. Georgia Power used the Plant Site
to generate electric power and store petroleum products. As a
2 Because we decide the removal issue on the federal officer removal ground,
we do not reach the defendants’ other grounds for removal.
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4 Opinion of the Court 23-13200
result of these operations, hazardous substances, including polychlorinated byphenals (PCBs), were released on the Plant Site and
into the environment.
In the mid-1950s, a corporation that later became
Honeywell acquired the Plant Site and additional land in the area
from Georgia Power. Honeywell built and operated a chlor-alkali
facility at the Plant Site to produce chlorine gas, hydrogen gas, and
caustic solution. These operations led to further disposal of
hazardous substances, including mercury and PCBs, within the
Plant Site. Honeywell operated the Plant Site until 1979, when
Honeywell sold it to another corporation, although Honeywell
remained involved in the plant’s operations until the plant ceased
activity in 1994. Honeywell later reacquired the Plant Site.
In 1995, the defendants entered into an Administrative
Order on Consent with EPA, agreeing to undertake a remedial
investigation and feasibility study at the Plant Site under EPA’s
oversight and subject to EPA’s approval. EPA subsequently added
the Plant Site to the National Priorities List, a “prioritized list of
contaminated sites for cleanup, commonly known as Superfund
sites” under the Comprehensive Environmental Response,
Compensation, and Liability Act (“CERCLA”). See Atl. Richfield Co.
v. Christian, 590 U.S. 1, 6 (2020) (citing 42 U.S.C. § 9605). 3 A few
years later, EPA began to mandate remediation actions, such as
3 Once a contaminated site is designated a Superfund site, “EPA may clean [the
site] itself or compel responsible parties to perform the cleanup.” Atl. Richfield,
590 U.S. at 6 (citing 42 U.S.C. §§ 9604, 9606, 9615).
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ordering “Honeywell to remove one foot of soil from thirteen acres
of the marsh and sediment in creeks in front of the old Honeywell
trash dump.”
Following extensive investigation activities and additional
remedial work on the Plant Site, in 2015 EPA issued a Record of
Decision (EPA’s official cleanup plan pursuant to CERCLA)
selecting remedial actions to be implemented at the Plant Site. The
defendants then entered into a consent decree with EPA,
incorporating that Record of Decision, to implement the EPAselected remedial actions subject to EPA’s oversight and control.
B. Procedural Background
The City initially filed suit in the Superior Court of Glynn
County, Georgia, on October 20, 2022. The suit alleged continuing
nuisance and continuing trespass under Georgia law for the
defendants’ failure to adequately remediate the pollutants
emanating from the defendants’ land and affecting the City’s
property. The City alleged that “Honeywell’s activities at the Plant
Site caused and continue to cause toxic mercury and PCBs to be
spilled, discharged and deposited into the Turtle River, its
tributaries, surrounding marshlands and onto property of the City
of Brunswick.” These pollutants, it alleged, entered the City’s
property “in amounts, concentrations and combinations that are
harmful to health, safety and welfare of the citizens of the City of
Brunswick, and to animals, birds and aquatic life.” According to
the City, “[d]efendants’ continuing failure and refusal to
permanently remove their pollution from property of the City of
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6 Opinion of the Court 23-13200
Brunswick[] unreasonably and substantially interferes with the
City’s right to exclude others and the pollutants of others from its
property” and with “the City’s use and enjoyment of its property.”
The City therefore alleged that the defendants were “liable for
all . . . remediation costs and damages” related to the hazardous
waste on City property.
The defendants timely removed the case to the United
States District Court for the Southern District of Georgia based on
three distinct grounds for subject-matter jurisdiction: (1) federal
officer removal under 28 U.S.C. § 1442; (2) federal question
jurisdiction under 28 U.S.C. § 1331; and (3) diversity jurisdiction
under 28 U.S.C. § 1332(a), asserting that Georgia Power had been
fraudulently joined to defeat diversity. The City subsequently
moved to remand the case back to state court.
The district court granted the City’s motion for remand,
rejecting each of the defendants’ asserted grounds for removal. As
relevant to this appeal, the court concluded that the defendants
were not “acting under” a federal officer when they allegedly
released pollutants into the waters and marshlands around the
City’s property, and that EPA’s supervision of the defendants’
remediation efforts was not enough to show otherwise, thus
federal officer removal was not warranted. 4 The district court
instructed the Clerk to “REMAND this case to the Superior Court
of Glynn County, Georgia” and to “CLOSE this case” on
4 The district court also rejected the defendants’ reliance on federal question
and diversity jurisdiction.
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23-13200 Opinion of the Court 7
September 1, 2023, and the district court’s remand order was
docketed in state court on September 6, 2023. The defendants
timely appealed the district court’s order on September 25 and 26,
2023.
After the district court issued its remand order and we
docketed the defendants’ appeal, the parties continued litigating
this case in state court. Glynn County Superior Court received a
certified copy of the order remanding the case on September 6,
2023, and reasserted jurisdiction over the matter. The superior
court initially stayed the proceedings pending appeal, but later
granted the City’s motion to withdraw the stay in April 2024. Both
Honeywell and Georgia Power filed answers and motions to
dismiss the City’s complaint in the state court proceedings. As
litigation continued, the City amended its complaint twice.
Meanwhile, the City filed a motion to dismiss this appeal,
arguing that the defendants had waived their right to appeal the
remand order by substantially litigating the case in state court. 5
Upon being notified of the City’s amended complaints in state
court, we ordered supplemental briefing on the question of
whether the City’s amended complaints had any effect on our
jurisdiction over the appeal.
After that supplemental briefing, and after oral argument
was held, we requested further briefing on whether we should stay
the appeal pending the Supreme Court’s decision in Plaquemines
5 We carried this motion with the case.
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Parish, 146 S. Ct. 1052, which considered the proper test for federal
officer removal. Additionally, we requested briefing on whether
Coinbase, Inc. v. Bielski, 599 U.S. 736 (2023), required an automatic
stay of district court proceedings once the defendants had filed
notices of appeal, such that the district court’s remand order was
without effect. The parties briefed the Coinbase issue as it relates to
federal officer removal and agreed that we should stay the appeal
pending Plaquemines Parish, which we did. After the Supreme
Court issued its opinion in Plaquemines Parish, we lifted the stay and
requested and received supplemental briefs from the parties
addressing the effect of that opinion on this appeal. We now
consider this appeal in the light of all the parties’ briefing on the
relevant issues.
II. Standard of Review
We review questions of subject matter jurisdiction de novo.
Wilson v. Hearos, LLC, 128 F.4th 1254, 1259 (11th Cir. 2025). We
also review a district court’s remand order de novo. Evans v. Walter
Indus., Inc., 449 F.3d 1159, 1161 (11th Cir. 2006).
III. Discussion
This appeal requires us to address two distinct questions:
(1) whether we have jurisdiction to review the defendants’ appeal
and (2) whether the defendants properly removed this case to
federal court. We answer both questions in the affirmative.
