Products Liability Law Daily Wrap Up, JURISDICTION—CHEMICAL PRODUCTS—1st Cir.: Appeals court reverses district court’s remand of toxic dumping case against GE, (Jul 17, 2026)

By Molly Platnick

The lawsuit related to the company’s work under government authority.

The U.S. Court of Appeals for the First Circuit reversed and remanded a Massachusetts district court’s decision denying General Electric Company removal under the federal officer removal statute. The case was brought by a mother who claimed the company’s polychlorinated biphenyls (PCBs) disposal caused her son to develop leukemia. The electric company argued it was “acting under” the government’s authority when it produced PCB-containing products during World War II. The appeals court agreed, citing case law interpreting “acting under” as any contract where the government directs a contractor to produce a specialized product. Following a 2011 amendment to the federal officer removal statute, the electric company did not need to prove a causal nexus between the instant lawsuit and its government work. It successfully showed the complaint “related to” its use and manufacture of PCBs for the government. The court sent the case back to the district court to decide whether the company presented a colorable federal defense (Czernov v. General Electric Co., No. 25-1314 (1st Cir. Jul. 14, 2026)).

Background—from plaintiff’s complaint. The plaintiff alleged that PCBs from GE’s plant in Pittsfield, Massachusetts caused her son to develop leukemia.

History of PCB. The electric company manufactured transformers and capacitors containing PCBs from the 1930s through 1970s. The electric company purchased PCBs from a third-party chemical company and blended them into a “proprietary mix” called Pyranol. The chemical compound allows electrical devices to be smaller, cheaper, and “markedly more reliable.” During World War II the federal government purchased Pyranol-containing products from the electric company for military use. Most of these orders were fulfilled from the Pittsfield plant.

Starting in the 1940s, the electric company began dumping the PCBs used in its manufacturing in areas throughout the surrounding community, including near the son’s elementary school. With increased awareness of PCBs’ negative health consequences, Congress in 1980 authorized the EPA to compel private companies to remediate their PCB pollution. In 2000, the electric company entered into a consent decree with the EPA, Massachusetts, and Connecticut to remediate areas around Pittsfield, including the son’s elementary school.

Procedural history. In August 2023, the mother sued the electric company in Massachusetts on behalf of herself and her son. She asserted claims for strict liability, negligence, fraudulent misrepresentation, private and public nuisance, and loss of consortium.

The electric company timely removed the case to federal court based on the federal officer removal statute. The mother moved to remand, claiming the company had not satisfied the removal statute’s requirements. The district court granted the remand, which it then stayed pending the instant appeal.

Legal standard—Federal officer removal statute (28 U.S.C. § 1442(a)(1)). The federal officer removal statute gives an absolute removal to anyone acting under a government officer or agency “in an official…capacity, for or relating to any act under color of such office…or on account of any authority claimed under any Act of Congress.” A private party seeking removal under § 1442(a)(1) must show (1) it was acting under a federal officer’s authority, (2) the charged conduct was for or relating to that authority, and (3) it can assert a colorable federal defense to the suit. The court emphasized the distinction between the first and second elements: “acting under” pertains to the relationship between the removing party and the government, and “for or relating to” describes the relationship between the allegations in the complaint and the federal officer’s work.

The electric company theorized it was entitled to removal under federal officer jurisdiction based on its work (1) for the federal government during World War II and (2) remediating pollution based on the consent decree with the EPA.

Sale of PCB products to government. The electric company established the requisite relationship for removal under § 1442(a)(1) because it was “acting under” the government’s authority when it provided PCB-containing products during World War II and the mother’s claims “relate[d] to” that authority, the appeals court held.

“Acting under.” The electric company argued it had a “special relationship” with the federal government and did not merely provide “off-the-shelf products.” A private contractor has the “requisite relationship” to be “acting under” the government if it “manufactures goods for the government, at the government's request, and to satisfy a governmental need.” Here, the government needed Pyranol during World War II, and the electric company manufactured it for the government. Pyranol was not a “widely available” product that the government could have obtained through a “traditional commercial relationship.” The government directed the company which products to produce and required it to “meet government timelines…[and] adapt its facilities to meet the demands.” The court determined that the “nature and specificity of the defense orders [and] the specialized nature of the items provided” created an “usually close” relationship that was “enough to conclude [the company] acted as a federal officer.”

The court rejected the district court’s decision that the electric company was not “acting under” the government’s authority when it dumped the PCBs around Pittsfield. The lower court stated the government must exercise “tight control” for a private contractor to be considered “acting under.” However, in Gov’t of Puerto Rico v. Express Scripts, the First Circuit explicitly ruled the provision “must be liberally construed.” Similarly, in Watson v. Phillip Morris, the Supreme Court held a contractor “acts under” the government if it “helps the government to produce an item that it needs and helps officers fulfill … basic governmental tasks.”

The mother contended that under the First Circuit’s decision Rhode Island v. Shell Oil, the electric company only “acted under” the government’s authority if the government “specifically directed [the company] to undertake the activities [the mother] alleges caused her and her son's injuries.” The court dismissed this as a misreading of Shell, which concerned § 1442(a)(1)’s “relating to” element, not “acting under.”

The court clarified it was not setting a “bright line” for defining “acting under” and recognized there was a spectrum for government contracts.

“For or relating to” (nexus). The mother claimed there was no “causal nexus” between her allegations and the electric company’s work as a government contractor because the company did not dump PCBs under the government’s authority. In 2011, Congress broadened the federal officer removal statute to allow defendants to remove claims “relating to” their acts under government authority. This court described the “post-amendment language” as abandoning any causation requirement, and defendants need only show some association with or connection with their acts under a federal officer to remove the case to federal court. Here, contrary to the mother’s argument, the electric company did not need to prove that its work under government authority directly caused the son’s leukemia. Even if the government did not direct the company to dump PCBs, the court was satisfied there was enough of an “association” between manufacturing PCBs for the government and disposing them around Pittsfield to warrant removal.

The court found the mother’s claims were not limited to PCB disposal, but also the electric company’s use and manufacturing of PCBs. In her complaint, the mother sought recovery based on Pyranol’s defective design and toxic manufacturing process and “for [the] ongoing use, misuse … and distribution of PCBs and Pyranol, as well as its storage.” The appellate court stated the district court erred in not considering the mother’s claims individually, for “[a]ny single claim is independently sufficient to satisfy” the “relating to” element.

Although the “for or relating to” element no longer requires defendants to show a causal nexus, the court here emphasized this was not a “close case.” The allegations and the electric company’s work for the government were not “tenuous, remote, or peripheral.”

Colorable federal defense. The district court did not reach § 1442(a)(1)’s third element, and the appellate court remanded and declined to consider whether the electric company established a colorable federal defense. The court instructed the lower court that “a federal defense is colorable unless it is 'immaterial and made solely for the purpose of obtaining jurisdiction' or 'wholly insubstantial and frivolous.’”

Because the electric company’s first theory satisfied the elements of federal officer removal, the court did not consider its second theory: remediating pollution based on the consent decree with the EPA.

The case is No. 25-1314.

Judge: Dunlap, J.

Attorneys: Thomas Edward Bosworth (Bosworth Law LLC) for Crystal Czerno. Michelle M. Byers (Campbell Conroy & Oneil PC) for General Electric Co.

Companies: General Electric Co.

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