Reply Brief — Watson v. Philip Morris Companies, Inc.

No. OF | MAY ? ~ 20

IN THE

Supreme Court of the United States

LISA WATSON AND LORETTA LAWSON, INDIVIDUALLY

AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,

Petitioners,

PHILIP MORRIS COMPANIES, INC., A CORPORATION;

AND PHILIP MORRIS, INCORPORATED, A CORPORATION,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit

REPLY BRIEF FOR PETITIONERS

STEVEN EUGENE CAULEY DAVID C. FREDERICK

MARCUS N. BOZEMAN Counsel of Record

CAULEY, BOWMAN, CARNEY KELLY P. DUNBAR

& WILLIAMS, PLLC KELLOGG, HUBER, HANSEN,

11311 Arcade Drive TODD, EVANS & FIGEL,

Suite 200 P.L.L.C.

Little Rock, Arkansas 72212 1615 M Street, N.W.

(501) 312-8500 Suite 400

Washington, D.C. 20036

(202) 326-7900

Counsel for Petitioners

May 2, 2006

SS

TABLE OF CONTENTS

Page

Ge ecinsctsnsictcticesenihicicisnsitticncaatennadeseaindais il

ARGUMENT:

THE EIGHTH CIRCUITS ERRONEOUS DECI.

SION FURTHER DIVIDES THE FEDERAL

I accent that heh cial i al arian ie l

A. Federal Courts Are Divided Over § 1442(a)(1)....... 1

B. Watson Conflicts With This Court’s Precedent....... 5

C. This Case Is An Excellent Vehicle For Resolv-

ing The Issues Raised In The Petition.................... 8

D. Watson Raises’ Exceptionally__Important

aa a 9

I i 10

ll

TABLE OF AUTHORITIES

\ Page

CASES

Arizona v. Manypenny, 451 U.S. 232 (1981).............ccceeeeeee 8

Bakalis v. Crossland Sav. Bank, 781 F. Supp. 140

Se TT Uti: TUUIIII \ininciindictshainisieiithdeendnsiapbiehamiiensilibiiniaiibipetdaiiisinadéi 4

Brown & Williamson Tobacco Corp. v. Wigand,

913 F. Supp. 530 (W.D. Ky. 1996) ..................cccccceseeceeeed

California v. H&H Ship Serv. Co., No. 94-10182,

1995 WL 619293 (9th Cir. Oct. 17, 1995)...................... 4

Camacho v. Autoridad de Telefonos de Puerto Rico,

Se ee ee I TUITE iccnrssinectsiocsciaiestcheioccintsnieaniicintescinsts 2

Caterpillar Inc. v. Williams, 482 U.S. 386 (1987) .............. 7

Chick Kam Choo v. Exxon Corp., 486 U.S. 140 (1988)....... 7

City of Greenwood v. Peacock, 384 U.S. 808 (1966)....1, 5, 6

Colorado v. Symes, 286 U.S. 510 (1932).............0cccccceeeeeeeees 8

County Collector of County of Winnebago, In re,

ee EI ME icitincesianssiien:ecisicicninesbicninaaresiitieniiinsii 6

Davis v. South Carolina, 107 U.S. 597 (1883) ........0..0...c 6

Exxon Mobil Corp. v. Allapattah Servs., Inc., 125 S.