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23-13200 Opinion of the Court 9
A. We have jurisdiction to review this appeal
Because the parties litigated this case in state court after the
district court’s remand, the City disputes our jurisdiction over this
appeal. First, the City argues that we should dismiss the appeal
because the defendants sought “resolution in their favor” in state
court upon remand and thus “waived their right to proceed in
federal district court” (elsewhere, “waived removal jurisdiction”).
Second, the City contends that its decision to amend the underlying
complaint in state court moots this appeal because the initial
complaint—the subject of this appeal—no longer governs the case
following the City’s amended complaints in state court. The
defendants respond that they did not waive their right to appeal by
litigating in state court because they had no other option once the
state court lifted its stay pending appeal. They further argue that
the City’s amended complaints did not divest us of jurisdiction
because, among other things, 28 U.S.C. § 1447 provides for appeal
as of right following remand orders in cases involving federal
officer removal. We agree with the defendants that we have
subject matter jurisdiction to review the remand order, holding
that the defendants’ timely appeal triggered an automatic stay,
such that the state court proceedings are rendered void for our
purposes. 6
6 Because we hold that the notice of appeal automatically stayed the remand
order, the amended complaints filed in the post-remand state court
proceedings have no legal effect in this Court. We therefore reject
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The federal officer removal statute allows for the removal
from state court to federal court of any “civil action or criminal
prosecution” against “any officer (or any person acting under that
officer) of the United States or of any agency thereof . . . for or
relating to any act under color of such office.” 28 U.S.C.
§ 1442(a)(1). 7 If a district court determines that removal was
improper, it may order the case remanded to state court. See id.
§ 1447(c). Generally, we lack jurisdiction to review remand orders.
See id. § 1447(d) (“An order remanding a case to the State court
from which it was removed is not reviewable on appeal or
otherwise . . . .”). But § 1447(d) specially allows appeals in cases
involving federal officer removal under § 1442, providing that
remand orders “shall be reviewable by appeal or otherwise.” Id.
(emphasis added); see Thomas v. Phoebe Putney Health Sys., 972 F.3d
1195, 1200–01 & n.4 (11th Cir. 2020).
Additionally, every appeal implicates the “Griggs principle”:
“An appeal, including an interlocutory appeal, ‘divests the district
court of its control over those aspects of the case involved in the
appeal.’” Coinbase, Inc. v. Bielski, 599 U.S. 736, 740 (2023) (quoting
Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982)). In
Coinbase, the Supreme Court applied this “longstanding tenet of
American procedure” in the context of a motion to compel
Honeywell’s argument that we may look to the second amended complaint
filed in the state court when analyzing the merits of the removal itself.
7 We will discuss the merits of the defendants’ federal officer removal
argument pursuant to § 1442 in a later section.
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arbitration, concluding that “the Griggs rule requires that a district
court stay its proceedings while the interlocutory appeal on the
question of arbitrability is ongoing.” Id. at 740, 744. The question
before us is whether the Griggs principle requires the automatic
stay of all district court proceedings during appeals of remand
orders in federal officer removal cases.
The defendants argue that Coinbase’s application of Griggs
applies to appeals of remand orders under the federal officer
removal statute, because appeals divest the district court of control
over the aspects of the case involved in the appeal, and appeals
regarding federal officer removal, as do appeals of arbitrability,
involve the entire case. The City, on the other hand, contends that
Coinbase’s reasoning was narrow and turned on the fact that
discovery would not be available in arbitration, while in this
context parties would engage in discovery in both federal and state
court. We conclude that, under the Griggs principle as applied in
Coinbase, the defendants’ notice of appeal stayed the entirety of the
district court’s proceedings and divested the district court of
jurisdiction to remand the case, rendering the subsequent state
court proceedings without legal effect.
To begin, Griggs explained that “[t]he filing of a notice of
appeal is an event of jurisdictional significance—it confers
jurisdiction on the court of appeals and divests the district court of
its control over those aspects of the case involved in the appeal.”
459 U.S. at 58. This principle grew from the general understanding
that “a federal district court and a federal court of appeals should
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not attempt to assert jurisdiction over a case simultaneously.” Id.
While neither the Supreme Court nor this Court have previously
applied the Griggs principle to appeals of remand orders concerning
federal officer removal, in Coinbase the Supreme Court applied
Griggs to determine that a notice of appeal of arbitrability
automatically stayed all district court proceedings. 599 U.S. at 741.
The Court’s reasoning in Coinbase demonstrates that Griggs calls for
an automatic stay in this context as well.
At issue in Coinbase was the appeal of the district court’s
denial of a motion to compel arbitration. Id. Congress had
provided, by statute, for immediate appeal of a district court’s
denial of such motions, but the statutory provision did not
explicitly call for an automatic stay of district court proceedings
upon appeal. Id. at 740. The Court determined, nonetheless, that
the “Griggs principle resolve[d] th[e] case.” Id. at 741. Griggs held
that an appeal divested the district court of jurisdiction over “those
aspects of the case involved in the appeal.” 459 U.S. at 58. Because
the appeal in Coinbase would decide “whether the case belongs in
arbitration or instead in the district court,” the Court found that
“the entire case [wa]s essentially ‘involved in the appeal.’” 599 U.S.
at 741 (quoting Griggs, 459 U.S. at 58)). And Congress did not need
to explicitly require a stay in the statutory text of the Federal
Arbitration Act because, “absent contrary indications, the
background Griggs principle already require[d] an automatic stay.”
Id. at 743–44. The Court observed that when Congress does not
want the Griggs principle to apply, it “typically says so” expressly,
pointing to a litany of “statutory ‘non-stay’ provisions” where
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Congress had clearly chosen to “authorize an interlocutory appeal,
but not to automatically stay district court proceedings pending
that appeal.” Id. at 744 (emphasis in original); see id. at 744 n.6
(collecting statutes with express “non-stay” provisions).
In support of its conclusion, the Court cited circuit decisions
“in the analogous contexts of qualified immunity and double
jeopardy” and of other interlocutory appeals that had similarly held
that district court proceedings were automatically stayed for the
pendency of the appeal. Id. at 742–43. The Court further pointed
out that this “common practice reflects common sense”:
“continuation of proceedings in the district court largely defeats the
point of the appeal” and functionally “nullified” Congress’s choice
to provide an interlocutory appeal of such orders. Id. (quotation
omitted). Without a stay, the benefits of arbitration, such as
avoiding extensive discovery, could be lost and parties could be
forced to settle while awaiting the appellate court’s decision. Id. at
743. Thus, the Court concluded that the district court “was
required to stay its proceedings” once Coinbase appealed its order.
Id. at 747.
