Nos. 20-1635; 20-2545-48; 20-2550; 20-2556 ___________________________

Christopher Graves; Jeff Hall, et al.

lllllllllllllllllllllPlaintiffs - Appellees

v.

3M Company; Aearo Technologies LLC

lllllllllllllllllllllDefendants - Appellants ___________________________ Nos. 20-3108; 20-3607; 20-3613-14; 20-3616-17; 20-3620; 20-3627; 20-3634; 20-3636; 20-3642-45; 20-3647-49 ___________________________

Casey Copeland, et al.

lllllllllllllllllllllPlaintiffs - Appellees

v.

3M Company; Aearo Technologies LLC

lllllllllllllllllllllDefendants - Appellants

____________

Appeals from United States District Court for the District of Minnesota ____________ Submitted: June 15, 2021 Filed: October 20, 2021 ____________ Before LOKEN, KELLY, and ERICKSON, Circuit Judges. ____________ LOKEN, Circuit Judge

Plaintiffs are employees of civilian and military contractors who used Combat Arms Version 2 (“CAEv2") earplugs manufactured by Aearo Technologies and sold by 3M Company, which acquired Aearo Technologies in 2008 (collectively, “3M”). After suffering hearing damage or tinnitus, plaintiffs brought separate suits against 3M in Minnesota state court, asserting failure-to-warn claims under state law. 3M removed the actions to federal court, asserting federal officer defenses under 28 U.S.C. § 1442(a)(1). The district court granted plaintiffs’ motions to remand the cases to state court for lack of federal jurisdiction, concluding that § 1442(a)(1) was not a basis for removal.1 3M appeals the remand orders. We have jurisdiction to review remand orders when cases have been removed pursuant to § 1442. See 28 U.S.C. § 1447(d). Reviewing de novo, we affirm the remand orders in the Graves and Hall actions. We affirm in part and reverse in part the remand orders in the Copeland cases and remand for further proceedings.

1 In the district court, Graves, Hall et. al, and Copeland et. al, were three separate cases. On appeal, the parties agreed that the Graves and Hall appeals present the same facts and legal issue; we granted their request to consolidate those appeals. The Copeland appeal remains separate because it includes military contractor plaintiffs as to whom 3M asserts alternative theories of federal question jurisdiction. We resolve 3M’s appeals as to both groups of plaintiffs in this opinion.

-2- I. Background

In 1999, Dr. Doug Ohlin, Program Manager of Hearing Conservation for the U.S. Army Center for Health Promotion and Preventative Medicine, told Aearo that the Army needed a dual-ended earplug capable of blocking damaging noise from weapons fire while also allowing soldiers to hear each other when wearing them. Aearo submitted a sample dual-ended earplug in which one side was non-linear, providing mitigation of loud weapons fire while allowing soldiers to communicate, and the other side was a standard linear earplug. Dr. Ohlin rejected the first sample as too long, specifying that military earplugs needed to be shorter for various reasons, most importantly, to fit under a fastened Kevlar helmet. Aearo submitted a shortened version. After review, Dr. Ohlin issued a formal purchase order. In 2001, Aearo sent user instructions to Major Mark Little during testing and evaluation of the earplugs. To accommodate the shortened earplug stem, the instructions said to “fold back” the sealing rings of the outward plug to improve fit.

The military required Aearo to package CAEv2 earplugs purc