UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-1031

THE COUNTY BOARD OF ARLINGTON COUNTY, VIRGINIA,

Plaintiff - Appellee,

v. EXPRESS SCRIPTS PHARMACY, INC.; ESI MAIL PHARMACY SERVICE, INC.,

Defendants - Appellants, and MALLINCKRODT PLC; MALLINCKRODT LLC; SPECGX LLC; ENDO HEALTH SOLUTIONS INC.; ENDO PHARMACEUTICALS INC.; PAR PHARMACEUTICAL COMPANIES, INC.; PAR PHARMACEUTICAL, INC.; TEVA PHARMACEUTICALS USA, INC.; CEPHALON, INC.; BARR LABORATORIES, INC.; WATSON LABORATORIES, INC.; ACTAVIS PHARMA, INC.; ACTAVIS, LLC; ALLERGAN PLC; ALLERGAN FINANCE, LLC; MYLAN PHARMACEUTICALS, INC.; MYLAN INSTITUTIONAL INC.; INDIVIOR INC.; MCKESSON CORPORATION; MCKESSON MEDICAL- SURGICAL INC.; CARDINAL HEALTH, INC.; AMERISOURCEBERGEN DRUG CORPORATION; GENERAL INJECTABLES & VACCINES, INC.; INSOURCE, INC.; CVS HEALTH CORPORATION; CVS PHARMACY, INC.; CVS TN DISTRIBUTION, L.L.C.; WALGREENS BOOTS ALLIANCE, INC.; WALGREEN CO.; WALGREEN EASTERN CO., INC.; EXPRESS SCRIPTS HOLDING COMPANY; EXPRESS SCRIPTS, INC.; CAREMARK RX, L.L.C.; CAREMARKPCS HEALTH, L.L.C.; CAREMARK, L.L.C.; CAREMARKPCS, L.L.C.; UNITEDHEALTH GROUP INCORPORATED; OPTUM, INC.; OPTUMRX, INC.; WALMART, INC.; RITE AID CORP.; RITE AID OF VIRGINIA, INC.; RITE AID MID-ATLANTIC; RITE AID OF MARYLAND, INC.; ECKERD CORPORATION; DOES 1 -100; HENRY SCHEIN, INC.,

Defendants. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Anthony J. Trenga, District Judge. (1:19-cv-01446-AJT-JFA)

Argued: March 9, 2021 Decided: May 3, 2021

Before WILKINSON, NIEMEYER, and QUATTLEBAUM, Circuit Judges.

Reversed and remanded by published opinion. Judge Quattlebaum wrote the opinion, in which Judge Wilkinson and Judge Niemeyer joined.

ARGUED: Adriana Riviere-Badell, KOBRE & KIM LLP, Miami, Florida, for Appellants. R. Johan Conrod, Jr., SANFORD HEISLER SHARP, LLP, Nashville, Tennessee, for Appellee. ON BRIEF: Matthew I. Menchel, Miami, Florida, Julian W. Park, KOBRE & KIM LLP, San Francisco, California, for Appellants. Grant Morris, Kevin Sharp, Andrew Miller, SANFORD HEISLER SHARP, LLP, Nashville, Tennessee; Joanne Cicala, THE CICALA LAW FIRM PLLC, Dripping Springs, Texas; W. Edgar Spivey, KAUFMAN & CANOLES, P.C., Norfolk, Virginia, for Appellee.

2 QUATTLEBAUM, Circuit Judge:

This appeal involves the application of 28 U.S.C. § 1442(a)(1)—commonly referred to as the “federal officer removal statute”—to private actors. Under the statute, private actors can remove a case to federal court when they show that they: (1) acted under the direction of a federal officer; (2) possess a colorable federal defense; and (3) engaged in government-directed conduct that was causally related to the plaintiff’s claims. See Sawyer v. Foster Wheeler LLC, 860 F.3d 249, 254 (4th Cir. 2017). 1

Here, the County Board of Arlington County, Virginia (“Arlington”) sued a host of opioid manufacturers, distributers and pharmacies, including Express Scripts Pharmacy, Inc. and ESI Mail Pharmacy Service, Inc. (collectively the “ESI Defendants”), in state court for causing, or contributing to, the opioid epidemic in Arlington County, Virginia. The ESI Defendants removed the case to federal court pursuant to the federal officer removal statute. They claimed their operation of the TRICARE Mail Order Pharmacy (“TMOP”)

1 “The federal officer removal statute has had a long history.” Willingham v. Morgan, 395 U.S. 402, 405 (1969). The original removal statute was enacted “near the end of the War of 1812,” which was unpopular in New England due to a trade embargo with England. Watson v. Philip Morris Cos., Inc., 551 U.S. 142, 147 (2007). As a result, New England shipowners “filed many state-court claims against federal customs officials charged with enforcing [the em