The Coinbase Court’s reasoning clearly supports requiring an
automatic stay of all district court proceedings in this case. First,
the Court presented the Griggs principle as a “rule” that required its
conclusion that appeals of arbitrability decisions automatically
stayed underlying proceedings—a rule that operated in the
background of statutory grants of appellate review, unless
Congress clearly indicated otherwise. Id. at 743–44. The provision
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granting review in this case, § 1447(d), includes no express “nonstay” language, so Coinbase indicates that the background Griggs
principle applies.
Second, just as an appeal of a motion to compel arbitration
decides the forum in which proceedings will continue, the appeal
of a remand order decides “whether the case belongs in [state
court] or instead in the district court.” Id. at 741. In both contexts,
“the entire case is essentially ‘involved in the appeal.’” Id. (quoting
Griggs, 459 U.S. at 58).
And third, Coinbase’s concern about nullifying Congress’s
grant of appellate review also applies here: the City’s own
mootness arguments demonstrate the very real possibility of
undermining appellate review in federal officer removal cases
absent an automatic stay. Unless the district court or state court
grants a discretionary stay pending appeal, it is likely that state
court proceedings during the appeal would require the defendants
to engage in litigation in state court—the very action the City
contends moots this appeal—or that the plaintiff would amend its
complaint—the grounds for the City’s other mootness argument—
in order to avoid a possible reversal on appeal. Recognizing an
automatic stay in this context preserves Congress’s choice to grant
appellate review of decisions denying federal officer removal.
For these three reasons, it necessarily follows from Coinbase
that the Griggs rule requires an automatic stay of all district court
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23-13200 Opinion of the Court 15
proceedings pending appeal of a remand order in the context of
federal officer removal. 8
We are not alone in concluding that Griggs and Coinbase
require an automatic stay in this context. The Fourth Circuit
recently considered the same question in the context of federal
officer removal and determined that “[u]nder a fair[] reading of
Coinbase, the district court was automatically stayed from mailing
the remand order.” City of Martinsville v. Express Scripts, Inc., 128
F.4th 265, 268 (4th Cir. 2025). The court distilled from Coinbase
three principles it believed resolved the question: First, when the
question on appeal is “the whole ballgame” (such as whether the
district court or the arbitrator should act as factfinder), the appeal
divests the district court of “control over more or less the whole
case,” otherwise the appeal would be pointless. Id. at 269. Second,
an automatic stay is, as its name implies, self-executing, so a district
court must “immediately . . . halt all proceedings covered by the
Griggs principle when a proper notice of appeal is docketed,
whether or not the parties ask it to.” Id. at 269–70. And third,
“because Griggs identifies a background principle,” Congress need
not affirmatively include an automatic stay provision (although it
can certainly create exceptions to the general principle); “the
default rule is that an appeal automatically stays all aspects of the
case involved in the appeal.” Id. at 270. Based on these principles—
applied in an analysis closely tracking our discussion above—the
8 No party in this case requested a stay in federal court, but Coinbase is clear
that the stay is “automatic.” See, e.g., 599 U.S. at 742.
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Fourth Circuit concluded it was “clear that the Griggs principle
applies just as forcefully here as it did in Coinbase itself.” Id. 9
9 The Ninth Circuit, considering the same automatic stay question in the
federal officer removal context, limited Coinbase to the arbitration context.
California v. Express Scripts, Inc., 139 F.4th 763, 768 (9th Cir. 2025), cert. denied,
146 S. Ct. 1507 (2026) (mem.). The court pointed out that federal officer
removal from state court presents “unique federalism issues” not present in
the arbitration context and highlighted that “a stay is an ‘intrusion into the
ordinary processes of administration and judicial review.’” Id. (quoting Nken
v. Holder, 556 U.S. 418, 427 (2009)). According to the Ninth Circuit, a stay in a
case involving an improper removal might “infringe upon the rights of state
courts” to hear “cases that should rightfully be heard in their fora, in violation
of comity principles.” Id. at 769. Thus, the Ninth Circuit determined that stays
in this context should be discretionary rather than automatic. Id.
Federalism and comity with state courts are certainly important principles.
See, e.g., Leonard v. Ala. State Bd. of Pharmacy, 61 F.4th 902, 907 (11th Cir. 2023).
But the Griggs principle is a rule of federal appellate procedure that stays only
federal district court proceedings. And, in any event, Congress struck a
balance when it explicitly allowed defendants to appeal remand orders in the
federal officer removal context—an exception from the non-appealability of
most remand orders. See 28 U.S.C. § 1447(c), (d). It did so without including
an express non-stay provision, as it has done elsewhere. See Coinbase, 599 U.S.
at 744. So a free-floating federalism concern cannot overcome Congress’s
decision to provide a meaningful appeal of decisions denying federal officer
removal.
The Ninth Circuit also asserted that the “unique features of arbitration”
demonstrate why the Coinbase Court would conclude that an automatic stay
was warranted in that context, and that the same concerns did not attach in
the federal officer removal context. California, 139 F.4th at 770. But as we
discussed above, Coinbase stated the Griggs rule as a clear background
principle—regardless of the type of case—that “divests the district court of its
control over those aspects of the case involved in the appeal.” 599 U.S. at 740
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Relying, then, on the Griggs principle as explained in
Coinbase, we hold that the appeal of a motion to remand under
§ 1447(d) triggers an automatic stay of all district court
proceedings—including the remand order—pending resolution of
the appeal. See Coinbase, 599 U.S. at 740. Thus, any subsequent
state court proceedings are rendered void for our purposes. See
Maseda v. Honda Motor Co., Ltd., 861 F.2d 1248, 1254–55 (11th Cir.
1988) (noting that “after removal,” “[a]ny subsequent proceedings
in state court on the case are void ab initio”); cf. Lee v. U.S. Bank Nat’l
Ass’n, 102 F.4th 1177, 1180 (11th Cir. 2024) (observing that, in the
bankruptcy context, “actions taken in violation of the automatic
stay are void and without effect,” including foreclosure actions in
state court (quotations omitted)).
It is irrelevant to our conclusion that, in this case, the district
court had already mailed the remand order to the state court when
the defendants filed their notice of appeal.10 The Griggs principle
officer removal denials, the question on appeal is “whether the case should be
litigated in the district court”; in both contexts, “the entire case is essentially
involved in the appeal.” Id. at 741 (quotations omitted). The Ninth Circuit
also asserted that “[a]ll other circuits where this question has been raised,
besides the Fourth Circuit, appear to have reached the same conclusion.”
California, 139 F.4th at 766 n.2. But it cites no published circuit decisions
analyzing the Coinbase issue in this context and refusing to apply it.
For these reasons, we are unpersuaded by the Ninth Circuit’s reasoning and
conclude that Coinbase does indeed counsel application of the Griggs principle
in the federal officer removal context.