EE RERUNS Eonar ees neo Oe Pe RT 10

Freiberg v. Swinerton & Walberg Prop. Servs., Inc.,

245 F. Supp. 2d 1144 (D. Colo. 2002) ..................cceeeeeeee 4

Greene v. Citigroup Inc., No. 99-1030, 2000 WL

647190 (10th Cir. May 19, 2000) ..................cccccceseseesees 4

International Primate Protection League v. Admin-

istrators of Tulane Educ. Fund, 500 U.S. 72

{| een alice ita i a a 7,8

Jefferson County v. Acker, 527 U.S. 423 (1999) ......00..00000... 8

Kaplansky v. Associated YM-YWHA's of Greater New

York, Inc., No. 88 CV 1292, 1989 WL 29938

RS A Ree ee reer 4

Kelly v. Martin & Bayley, Inc., No. 05-CV-0409-

DRH, 2006 WL 44183 (S.D. [ll Jan. 9, 2006),

appeal pending, No. 06-1756 (7th Cir.) ....................6. 10

Lalonde v. Delta Field Erection, No. Civ. A. 96-3244-

B-M3, 1998 WL 34301466 (M.D. La. Aug. 6,

Lovell Mfg. v. Export-Import Bank of the United

States, 843 F.2d 725 (3d Cir. 1988) ...........cccc ee eeeeeeeeeee es 3

Magnin v. Teledyne Continental Motors, 91 F.3d

In i os ealadnaebabinel 2.3

McMahon v. Presidential Airways, Inc., 410 F. Supp.

I Rr NN iia titra ela linleeiedlallialied 5

Mesa v. California, 489 U.S. 121 (1989) .................... eee 7,8

Northern Colorade Water Conservancy Dist. v. Board

of County Comms, 482 F. Supp. 1115 (D. Colo.

STUIIT sinitisinsiiniatnannsiictend siadndnnnitisntsnaniibeneicciidinaiieibunmbiomeniineds 4

Robinsor v. Cheetah Transp., No. Civ. A. 06-0005,

2006 WL 468820 (W.D. La. Feb. 27, 2006) ................. 10

Venezia v. Robinson, 16 F.3d 209 (7th Cir. 1994)........... 2.8

Willingham v. Morgan, 395 U.S. 402 (1969) ...........:ceee 8

Winters v. Diamond Shamrock Chem. Co., 149 F.3d

I ee )

lV

STATUTES

Act of Feb. 4, 1815, ch. 31, 3 Stat. 195 (Customs Act) ....... 6

Civil Rights Act of 1866, ch. 31, 14 Stat. 27 ................... 5-6

Class Action Fairness Act of 2005, Pub. L. No. 109-2,

IRs Qinsisicichendecienibimanienmvnemgiicimieunencinnginniineinteneieni 9

a, SI Gee eertasdeenutniaeiinectendinnibntaicnennsencsspasdtitiamenestes 10

a ee ee iiccsiniscaicnsiispenieiinsesinuniicenenciinntabinnesinestitiniiiiianes 7

28 U.S.C. § 1442(a)(1) .........ececeecseeeees 1, 3, 4, 5, 6, 7, 8,9, 10 -

ee: Se BI ncasdrniniicemenntnncadiuntacintenitinpiniineimentiiia 5, 6

ee ee a A ctirciccntninscinantininintendntncciniainantnohigisisinsiatbinaiiia 9

LEGISLATIVE HISTORY

S. Rep. No. 104-366 (1996)...............0004. Sininhepeaianbaniinieanideiion 7

The Eighth Circuit’s decision in this case is the most far-

reaching expansion of the federal officer removal statute

ever decided by a federal court. The court below held that

Philip Morris, sued here under state law in state court for

purely commercial acts arising from its marketing of light

cigarettes, could remove to federal court because it was

“acting under” a federal officer. 28 U.S.C. § 1442(a)(1).

The absurdity of that holding is demonstrated, in part, by

the fact that the federal government is currently suing

Philip Morris for the very same acts that the company

claims entitle it to removal as though it is an officer of

the federal government. The Eighth Circuit’s decision

directly conflicts with this Court’s construction of previous

iterations of the federal officer removal statute in City

of Greenwood v. Peacock, 384 U.S. 808 (1966), a case not

cited by the Eighth Circuit. Peacock holds that, to the

extent § 1442(a)(1) protects private actors, such actors

(unlike Philip Morris here) must be assisting federal offi-

cers in enforcing federal law. This Court’s review is ur-

gently needed to correct the Eighth Circuit’s errant ap-

proach, to bring clarity to an issue that divides and con-

fuses federal courts, and to preserve a proper jurisdictional

balance between the federal and state judicial systems.

