Federal officer jurisdiction is having a moment. In November 2024, we called federal officer jurisdiction the quiet middle child of the federal jurisdiction family, but then earlier this year the Supreme Court decided Chevron USA Inc. v. Plaquemines Parish. That opinion held that federal officer jurisdiction was broader than many previously thought, which we commented on here.
The Supreme Court’s opinion got Bexis to start beating the federal officer jurisdiction drum (actually, in true Bexis form, he was restarting a riff that he took up way back in 2020). We more recently posted on a case called Griffin v. Optum, Inc., where the Eighth Circuit approved federal officer jurisdiction over claims against pharmacy benefit managers (“PBMs”) in the long-running opioid litigation. Because the defendant PBMs performed their functions under contracts with a federal agency, they successfully removed a lawsuit filed by a state attorney general to federal court, despite the AG’s efforts to “disclaim” recovery based on any federal-related activity.
The Second Circuit has now joined the chorus, and it too has approved federal officer jurisdiction over opioid-related claims against PBMs. In County of Westchester v. Express Scripts, Inc., No. 24-1639, 2026 WL 2589574 (8th Cir. Sept. 2, 2026), multiple New York counties sued PBMs over harms allegedly caused by the use and abuse of opioid pain medications. We have seen this play before. The counties alleged that PBMs contributed to the alleged harms through their benefit management function, such as managing drug formularies and rebates.
The PBMs, however, performed formulary and rebate work in part under contracts with the Defense Department, the federal Office of Personnel Management, and the VA. So they removed the cases to federal court under federal officer jurisdiction.
This is where it gets interesting. The counties cynically amended their complaints to add broad disclaimers purporting to abandon “any claims or recovery arising out of the Removing Defendants’ work on behalf of any federal entity,” and they moved to remand. We have seen this play before too, and in the Eighth Circuit’s Griffin case, the “disclaimer” did not work.
It did not work in the Second Circuit either. The central problem with the disclaimers is one of indivisibility. As the court explained, the PBMs did not maintain separate federal and non-federal books of business. Instead, they conducted singular negotiations with pharmaceutical manufacturers on behalf of all clients—federal plans and private plans alike. In addition, the alleged community-wide harms were similarly indivisible, flowing from conduct that could not be neatly separated into federal and non-federal components.
The “disclaimers” therefore were ineffective. In so holding, the Second Circuit followed opinions from multiple other circuits. Relying for example on the First Circuit’s reasoning in Puerto Rico v. Express Scripts, Inc., the Second Circuit explained that a valid disclaimer must “clearly carve out certain factual bases, whether by time span or location,” so that no state court would ever need to evaluate whether the defendant acted under a federal officer. By contrast, a disclaimer that requires the state court “to determine the nexus between the charged conduct and federal authority” is not valid because it is circular. If permitted, such a disclaimer would require federal contractors to prove in state court that they were acting under federal contracts, which would negate their right to have a federal defense judged in federal court in the first place.
The Second Circuit found that the plaintiffs’ disclaimers fell squarely into the circular category. Whether in state or federal court, the plaintiffs were targeting rebate negotiations that were the same for federal and non-federal programs. Federal defenses would likewise cover the whole of the alleged conduct. In other words,
As a result, “Whether in state or federal court, Defendants will continue to press that the alleged conduct and resulting harm necessarily implicate their federal work and are subject to federal defenses. More fundamentally, in deciding whether to enforce the disclaimers, either court will have to ascertain whether the harms from opioids distributed via federal and non-federal programs can be disaggregated at all.” County of Westchester, at *8. That determination belongs in federal court.
Having determined that the counties’ disclaimers were ineffective, the Second Circuit held that federal officer jurisdiction under 28 U.S.C. § 1442(a)(1) existed. More specifically, the plaintiffs’ claims met the three-part test for federal officer removal under the Supreme Court’s Plaquemines Parish opinion.
First, the PBMs were acting under a federal officer. They administered formularies, processed claims, negotiated rebates, etc.—tasks that federal agencies would otherwise have had to perform themselves. One PBM defendant operated under a detailed Statement of Work subject to weekly agency briefings and formal reviews. Another had a similar deal with the VA, showing an “unusually close relationship involving detailed regulation, monitoring, or supervision” that satisfies the “acting under” prong.
Second, the PBMs were sued for conduct “relating to any act under color of [federal] office.” Under Plaquemines Parish, this requirement “sweeps broadly.” The court found a clear relation between the plaintiffs’ allegations and the PBMs’ federal work because the rebate negotiations implicated federal clients, and they could not be bifurcated between federal and non-federal plans. Even the diffuse public-nuisance claims—targeting community-wide costs—necessarily encompass harms flowing from federally-administered prescription drug programs.
Third, the PBMs were asserting a colorable federal defense. Namely, a government-contractor defense, a defense under a plan for military personnel, and federal preemption under the Federal Employees Health Benefits Act. The court noted that these defenses need not be clearly sustainable—only colorable—and the plaintiffs’ sole counterargument was that they had disclaimed claims implicating those defenses, which the court had already rejected.
Federal officer jurisdiction is no longer the quiet middle child, if it ever was. Following County of Westchester and other cases, including from the Supreme Court, we would say that federal officer jurisdiction is ready to shine.