10 Section 1447(c), which applies to removals generally, requires the district
court clerk to mail a “certified copy of the order of remand . . . to the clerk of USCA11 Case: 23-13200 Document: 82-1 Date Filed: 08/03/2026 Page: 18 of 39
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operated to stay the remand order even though it had already been
mailed. Congress explicitly provided that “an order remanding a
case to the State court from which it was removed” pursuant to
federal officer removal “shall be reviewable by appeal or
otherwise.”11 28 U.S.C. § 1447(d). The administrative task of
mailing the remand order to the state court cannot operate to
prevent the very opportunity for review Congress explicitly
provided in federal officer removal cases. Such would be the case
if the district court lost jurisdiction over a case to the state court as
soon as it mailed a remand order whenever it did so before the
defendants filed notices of appeal. Other circuits have agreed that
the mailing of a reviewable remand order does not divest the
the State court,” at which time the “State court may thereupon proceed with
such case.” 28 U.S.C. § 1447(c). While the district court docket does not
indicate exactly when the remand order was mailed in this case, it does include
the court’s remand order, dated September 1, 2023, instructing the Clerk to
“REMAND this case to the Superior Court of Glynn County, Georgia” and to
“CLOSE this case.” The docket further reflects that the Clerk entered
judgment and closed the case that same day. The Superior Court docket
shows that the district court’s remand order was docketed on September 6,
2023. The defendants’ timely notices of appeal followed on September 25 and
26, 2023.
11 This “or otherwise” language has been interpreted to mean that the district
court retains jurisdiction to “review . . . vacate or reinstate” reviewable
remand orders. Plaquemines Parish v. Chevron USA, Inc., 84 F.4th 362, 371–72
(5th Cir. 2023) (quoting In re Shell Oil Co., 631 F.2d 1156, 1158 (5th Cir. 1980));
see Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc)
(holding that all decisions from the Fifth Circuit Court of Appeals issued before
the close of business on September 30, 1981, are “binding as precedent in the
Eleventh Circuit”).
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district court of jurisdiction. See Plaquemines Parish v. Chevron USA,
Inc., 84 F.4th 362, 371–72 (5th Cir. 2023) (holding that a district
court had jurisdiction to issue a discretionary stay of a reviewable
remand order even after the order was mailed); Shapiro v. Logistec
USA, Inc., 412 F.3d 307, 312 (2d Cir. 2005) (holding that, unlike
unreviewable remand orders, which divest the district court of
jurisdiction when the order is mailed, “the mailing of [a reviewable]
remand order to the state court does not strip the federal court of
jurisdiction”); Hudson United Bank v. LiTenda Mortg. Corp., 142 F.3d
151, 158 (3d Cir. 1998) (concluding that “the mailing of a remand
order does not divest a district court of jurisdiction to entertain a
motion for reconsideration” in cases involving reviewable remand
orders).
Because the district court retains jurisdiction to reconsider
or amend reviewable remand orders after such orders are mailed,
the Griggs principle acted to stay the district court’s reviewable
remand order in this case when the defendants filed notices of
appeal, even though the order had already been mailed. And,
again, because the remand order was stayed, the subsequent state
court proceedings were “void ab initio” for our purposes. See
Maseda, 861 F.2d at 1254–55. We therefore disregard both the
City’s amended complaints in state court and the defendants’
litigation activity there. For this reason, the City’s argument that
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20 Opinion of the Court 23-13200
its amended complaints in state court mooted this appeal fails, and
we deny the City’s motion to dismiss this appeal. 12
Having concluded that we have jurisdiction, we now turn to
the merits of this appeal.
12 The City’s motion to dismiss fails for another reason. The City argues that
the defendants waived any right they had to proceed in federal court when
they “s[ought] resolution on the merits in their favor” in state court after
remand. Specifically, the City points to the defendants’ respective answers to
the complaint, motions to dismiss, and participation in a hearing on pending
motions. The City argues that by seeking relief in state court, the defendants
have consented to the state court’s jurisdiction.
True, a defendant with valid grounds for removal can nonetheless waive the
right to remove by “taking some substantial offensive or defensive action in
the state court action indicating a willingness to litigate in that tribunal before
filing a notice of removal with the federal court.” Yusefzadeh v. Nelson, Mullins,
Riley & Scarborough, LLP, 365 F.3d 1244, 1246 (11th Cir. 2004) (emphasis added)
(quotations omitted). In this case, though, the City points only to actions the
defendants took after the district court remanded the case to state court. As
previously recounted, the state court initially stayed the proceedings pending
this appeal after the district court remanded the case. The City, however,
asked the court to withdraw the stay, which the court ultimately did. At that
point, the defendants had no choice but to participate in the state court
litigation proceedings. The City has not identified any case of this Court
where such post-remand activities in state court waived defendants’
otherwise-meritorious appeal of a remand order.
Thus, the defendants’ litigation activity in state court post-remand,
necessitated by the City’s request to lift the stay pending appeal, does not
waive their right to remove or to appeal the district court’s remand order. See
R.R. Street & Co. v. Transp. Ins. Co., 656 F.3d 966, 973 (9th Cir. 2011)
(concluding parties did not waive their right to appeal a remand order when
they “merely sought to preserve their claims in state court pending the
outcome of th[e] appeal”).
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23-13200 Opinion of the Court 21
B. The defendants may remove this case pursuant to the federal
officer removal statute
The defendants argue that this action is removable pursuant
to 28 U.S.C. § 1442(a)(1), which governs federal officer removal,
because the defendants’ remediation activities were performed
under the authority of EPA, and the remediation is the subject of
the City’s claims. The City responds that federal officer removal is
inappropriate because the defendants are merely regulated parties,
not government employees or contractors serving as de facto
federal agents. We conclude that the defendants are entitled to
remove the action to federal court under § 1442(a)(1).
The federal officer removal statute allows for the removal
from state court to federal court of any action against “any officer
(or any person acting under that officer) of the United States or of any
agency thereof . . . for or relating to any act under color of such
office.” 28 U.S.C. § 1442(a)(1) (emphasis added). The statute has
been “liberally construed” in favor of a federal forum, Watson v.
Philip Morris Co., 551 U.S. 142, 147 (2007), and “defendants enjoy
much broader removal rights under the federal officer removal
statute than they do under the general removal statute,” Leite v.
Crane Co., 749 F.3d 1117, 1122 (9th Cir. 2014); see also Florida v.
Cohen, 887 F.2d 1451, 1453 (11th Cir. 1989) (“This statute is an
incident of federal supremacy and is designed to provide federal
officials with a federal forum in which to raise defenses arising from
their official duties.”).
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22 Opinion of the Court 23-13200
Because the defendants are not themselves federal officers,
they must satisfy a three-pronged test to show that removal is
proper: they must (1) “show that [they are persons] within the
meaning of the statute who acted under a federal officer,” Caver v.