THE EIGHTH CIRCUIT'S ERRONEOUS DECISION

FURTHER DIVIDES THE FEDERAL COURTS

A. Federal Courts Are Divided Over § 1442(a)(1)

Circuits have adopted markedly different approaches

to applying the federal officer removal statute in cases

involving private actors. Philip Morris’s contrary claim

(Opp. 11) improperly focuses on the fact that those cases

upheld removal, while ignoring that the legal tests an-

nounced in those cases would not support Philip Morris's

bid to invoke § 1442(a)(1). The outcome here unques-

tionably would have been different in three other circuits.

Philip Morris does not challenge that the First, Sev-

enth, and Eleventh Circuits have articulated a test with

dispositive factors — such as the official character of acts

by private parties — that are irrelevant under approaches

2

taken by the Fifth and Eighth Circuits. And the Ninth

and Tenth Circuits have framed tests that exacerbate the

confusion among the circuits, because those circuits allow

private actors to remove absent any claim that the defen-

dants were engaged in official conduct or that the gov-

ernment exercised comprehensive or detailed control.

In Camacho v. Autoridad de Telefonos de Puerto Rico,

868 F.2d 482 (1st Cir. 1989), for instance, the First Circuit

held that, “[iJn . . . circumstances” when a private party

acts “strictly and solely at federal behest” in carrying

out “official government business,” “the reach of section

1442(a)(1) extends to private persons .. . who act under

the direction of federal officers.” /d. at 486. Although the

court upheld the removal of a telephone company assist-

ing federal officers in carrying out official surveillance,

the test it applied plainly diverges from the Eighth Cir-

cuit’s test, which deemed irrelevant whether Philip Morris

was carrying out official governmental business.

Likewise, in Venezia v. Robinson, 16 F.3d 209 (7th Cir.

1994), the Seventh Circuit held that the defendant — a

state officer — was entitled to removal based on the claim

that he acted “at all pertinent times .. . under the direc-

tion of agents of the Federal Bureau of Investigation as

part of a criminal investigation, and that during the

two-hour meeting with Venezia he had been wearing a

tape recorder at the federal agents’ request.” /d. at 211:

see also id. (defendant was “participating in a federal

investigation and acted under the instructions of federal

agents’). Crucially, the Seventh Circuit emphasized the

defendant's actions were “in the course of a criminal in-

vestigation,” id. at 212, thereby underscoring the official

character of those acts. Contrary to the Fifth and Eighth

Circuits, the Seventh Circuit does not analyze the com-

prehensiveness or detail of federal control as dispositive

factors for removal.

So too in Magnin v. Teledyne Continental Motors, 91

F.3d 1424 (11th Cir. 1996). There, the defendant alleged

that he “was acting on behalf of the [Federal Aviation Ad-

3

ministration (“FAA”)], under the authority granted to him

by the FAA, and within the limits prescribed by the FAA.”

Id. at 1427. Importantly, in deciding that removal was

proper, the court did not make the comprehensiveness or

detail of FAA oversight dispositive, but rather found it

crucial that the defendant was “an authorized agent of the

FAA” to whom the FAA had “delegate[d]” some of the

“powers and duties” of the government. 7d. at 1428.'

By focusing upon the official character of the defen-

dant’s conduct, those cases construe § 1442(a)(1) in a

manner that starkly conflicts with the Eighth Circuit's

analysis of “federal control.” Although Philip Morris in-

sists that removal was not denied in any of those cases

and that the “official function” approach is not exclusive of

the Eighth Circuit’s “federal control” test (Opp. 11-12), it

ignores that several district courts have denied removal

on the ground that the defendant was not engaging in of-

ficial governmental conduct. Those decisions underscore

the inconsistent outcomes at the district court level —

where removal and remand are fought out largely without

appellate review (see Pet. 9 n.1) — from applying the dif-

ferent circuits’ various tests for “acting under.”

In Brown & Williamson Tobacco Corp. v. Wigand, 913

F. Supp. 530 (W.D. Ky. 1996), for example, the court held

that the “[clase law demonstrates that the purpose of

{§ 1442(a)(1)] is to protect officials who are enforcing fed-

eral laws.” /d. at 533. The court found that standard was

not met when a party is subpoenaed to testify before a

grand jury because “he has not been directed to perform

official functions as an officer or agent of the government.”

