We’ve posted twice recently about the potential jurisdictional benefits of the congressionally expanded “federal officer” basis for federal jurisdiction in tort litigation: 28 U.S.C. §1442 (a)(1). Our first post cited in passing Griffin v. Optum, Inc., ___ F.4th ___, 2026 WL 1239289 (8th Cir. May 6, 2026), as an example of courts already applying Chevron USA Inc. v. Plaquemines Parish, 146 S.Ct. 1052 (2026), “to cases involving other industries.”
On second thought, though, the “other industry” in Griffin − pharmacy benefits managers (“PBMs”) – is sufficiently adjacent to our sandbox that it warrants a post of its own. Indeed, Griffin is an opioid case, which makes it even more relevant, since plaintiffs make similar allegations against others in the chain of distribution of prescription drugs. One other salient feature of Griffin is that the plaintiff here was a state attorney general, and opioid cases brought by states have been particularly difficult to remove.
So here’s Griffin.
The state sued four PBMs for supposedly “contributing to an opioid epidemic. 2026 WL 1239289, at *1.
Pharmacy benefit managers enter into service agreements with their clients − federal and non-federal sponsors of health insurance plans − to administer prescription drug programs. As part of their services, the managers develop formularies, which are lists of prescription drugs covered by a health plan.
Id. A “central” function of a PBM is negotiating rebates – “post-sale discounts calculated based on the number of consumers that fill a prescription for the manufacturer’s drug.” PBMs get a cut of these rebates and pass “the remainder” to the various insurance plans that they service. Id. PBMs also “determine[ each] beneficiary’s coverage and copayment information.” Id. Critically, a couple of the PBM defendants performed these functions under a contract with a federal agency. Id.
For that reason, they removed the entire state AG action to federal court on the basis that some of their challenged activities were taken under the supervision of a federal officer. Id. The state claimed that, by “disclaim[ing] all federal claims, including claims against ‘any federal officer or person acting under any office of the United States for or relating to any act under color of such office,’” in its complaint, it had immunized the suit from federal jurisdiction. Id. at *2. The district court fell for that ruse, but the court of appeals did not, and ordered the suit to remain in federal court. Id.
Federal officer removal was “liberally construed” and “the typical presumption against removal does not apply.” 2026 WL 1239289, at *2 (citations and quotation marks omitted). The PBMs were “persons” within the meaning of the statute, “acted under the direction of a federal officer,” in a way that had “sufficient connection between those acts and the[plaintiff’s] claims for relief,” and had “a colorable federal defense.” Id. (citation omitted).
The key in Griffin was “acting under.” That statutory phrase was “broad, and must be liberally construed.” Id. (citations and quotation marks omitted). It includes assisting the government in conducting “basic governmental tasks” such as “providing “the government with a product that it needed or performing a job that the government would otherwise have to perform.” Id. (citation and quotation marks omitted) (emphasis added).
A PBM working for a government health program qualifies.
[The removing PBMs], at a minimum, acted under the direction of [a federal agency]. The [relevant federal statute] established a comprehensive program of health insurance for federal employees. Congress [intended] to improve the position of the government with respect to private companies in recruiting the best talent [by] . . . establish[ing] a partnership between [that agency] and private carriers. The [agency] contracts with private carriers and authorizes the carriers to subcontract with [PBMs] to provide coverage. The [PBMs] negotiate with manufacturers to obtain discounts, often in the form of rebates, for the drugs that are ultimately included on the plan’s formulary. When the [PBMs] negotiate with drug manufacturers, they play a key role in the [agency’] effort to carry out its duties . . . to provide prescription drug benefits. Accordingly, the [PBMs] perform a basic governmental task by performing a task that the government itself would otherwise have to perform.
Id. at *3 (citations and quotation marks omitted). The removing PBMs thus were subject to a variety of federal “regulations” and “guidelines” concerning “a variety of topics.” Id. at *4. These included mandatory contract terms providing federal “access to information at each claim and aggregate level” between the [PBMs] and pharmacies” so that the government could conduct audit “quarterly rebate guarantees, annual reconciliation and payments, actual billing and allocation of rebates, administrative fees, claim payments, fraud and abuse standards, performance guarantees, [and] pharmacy rebates.” Id. at *4.
Since the state’s claims in Griffin broadly attacked the PBMs’ handling of various rebates, the claims obviously “sufficiently related” to the services the moving defendant was performing for the government. Id. at *5. “The State claims that the rebates and fees induced the alleged collusion” to promote opioid overprescription. Id. Indeed, the complaint went on and on about rebates. Id. So in that sense, the state was hoist on its own petard.
Nor could the state immunize itself from federal officer jurisdiction with boilerplate “disclaimers”:
[N]o disclaimer, however worded, can help the State avoid a causal nexus between [the removing PBMs’] conduct on behalf of the federal government and the State’s] claims. [The removing PBMs] conduct[] rebate negotiations indivisibly for both plans under the [federal statute] and plans outside of [it]. [They] do[] not have separate rebate agreements with drug manufacturers for [federal] and non-[federal] plans, and none of the resulting discounts or rebates from the negotiations are exclusive to either [type of] plans. If [the removing PBMs] were liable for negotiating rebates on behalf of private clients, [they] would necessarily also be liable for negotiating rebates on behalf of the federal government—because it is the same negotiation.” Therefore, the State’s disclaimers do not, and could not, waive claims based on [the removing PBMs’] rebate negotiations undertaken on behalf of both the federal government and private clients.
Griffin, 2026 WL 1239289, at *5 (citations and quotation marks omitted) (emphasis added). Thus, the remand order was reversed, and the case remains in federal court.
Governmental involvement in the nation’s health care system is ubiquitous. Thus, we invite our clients and other readers to look for other examples where defendants sued in state court supply either products or services (see our first use of emphasis above) on the same terms and under the same overall regulatory scheme to both federal and non-federal purchasers. Plaintiffs cannot attack defendants’ (and not just PBMs’) conduct with respect to non-federal purchasers without also implicating federal procurement as well – and disclaimers “do not and [can]not” separate the two for federal jurisdictional purposes.