Cent. Ala. Elec. Coop., 845 F.3d 1135, 1142 (11th Cir. 2017); (2) show
that the suit is “for or relating to any act under color of such
office”—i.e., establish that the actions taken under federal control
are “closely connected” to the plaintiff’s claims, Plaquemines Parish,
146 S. Ct. at 1057, 1060 (quotations omitted); and (3) “assert a
colorable federal defense,” id. at 1057–58 (quotations omitted). See
28 U.S.C. § 1442(a)(1).
The defendants, as the parties seeking removal, bear the
burden of proof. 13 See Georgia v. Meadows, 88 F.4th 1331, 1348 (11th
Cir. 2023). Importantly, at the removal stage of litigation, courts
“credit the [defendant’s] theory of the case for purposes of [all]
elements of [the court’s] jurisdictional inquiry,” Jefferson County v.
Acker, 527 U.S. 423, 432 (1999), and we subject the defendant’s
allegations in support of removal to “the same liberal rules . . . that
are applied to other matters of pleading,” Dart Cherokee Basin
Operating Co. v. Owens, 574 U.S. 81, 87 (2014) (quotations omitted).
13 Because the removing party bears the burden of proof, we may consider
evidence attached to the removal petition along with post-petition evidence
to establish facts relevant to jurisdiction that existed at the time of removal.
See Sierminski v. Transouth Fin. Corp., 216 F.3d 945, 946, 949 (11th Cir. 2000).
We therefore may rely on the documents the defendants attached to their
notice of removal, which include the defendants’ consent decree with EPA
and other documents related to the defendants’ relationship with EPA.
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23-13200 Opinion of the Court 23
See Baker v. Atl. Richfield Co., 962 F.3d 937, 941 (7th Cir. 2020)
(noting that removal allegations need only be “facially plausible”);
Agyin v. Razmzan, 986 F.3d 168, 175 (2d Cir. 2021) (“Not only must
the words of § 1442 be construed broadly but a court also must
credit [the] [d]efendants’ theory of the case when evaluating the
relationship between the defendants’ actions and the federal
officer.” (quotations omitted)).
1. The defendants were persons “acting under” EPA
when they undertook to remediate the pollution
emanating from the Plant Site 14
The defendants satisfy the first prong of the federal officer
removal test because they acted under EPA when remediating the
pollution on and around the Plant Site. The Supreme Court has
explained that the relationship between the officer or agency and
the private entity “acting under” the agency “typically involves
subjection, guidance, or control.” Watson, 551 U.S. at 151
(quotations omitted). In addition, the “private person’s ‘acting
under’ must involve an effort to assist, or to help carry out, the
duties or tasks of the federal superior.” Id. at 152 (emphasis in
original). “In other words, the private person must help federal
officers fulfill a basic governmental task that the government
otherwise would have had to perform.” Caver, 845 F.3d at 1143. At
the same time, this help or assistance must involve more than
14 The parties do not dispute that the defendants qualify as persons within the
meaning of the statute. See Caver, 845 F.3d at 1142.
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24 Opinion of the Court 23-13200
“simply complying with the law.” Watson, 551 U.S. at 152 (emphasis
in original).
A private firm’s compliance (or noncompliance) with
federal laws, rules, and regulations does not by itself
fall within the scope of the statutory phrase “acting
under” a federal “official.” And that is so even if the
regulation is highly detailed and even if the private
firm’s activities are highly supervised and monitored.
Id. at 153.
The City does not dispute that the defendants are subject to
EPA’s guidance and control of their remediation efforts. It argues,
however, that the defendants are not assisting EPA with its own
governmental task but simply complying with EPA regulation.
We disagree.
Two cases illustrate the distinction between “acting under”
and mere compliance. First, in Watson the Supreme Court
determined that Philip Morris, a tobacco company, was not “acting
under” the Federal Trade Commission (“FTC”) when it advertised
“light” cigarettes that indicated “lower tar and nicotine levels than
those present in other cigarettes.” Id. at 146. Philip Morris argued
that it was “acting under” the FTC because the plaintiffs were
essentially challenging the FTC-imposed method of testing
cigarettes when the plaintiffs argued that Philip Morris’s cigarettes
were more potent than its advertising suggested. Id. The Court
disagreed, concluding that Philip Morris was not “perform[ing] a
job that,” otherwise, “the Government itself would have had to
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23-13200 Opinion of the Court 25
perform,” id. at 154, nor did the FTC’s regulation and supervision
of Philip Morris’s testing constitute “a delegation of authority,” id.
at 157. Instead, the “FTC/Philip Morris relationship” was a “usual
regulator/regulated relationship,” which did not “bring[] Philip
Morris within the terms of the [federal officer removal] statute.”15
Id. at 157; see also Schleider v. GVDB Operations, LLC, 121 F.4th 149,
159 (11th Cir. 2024) (concluding that an assisted living home
complying with federal COVID-19 orders could not remove a case
to federal court because, “aside from allegedly complying with
‘orders’ and ‘instructions’ from the Secretary and HHS, Defendants
ha[d] failed to show that they helped or assisted a federal agency to
perform its duties or tasks” (alterations adopted)).
Next, in Caver we came to the opposite conclusion and
determined that a company “acted under” a federal agency when
considering the relationship between a rural electric cooperative
and the U.S. Department of Agriculture Rural Utilities Services
(“RUS”). 845 F.3d at 1143–44. We first noted that RUS highly
regulated the defendant, “demonstrat[ing] the close and extensive
relationship between [the defendant] and RUS” and the “significant
level of control” RUS exercised over the defendant. Id. at 1143.
But, as Watson made clear, even significant regulation, standing
15 The Watson Court offered other examples of “help[]” or “assist[ance]” that
demonstrated compliance rather than “‘acting under’ a federal official who is
giving an order or enforcing the law”: “[t]axpayers who fill out complex
federal tax forms, airline passengers who obey federal regulations prohibiting
smoking, [and] for that matter well-behaved federal prisoners.” 551 U.S. at
152.
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26 Opinion of the Court 23-13200
alone, would not be enough for removal to be proper. Id. at 1142.
Our analysis therefore proceeded to determine that the
relationship between the government and the defendant went
beyond regulation: rural electric cooperatives functioned as
“instrumentalities of the United States” that existed to carry out the
government’s objective of “bringing electricity to sparsely
populated rural areas that would not otherwise receive electricity.”
Id. at 1143. Because the defendant “assist[ed] the RUS by
performing a job that, in the absence of a contract with a private
firm, the Government itself would have had to perform,” we
concluded that it was “acting under” RUS and thus met the first
prong of the federal officer removal test. Id. at 1144 (alteration
adopted) (quotations omitted).
Watson and Caver provide the framework for our decision in
this case. Does EPA simply regulate the defendants, requiring
them to comply with its directives, or are the defendants’
remediation efforts assisting EPA by performing a task that EPA
would otherwise have to perform? CERCLA’s text and the consent
decree answer this question: CERCLA makes EPA responsible for
the remediation efforts on the Plant Site, a responsibility it can, and
did, delegate to the defendants when it required them to undertake
various remediation actions and entered a consent decree with the
defendants calling for further remediation. See Atl. Richfield, 590
U.S. at 6.