Id. That case thus illustrates how an official function

framework — like that taken by the First, Seventh, and

Eleventh Circuits — is fundamentally divergent from a

' Lovell Manufacturing v. Export-Import Bank of the United States,

843 F.2d 725. 734 n.13 (3d Cir. 1988), questions whether “a mere

agency-principal re ationship between |a federal agency] and |a pri-

vate corporation} would be sufficient to support jurisdiction” under

§ 1442(a)(1).

4

comprehensive and detailed control test, under which a

subpoenaed party might very well have a claim to re-

moval. Other district courts also make that point clear.”

Given that Philip Morris makes no effort to account for

those decisions, which have read § 1442(a)(1) in light of its

historical purpose of protecting those enforcing federal

law, its assertions that there is no such thing as an official

function test (Opp. 13) and that federal courts have

treated private actors invoking § 1442(a)(1) uniformly

(Opp. 14) have no merit.

The Ninth and Tenth Circuits have added to the confu-

sion among the courts by making broad, unrefined judg-

ments about whether the defendant was acting under fed-

eral control. See California v. H&H Ship Serv. Co., No.

94-10182, 1995 WL 619293 (9th Cir. Oct. 17, 1995)

(judgment noted at 68 F.3d 481); Greene v. Citigroup Inc..,

No. 99-1030, 2000 WL 647190 (10th Cir. May 19, 2000)

(judgment noted at 215 F.3d 1336). In those circuits, con-

trary to both the official function test and the comprehen-

sive and detailed control test, nearly all private regulated

parties would presumptively be entitled to removal.

Federal district court decisions reflect the divergent

legal tests and resulting confusion on two fronts: first,

whether a private actor must have been engaged in offi-

cial conduct to avail itself of § 1442(a)(1); and, second,

* See Freiberg v. Swinerton & Walberg Prop. Servs., Inc.. 245 F.

Supp. 2d 1144, 1150 (D. Colo. 2002) (“private actors seeking to benefit

from {§ 1442(a)(1)] bear a special burden of establishing the official

nature of their activities”): Bakalis v. Crossland Sav. Bank, 781 F.

Supp. 140, 145 (E.D.N_Y. 1991) (removal is permitted “only when the

corporation ts so intimately involved with government functions as to

occupy essentially the position of an employee of the government”);

Kuaplansky v. Associated YM-YWHA's of Greater New York, Inc., No. 88

CV 1292. 1989 WL, 29938. at *3 (E.D.N-Y. Mar. 27. 1989) (parties com-

plying with subpoena were not “acting under” federal officer because

defendants were not “asked to stand in the shvues of [federal] officers or

agents and perform ‘official’ functions”), see also Northern Colorado

Water Conservancy Dist. v. Board of County Comm'rs, 182 F. Supp.

1115. 1118 ¢(D. Colo. 1980).

o

what degree of federal control warrants removal.’ Philip

Morris entirely overlooks the first type of conflict, as set

forth above, and it takes wholly inconsistent positions on

the second. Compare Opp. 16 (asserting that “district

courts have had no problem in distinguishing between

cases that satisfy [a detailed control test] and those that

do not”) with id. (noting that multiple district courts, on

the same facts as Watson, “reached a different conclusion

as to whether the [Federal Trade Commission] had exer-

cised sufficient control for purposes of § 1442(a)(1)”).'

B. Watson Conflicts With This Court’s Precedent

The Eighth Circuit's decision is strikingly incorrect, as

it conflicts with the text and purposes of § 1442(a)(1), as

interpreted by this Court. The federal officer removal

statute does not extend a privilege of removal to a private

regulated actor complying with federal law. It surely does

not do so where the “regulation” of the industry is as

meager as it is here. See Public Citizen Amicus Br. 5-12.

1. This Court’s decision in Peacock shows why

§ 1442(a)(1) protects private actors only insofar as they

are affirmatively assisting federal officers in enforcing

federal law. See Pet. 19-20. Philip Morris's efforts (at 26)

to distinguish the decision betray a basic misunderstand-

ing of the case. In Peacock, this Court construed § 1443(2)

in light of the progenitor of that statute in the Civil

’ See McMahon ». Presidential Airways, Inc.. 410 F. Supp. 2d 1189,

1196 (M.D. Fla. 2006) (“there are varying formulations of the test for

removal under the federal officer provision”): Lalonde v. Delta Field

Erection, No. Civ. A. 96-3244-B-M3, 1998 WL 34301466, at *2_(M.D.