Congress enacted CERCLA, 42 U.S.C. § 9601 et seq., also
known as the “Superfund statute,” to address “the serious
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23-13200 Opinion of the Court 27
environmental and health risks posed by industrial pollution.”
Burlington N. & Santa Fe Ry. Co. v. United States, 556 U.S. 599, 602
(2009). CERCLA provides “a comprehensive scheme for the
cleanup of hazardous waste sites.” Broward Gardens Tenants Ass’n
v. EPA, 311 F.3d 1066, 1071 (11th Cir. 2002). CERCLA “directs EPA
to compile and annually revise a prioritized list of contaminated
sites for cleanup, commonly known as Superfund sites.” Atl.
Richfield, 590 U.S. at 6 (citing 42 U.S.C. § 9605). EPA, wielding
authority delegated by the President, must either “clean those sites
itself or compel responsible parties to perform the cleanup.” Id.
(citing 42 U.S.C. §§ 9604, 9606, 9615).
The statute and implementing regulations require EPA to
develop a cleanup plan that includes “a remedial investigation and
feasibility study to assess the contamination and evaluate cleanup
options” (which EPA will perform or order a private party to
conduct) and “extensive public consultation,” including public
notice and comment and “substantial and meaningful involvement
by each State” in the choice of a cleanup plan. Id. at 7 (quotation
omitted) (first citing 40 C.F.R. § 300.430 (2019); and then citing 42
U.S.C. §§ 9613(k), 9617, 9621(f)(1)). Once the feasibility study
begins, “‘no potentially responsible party may undertake any
remedial action’ at the site without EPA approval.” Id. (quoting 42
U.S.C. § 9622(e)(6)).
Each of these steps has taken place in this case, and EPA has
tasked the defendants with the responsibilities EPA would
otherwise have had to accomplish itself. EPA ordered the
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28 Opinion of the Court 23-13200
defendants to undertake a remedial investigation and feasibility
study in 1995 and shortly thereafter placed the Plant Site on the
CERCLA National Priorities List. Rather than “clean th[e] site[]
itself,” EPA chose to compel the defendants “to perform the
cleanup.” See Atl. Richfield, 590 U.S. at 6. Thus, in the years
following the investigation and study, EPA directed the defendants
to undertake various remediation actions such as “remov[ing] one
foot of soil from thirteen acres of the marsh and sediment in creeks
in front of the old Honeywell trash dump.” Ultimately, in 2016,
the defendants and EPA entered a consent decree binding the
parties to EPA’s chosen remediation plan (as outlined in EPA’s final
Record of Decision). The consent decree affirmed that EPA had
followed CERCLA’s required steps (including public notice and
opportunity for State involvement).
The consent decree demonstrates that EPA maintained
considerable authority over the remediation activities. It explained
that EPA could designate a “Project Coordinator” along with
“other representatives, which may include [EPA’s] employees,
contractors and/or consultants, to oversee the Work,” oversight
that “include[d] the authority to halt the Work and/or to conduct
or direct” emergency response actions when “necessary.” EPA
could also require the defendants to “conduct community
involvement activities under EPA’s oversight” including
“designation of a Community Involvement Coordinator and
implementation of a technical assistance plan.” The consent decree
also outlined that EPA could take over performance of the
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23-13200 Opinion of the Court 29
remediation work if it determined that the defendants were not
adequately implementing the remediation plan.
The details of CERCLA’s statutory scheme and the history
of EPA’s involvement here show that the defendants are acting
under EPA in carrying out remediation efforts at the Plant Site:
EPA exercised a “significant level of control” over the defendants,
and the defendants were carrying out CERCLA and EPA’s
objectives when they engaged in remediation efforts. See Caver, 845
F.3d at 1143. More importantly, because CERCLA tasks EPA with
cleaning up hazardous waste, directing it either to remediate such
pollution itself or to “compel responsible parties to perform the
cleanup,” Atl. Richfield, 590 U.S. at 6, the defendants assisted EPA
by “perform[ing] a job that . . . the Government itself [otherwise]
would have had to perform.” Watson, 551 U.S. at 154; see Ruppel v.
CBS Corp., 701 F.3d 1176, 1181 (7th Cir. 2012) (holding this prong is
met when “the federal government uses a private corporation to
achieve an end it would have otherwise used its own agents to
complete”). Just as in Caver, the defendants operate—in a limited
manner—as “instrumentalities of the United States” for the
purpose of cleaning the Plant Site on behalf of EPA. 16 Id. at 1143.
16 Although the City’s allegations relate to pollution that has traveled to its
own property, as well as pollution at the Superfund site, the defendants argue
that CERCLA and the consent decree govern all their remedial actions related
to pollution from the Superfund site, not just remediation on the site itself. See
42 U.S.C. § 9622(e)(6) (noting that, after a consent decree has been entered,
“no potentially responsible party may undertake any remedial action at the
facility unless such remedial action has been authorized by the President” USCA11 Case: 23-13200 Document: 82-1 Date Filed: 08/03/2026 Page: 30 of 39
30 Opinion of the Court 23-13200
The City argues that we should be persuaded by a Fourth
Circuit case holding that defendants seeking § 1442 removal were
not “acting under” EPA when EPA required them “to perform
certain remedial measures to obtain an operating permit.” W. Va.
State Univ. Bd. of Governors v. Dow Chem. Co., 23 F.4th 288, 301 (4th
Cir. 2022) (“WVSU”). It is true that the Fourth Circuit case shares
some surface similarities with this one: both involve
environmental pollution emanating from a property owned by the
defendants, and in both cases the defendants worked with EPA to
identify and implement necessary corrective actions. See id. at 292–
94. But the defendants’ relationship with EPA in WVSU was
governed, not by CERCLA, but by the Resource Conservation and
Recovery Act (“RCRA”)—a critical distinction. Under RCRA, the
defendants applied for a permit to operate hazardous waste
management units, and EPA granted the permit with a general
condition that the defendants had an ongoing obligation to comply
with any corrective measures EPA imposed. Id. at 292–94. The
WVSU defendants attempted to argue that they were “acting under
EPA authority” because their “corrective actions were taken only
at the direction and oversight of EPA, which . . . EPA itself would
through EPA); id. § 9601(9) (defining “facility” as “any site or area where a
hazardous substance has been deposited . . . or otherwise come to be
located”). See Atl. Richfield, 590 U.S. at 17–23 (explaining these provisions). At
this time, we need not decide whether the defendants’ argument about the
scope of CERCLA and the consent decree under these provisions is correct on
this point, since we “credit the [defendant’s] theory of the case for purposes of
[all] elements of [the court’s] jurisdictional inquiry.” Jefferson County, 527 U.S.
at 432.
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23-13200 Opinion of the Court 31
have performed under CERCLA if Defendants had not.” Id. at 303
(alteration adopted) (quotations omitted). But the Fourth Circuit
found that the defendants were simply regulated by EPA pursuant
to RCRA, as Philip Morris was regulated by the FTC in Watson, and
thus removal was improper. Id. at 302–06. Crucially, the WVSU
court explicitly distinguished its facts from a hypothetical case
where “the federal government [had] ordered a ‘cleanup’ under
CERCLA and [had] taken over remediation responsibilities” on the
property, concluding that the defendants’ argument invoking
CERCLA was speculative and irrelevant, given the “detailed and
lengthy procedure” needed to designate the property a Superfund
site and develop a remedial action plan in the first place. Id. at 306;
cf. Mays v. City of Flint, 871 F.3d 437, 447 (6th Cir. 2017) (concluding
that a state environmental agency was not entitled to removal
simply because EPA could “intervene if a state fails to properly
exercise its primary enforcement authority”).
No such speculation is needed here. EPA has already
executed CERCLA’s lengthy procedure and adopted a remedial
plan under which EPA has chosen to have the defendants carry out
the necessary remediation efforts as required by the consent
decree. Thus, the defendants do more than “simply comply[]” with
“federal laws, rules, and regulations,” Watson, 551 U.S. at 152–53;
rather, they are “help[ing] federal officers fulfill a basic
governmental task that the government otherwise would have had
to perform,” Caver, 845 F.3d at 1143.
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32 Opinion of the Court 23-13200
Accordingly, we conclude that the defendants were “acting
under” EPA in the context of their remediation efforts on the
Superfund site, satisfying the first prong of the federal officer
removal test.
2. The City’s allegations and state tort claims are “for or
relating to” the defendants’ remediation activities as
directed by EPA
Under the second prong of the federal officer removal test,
we consider whether the actions forming the basis of the City’s
claims are “closely connected” to the defendants’ actions taken
under color of law. Plaquemines Parish, 146 S. Ct. at 1060. The
defendants argue that they satisfy this prong of the test because the
defendants’ remediation efforts, governed by CERCLA and the
consent decree, are “critical to the City’s theory of liability for
continuing nuisance and continuing trespass.” 17
The federal officer removal statute allows for removal of
cases “for or relating to any act under color of such office,” 28
U.S.C. § 1442(a)(1), language we have interpreted to call for only
“a connection or association between the act in question and the
federal office” rather than a strict causal relationship, Caver, 845
F.3d at 1144 (quotations omitted); see also Plaquemines Parish, 146 S.
Ct. at 1060 (“[A] removing defendant need not show that his federal
17 The City does not argue, on appeal, why the defendants fail to meet the
second prong of the federal officer removal test, asserting only that the
defendants are not “de facto federal agent[s].”
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23-13200 Opinion of the Court 33
duties specifically required or strictly caused the challenged
conduct.”). While “a tenuous, remote, or peripheral” relationship
between the “challenged conduct and the performance of [the
defendants’] federal duties” is not sufficient, “[o]ne thing can relate
to another even if the connection is indirect” and “even if it was
not specifically designed to affect it.” Plaquemines Parish, 146 S. Ct.
at 1061, 1060 (quotations omitted); see also id. at 1062 (“[T]he
ordinary meaning of ‘relating to’ does not require the defendant to
show that his federal duties specifically invited his challenged
conduct.”).
Caver demonstrates the type of “connection or association”
that satisfies this prong of the test. In Caver, the defendant argued
that it could not make the cash distributions for which the plaintiffs
were suing because doing so would cause it to breach its agreement
with RUS, the federal agency. 845 F.3d at 1145. We determined
the defendant had met the connection prong because it alleged that
“the acts for which [it was] being sued . . . occurred because of [its]
performance of its duties” under its agreement with RUS. Id.; see
Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286, 296 (5th Cir. 2020)
(en banc) (concluding a defendant satisfied this prong when the
defendant performed the activities forming the basis of the lawsuit
“pursuant to directions of the U.S. Navy”). On the other hand, we
have rejected a federal officer’s attempt to remove when his official
duties did not overlap with the activities for which he was being
prosecuted. See Meadows, 88 F.4th at 1349; see also Cabalce v. Thomas
E. Blanchard & Assocs., Inc., 797 F.3d 720, 730 (9th Cir. 2015)
(affirming remand when a defendant “failed to provide any
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34 Opinion of the Court 23-13200
evidence of federal control or supervision over” the actions
plaintiffs challenged, as relevant to the court’s discussion of the “for
or relating to” prong).
As in Caver, the allegations in the City’s complaint and the
defendants’ notice of removal demonstrate that the City’s claims
against the defendants are closely connected to the defendants’
remediation efforts as directed by EPA. The City alleges that
“Honeywell’s activities at the Plant Site caused and continue to
cause toxic mercury and PCBs to be spilled, discharged and
deposited into the Turtle River . . . and onto property of the City
of Brunswick.” It has brought claims for “continuing trespass” and
“continuing nuisance,” alleging that the “[d]efendants’ continuing
failure and refusal to permanently remove their pollution from
property of the City of Brunswick[] unreasonably and substantially
interferes with the City’s right to exclude others and the pollutants
of others from its property” and with “the City’s use and
enjoyment of its property.” 18 But the defendants’ notice of removal
alleges that their remedial actions are governed by their consent
decree with EPA, which, along with CERCLA’s text, prevents
them from undertaking any remedial actions without EPA’s
authorization. Thus, according to the defendants’ allegations, “the
acts for which [they are] being sued”—failure to adequately
remediate pollution on the City’s property—“occurred because of
18 The City does not allege that either defendant is continuing to dump new
pollutants on its property, just that the defendants are not adequately dealing
with the pollution already present.
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23-13200 Opinion of the Court 35
[their] performance of [their] duties” and their consent decree with
EPA. Caver, 845 F.3d at 1145. The defendants have “plausibly
alleged a close relationship between [their] challenged conduct and
the performance of [their] federal duties.” 19 Plaquemines Parish, 146
S. Ct. at 1061.
We therefore conclude that the City’s continuing trespass
and nuisance claims for the defendants’ continued failure to
remediate the pollution on the City’s property are related to the
defendants’ CERCLA-governed remediation plan, meeting the
second prong of the federal officer removal test. 20
19 In its briefing below, the City argued that the defendants failed the “causal
connection” prong because it was “not suing Defendants for the way they
have conformed or failed to conform to the Consent Decree” but rather “for
the pollution that migrated into the Marshes of Glynn long before EPA
became involved.” But the language of the complaint alleges “continuing
trespass” and “continuing nuisance,” language which, on its face, challenges
the sufficiency of the defendants’ current remediation efforts by asserting that
pollution continues to emanate from the Plant Site onto the City’s property.
And even if the claims in the complaint also encompass the defendants’ actions
before EPA’s involvement, removal would still be proper. See Nadler v. Mann,
951 F.2d 301, 306 n.9 (11th Cir. 1992) (quoting another case for the proposition
that “if one claim cognizable under Section 1442 is present, the entire action is
removed, regardless of the relationship between the Section 1442 claim and
the non-removable claims”).