La. Aug. 6, 1998) (“Neither the Supreme Court nor the Fifth Circuit

have established what 1s required to show that a government contrac-

tor is ‘acting under an officer of the United States or of an agency

thereof. Cases from other federal district courts .. . vary in their ap-

proach to what is required under this element.”).

' That district courts do not always follow the decisions of the ap-

propriate courts of appeals (see Opp. 15. 16 n.7) only underscores the

confusion surrounding § 1442(a)1) and the need for this Court's re-

view. The outcome of a removal decision thus turns not only upon the

circuit, but also the district court, that hears the case. See Pet. 17.

6

Rights Act of 1866, which spoke of “any officer, civil or

military, or other person.” 384 U.S. at 815 (internal quo-

tation marks omitted). The Court held that the “other

person” clause tracked the Customs Act of 1815, which, as

we have pointed out, was a precursor to § 1442(a)(1). See

Pet. 4. The Court then read the Customs Act as allowing

removal by private parties — i.e., other persons — but only

for acts “aiding or assisting” customs officers in perform-

ing “official actions.” 384 U.S. at 820 n.17. Furthermore,

the Court found that the “acting under” clause of the fed-

eral revenue officer statute — adopted in 1866 — “obviously

drew on the comparable characterization of the ‘other per-

son’ in the Customs Act of 1815.” /d. at 823 n.20.

Peacock thus makes clear that the “other person” lan-

guage of the precursor to § 1443(2) and “other person” and

“acting under” provisions of statutory antecedents to

§ 1442(a)(1) should be construed in pari materia.’ That

is crucial here because the Court also concluded that

§ 1443(2) “confers a privilege of removal only upon federal

officers or agents and those authorized to act with or for

them in affirmatively executing duties under any federal

law providing for equal civil rights.” /d. at 824. And,

the Court explained, that “limitation .. . to official en-

forcement activity . . . draws support from analogous

provisions in the removal statutes available to federal

revenue officers.” Id. at 820 n.17.° The Eighth Circuit's

» Philip Morris's point (at 26) that § 1442(a)(1) is broader than

§ 1443(2) is true, but irrelevant. The reason § 1442(a)(1) is broader

than § 1443(2) is that by affording protection to all federal officers —

irrespective of whether they are enforcing civil rights statutes —

§ 1442(a)1) may functionally encompass all of § 1443(2). The key

point here is that this Court held that § 1443(2) contains an implied

“acting under” limitation analogous to the federal officer removal stat-

ute. See In re County Collector of County of Winnebago, 96 F.3d 890,

897 (7th Cir. 1996) (noting Peacock held § 1443(2) was “limited to en-

forcement activity by federal officers and those acting under them”)

(internal quotation marks omitted, emphasis added).

" See also Davis v. South Carolina, 107 U.S. 597, 600 (1883) (“non-

commissioned officer in the army. detailed as a guard m aid of” a

marshal tasked with enforcing revenue laws, was entitled to removal

7

interpretation of § 1442(a)(1), which elides the difference

between a party enforcing federal law and a party comply-

ing with federal law, is thus inconsistent with this Court's

precedent.

2. Philip Morris's reliance (at 25) on the legislative his-

tory of the 1996 amendment to § 1442(a), which brought

federal agencies within the ambit of the statute, does not

help its cause.’ Congress's desire that federal agencies -

no less than federal officers — should be able to invoke

§ 1442(a)(1) offers no support for the view that Philip

Morris, a private regulated actor, may do so as well. In-

deed, the quoted legislative history is entirely consistent

with the view that federal agencies — whose raison d @tre

is enforcing federal law — should, like federal officers, be

able to remove. See, e¢.g., S. Rep. No. 104-366, at 30-31

(1996) (“A Federal forum in such cases is important since

state court actions against Federal agencies and officers

often involve complex Federal issues and Federal-State

conflicts.”) (emphasis added). The cited legislative history

does not support a right to removal for private regulated

parties.”