20 Our holding today serves to clarify this Court’s interpretation of the “for or
relating to” prong of the federal officer removal test. A previous version of
the relevant provision allowed for removal of only those actions “for any act
under color of such office.” See 28 U.S.C. § 1442(a)(1) (2010). But in 2011
Congress amended the provision, adding the words “or relating to.” Caver,
845 F.3d at 1144 n.8. Even after this amendment, we continued to require a USCA11 Case: 23-13200 Document: 82-1 Date Filed: 08/03/2026 Page: 36 of 39
36 Opinion of the Court 23-13200
3. The defendants have raised a colorable federal
defense
Finally, for the third prong of the federal officer removal
test, we ask whether the defendants have raised a colorable federal
defense. Caver, 845 F.3d at 1145. The defendants argue that the
City’s claims are preempted by federal law because the City seeks
to hold the defendants liable for failing to remove pollution from
the Plant Site and surrounding areas, which conflicts with the
“causal connection” or a “causal nexus” between a plaintiff’s claims and a
defendant’s conduct, although we recognized that the provision’s amendment
“broaden[ed] the scope of acts that allow a federal officer to remove a case to
federal court.” Id. at 1144–45 & 1144 n.8; see Meadows, 88 F.4th at 1348
(requiring the defendant to “establish some causal connection or association
between [the alleged criminal actions] and his federal office” but noting that
“the bar for proof is quite low” (quotations omitted)). The Supreme Court
has since affirmed that “a removing defendant need not show that his federal
duties specifically required or strictly caused the challenged conduct.”
Plaquemines Parish, 146 S. Ct. at 1060; see Town of Pine Hill v. 3M Co., --- F.4th ----, 2026 WL 2178967, at *3 (11th Cir. July 29, 2026) (observing that “the hurdle
erected by this requirement is quite low” (quotations omitted)). Instead, the
“for or relating to” language requires only that the acts challenged by the
removed lawsuit are “closely connected to the performance of [the
defendants’] federal duties.” Plaquemines Parish, 146 S. Ct. at 1062. Thus, while
Plaquemines Parish does not change the test we have applied to the second
prong pursuant to the broadened statutory language, it does suggest that we
retire the “causal connection” and “causal nexus” language we have
previously used.
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23-13200 Opinion of the Court 37
defendants’ remedial obligations under EPA’s CERCLA-based
directives. 21
To satisfy this prong of the federal officer removal test, a
“colorable federal defense need only be plausible; its ultimate
validity is not to be determined at the time of removal.” Id.
(quotation omitted); see Mesa v. California, 489 U.S. 121, 129 (1989)
(“[T]he validity of the defence authorized to be made is a distinct
subject” and “has no connection whatever with the question of
jurisdiction.” (quotation omitted)). Because one key purpose of
federal officer removal is to allow federal defenses to be tried in
federal court, the “law does not require that the removing
defendant virtually win his case before it can be removed.” Caver,
845 F.3d at 1145; see Isaacson v. Dow Chem. Co., 517 F.3d 129, 138 (2d
Cir. 2008) (stating that a defendant need only “raise a claim that is
defensive and based in federal law” and “aris[es] out of [the party’s]
official duties” (quotations omitted)). 22 Thus, in Caver, we accepted
21 As with the second prong, the City offers no argument on appeal why the
defendants fail the third prong of the federal officer removal test.
22 A recent Fifth Circuit decision demonstrates the low bar for a colorable
federal defense. See Caris MPI, Inc. v. UnitedHealthcare, Inc., 108 F.4th 340, 346–
47 (5th Cir. 2024). The defendant offered two federal defenses: failure to
exhaust and preemption. The Fifth Circuit concluded that the failure to
exhaust defense was colorable when asserted, allowing for removal, even
though the court proceeded to reject that argument on its merits later in the
same opinion. Id. at 346, 349. The court also credited the defendant’s
preemption defense as a plausible, colorable defense, highlighting that, while
the Fifth Circuit had not yet decided that particular preemption question, the
plaintiff had “cite[d] no contrary caselaw.” Id. at 347.
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38 Opinion of the Court 23-13200
as plausible the defendant’s federal preemption defense when the
Supreme Court had “expressly left open the possibility” that
preemption could attach in a case like the defendant’s. 845 F.3d at
1146.
The defendants in this case have offered a colorable federal
defense: they plausibly contend that federal directives pursuant to
CERCLA preempt state tort actions. “Conflict preemption can
occur when (1) it is impossible for a party to comply with both state
and federal law, or (2) the state law stands as an obstacle to the
accomplishment and execution of the full purposes and objectives
of Congress.” Lawson-Ross v. Great Lakes Higher Educ. Corp., 955
F.3d 908, 920 (11th Cir. 2020) (quotations omitted). A conflict
preemption analysis asks whether the state law or legal action
“stands as an obstacle to the carefully calibrated federal regime.”
Odebrecht Constr., Inc. v. Sec’y, Fla. Dep’t of Transp., 715 F.3d 1268,
1274 (11th Cir. 2013). Thus “a conflict between federal and state
law is imminent when two separate remedies are brought to bear
on the same activity.” Ga. Latino All. for Hum. Rts. v. Governor of Ga.,
691 F.3d 1250, 1267 (11th Cir. 2012) (quotations omitted).
As discussed above, CERCLA requires that once a party’s
obligations have been defined “pursuant to an administrative order
or consent decree [after] a remedial investigation and feasibility
study for a particular facility,” “no potentially responsible party
may undertake any remedial action at the facility unless such
remedial action has been authorized by the President.” 42 U.S.C.
§ 9622(e)(6). And the statute’s definition of “facility” plausibly
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23-13200 Opinion of the Court 39
includes the City’s property, an “area where a hazardous substance
has . . . come to be located.” Id. § 9601(9). The defendants have
thus plausibly asserted that it would be impossible for them to
comply both with their obligations under CERCLA and the
consent decree and with potential remedies under state tort law;
such remedies might counteract EPA’s “carefully crafted federal
regime” of remediation. See Odebrecht Constr., 715 F.3d at 1274.
The Supreme Court has reserved the question of whether an EPAapproved restoration plan could preempt state law, see Atl.
Richfield, 590 U.S. at 25–26, and the City has cited no authority
foreclosing this preemption defense. We thus conclude that the
defendants have raised a colorable federal defense that CERCLA
preempts the City’s state tort claims.
* * *
In sum, then, we hold that the defendants have satisfied the
three-prong test for federal officer removal and were entitled to
remove this action pursuant to § 1442(a)(1) because they were
acting under EPA when they engaged in remediation efforts
controlled by CERCLA and the consent decree; the City’s state tort
claims are related to those remediation efforts; and the defendants
have raised a colorable federal preemption defense.
IV. Conclusion
For the foregoing reasons, we deny the City’s motion to
dismiss the appeal and reverse the district court’s remand to Glynn
County Superior Court.
REVERSED.