Philip Morris thus can offer no satisfactory defense of

the Eighth Circuit's decision on the merits. As a private

because statute “shield[ed] all who lawfully assist [a federal officer] in

the performance of nis official duty”).

‘ Philip Morris never disputes that both /nternational Primate Pro-

tection League v. Administrators of Tulane Educational Fund, 500 U.S.

72 (1991). and Mesa v. California, 489 U.S. 121 (1989). show that the

Eighth Circuit erred in reading this Court's precedent as requiring a

mechanical presumption of a broad interpretation of § 1442(a)(1) any-

time the statute is invoked. See Pet. 20-21.

" Philip Morris's effort (at 27) to deflect the Eighth Circuit's confla-

tion of preemption and removal is off the mark. This Court has consis-

tently held that preemption defenses do not entitle private actors to

removal, see Caterpillar Inc. v. Williams, 482 U.S. 386, 393 (1987), and

that state courts are entirely competent to resolve such defenses. see

Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 149-50 (1988). See Pet.

24-25. Nothing in the legislative history of the 1996 amendments

evinces an intent to disrupt those venerable jurisdictional principles.

8

regulated actor, Philip Morris is not enforcing federal law,

see Willingham v. Morgan, 395 U.S. 402, 406 (1969); not

at risk from state animus against federal officials, see

Arizona v. Manypenny, 451 U.S. 232, 241-42 (1981); and

not in heed of a federal forum to hear any official immu-

nity defense, see International Primate Protection League,

500 U.S. at 86-87. None of the historical rationales for

the statute therefore is at issue. See Pet. 21-23.

In all events, the United States has a significant stake

in the proper construction of § 1442(a)(1). In all of the re-

cent cases before this Court involving the federal officer

removal statute, the United States has participated as a

party representing a federal officer or as an amicus curiae

stating its views to the Court.” Accordingly, if any doubt

exists about the Eighth Circuit’s erroneous position that

Philip Morris was acting under a federal officer, then this

Court should seek the views of the Solicitor General.

C. This Case Is An Excellent Vehicle For Resolv-

ing The Issues Raised In The Petition

This case affords an ideal opportunity for this Court to

give a proper interpretation of the scope of § 1442(a)(1).

The issue is purely one of law. See Pet. 25-26. Philip

Morris's only contrary claim (at 17) is that the Seventh

Circuit’s decision to review a similar issue weighs against

the need for review here. That is not so. If the Seventh

Circuit reads Venezia as circuit precedent for an official

function approach — and denies removal upon that basis

then the divide in the circuits will be no sharper than it is

" See Jefferson County v. Acker, 527 U.S. 423, 432 (1999) (United

States as amicus curiae supporting federal district court judges seek-

ing removal); International Primate Protection League, 500 U.S. at 75

(Solicitor General represented the removing federal agency); Mesa, 189

U.S. at 124 (Solicitor General represented federal Postal Service em-

ployees); Willingham, 395 U.S. at 404 (Solicitor General represented

removing defendants, warden and chief medical officer of federal

prison); Colorado v. Symes, 286 U.S. 510, 515 (1932) (Solicitor Generat

submitted a brief in opposition to remand of prosecution against fed-

eral prohibition officer).

9

today, and Philip Morris will likely not petition for certio-

rari (fearful of losing the benefits afforded by the Eighth

Circuit's decision). This Court’s opportunity te correct the

Eighth Circuit’s extraordinary holding, and to bring clar-

ity to this issue, will thus be lost. But, if the Seventh Cir-

cuit, like the Eighth Circuit, upholds removal, the state of

the law will only be more confused. Correcting the Eighth

Circuit’s erroneous holding now is therefore appropriate.

Issues of § 1442(a)(1) removal do not often arise in the

courts of appeals because of the prohibition on appellate

review of remand orders in 28 U.S.C. § 1447(d) (see Pet. 9

n.1). This case thus presents an especially attractive ve-

hicle, with an undisputed record, to resolve this important

jurisdictional question. Countless federal courts will con-

tinue to misapply the statute — allowing private regulated

parties to remove state-law actions to federal court — in

the interim.

D. Watson Raises Exceptionally Important Issues

Section 1442(a)(1) implicates exceptionally important

jurisdictional interests. See Pet. 26-27.'° Philip Morris

does not disagree; instead, it erroneously believes that

this case does not warrant certiorari because the Eighth

Circuit's decision will be limited to the tobacco context

and because the Class Action Fairness Act of 2005

(“CAFA”), Pub. L. No. 109-2,.119 Stat. 4, affords an inde-

pendent right to remove certain types of class actions like

Watson.

First, the Eighth Circuit’s reasoning cannot reasonably

he limited to tobacco. See Pet. 27-30. The concurring

judge’s attempt to limit the case to light cigarettes —

Philip Morris wrongly suggests (at 18) that this Court need not

worry about a wave of removals because Winters v. Diamond Shamrock

Chemical Co., 149 F.3d 387 (5th Cir. 1998) — upon which the Eighth

Circuit based its decision — did not produce such effects. Although it

adopted a comprehensive control test, Winters did so in the government

contractor context. The court below has now extended Winters in a way

that invites private regulated actors to claim a right to removal that

they did not have before. See Pet. 29-50 & n.17.

10

which did not garner the approval of the majority — can-

not cloak the breadth of the Eighth Circuit’s holding and

test. See Public Citizen Amicus Br. 5-12.

Philip Morris's reliance (at 21) on CAFA to avert this

Court’s review is no more persuasive. The universe of

cases in which § 1442(a)(1) may be invoked — under the

Eighth Circuit's test — is far more expansive than the

scope of cases affected by CAFA. Indeed, because the

Eighth Circuit's test focuses on the actions of the defen-

dant, not the plaintiffs, it is irrelevant in resolving this

issue that the case is brought as a class action. Under the

Eighth Circuit's logic, the federal officer removal statute

may be invoked in any state-law action brought against a

regulated company, see, e.g., Kelly v. Martin & Bayley,

Inc., No. 05-CV-0409-DRH, 2006 WL 44183, at *3-*4 (S.D.

Il]. Jan. 9, 2006), to which CAFA will have no application

—a result far afield from Congress's purpose of ensuring

that federal interests will be litigated in federal courts.

Moreover, CAFA is subject to several important limita-

tions, including exceptions for class actions involving de-

fendants and class members who are mostly citizens of

the forum State, actions with fewer than 100 class mem-

bers, and shareholder actions or derivative suits based on

state law. See CAFA § 4, 119 Stat. 9-10.'' Accordingly,

even with CAFA’s enactment, the Eighth Circuit's deci-

sion will continue to afford private regulated companies of

all tvpes the ability to undermine the interest of States in

having their judicial systems available to vindicate the

interests of their citizens.

CONCLUSION

For the foregoing reasons and those stated in the peti-

tion, the petition for a writ of certiorari should be granted.

'' See Exxon Mobil Corp. v. Allapattah Servs., Inc., 125 S. Ct. 2611,

2640 n.12 (2005) (Ginsburg, J.. dissenting) (noting that CAFA is

“[sjubject to several exceptions and qualifications”); Robinson v. Chee-

tah Transp... No. Civ. A. 06-0005, 2006 WL 468820, at *3 (W.D. La.

Feb. 27, 2006) (discussing “the ‘Home State’ exception and the ‘Local

Controversy exception” to CAFA). .

STEVEN EUGENE CAULEY

MARCUS N. BOZEMAN

CAULEY, BOWMAN, CARNEY

& WILLIAMS, PLLC

11311 Arcade Drive

Suite 200

Little Rock, Arkansas 72212

(501) 312-8500

Respectfully submitted,

DAVID C. FREDERICK

Counsel of Record

KELLY P. DUNBAR

KELLOGG, HUBER, HANSEN,

TODD, EVANS & FIGEL,

P.L.L.C.

1615 M Street, N.W.

Suite 400

Washington, D.C. 20036

(202) 326-7900

Counsel for Petitioners

May 2, 2006