Amicus Curiae Brief — Watson v. Philip Morris Companies, Inc.

2) [Supreme Court, US.

: FILED

Na MAY 1- 2006

No. 05-1284 OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

LISA WATSON, ET AL.,

Petitioners,

Vv.

PHILIP MORRIS COMPANIES, INC., ET AL.,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Eighth Circuit

BRIEF OF PUBLIC CITIZEN, INC., AS AMICUS

CURIAE IN SUPPORT OF PETITIONERS

ScoTT L. NELSON

Counsel of Record

BRIAN WOLFMAN

PUBLIC CITIZEN LITIGATION GROUP

1600 20th Street, N.W.

Washington, D.C. 20009

(202) 588-1000

Attorneys for Amicus Curiae

May 2006

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QUESTION PRESENTED

Whether a private actor doing no more than complying

with federal regulation is a “person acting under a federal

officer” for the purpose of 28 U.S.C. § 1442(a)(1), entitling

the actor to remove to federal court a civil action brought in

state court under state law.

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TABLE OF CONTENTS

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REASONS FOR GRANTING THE WRIT...0..........:cceseeeeees 5

I. The Eighth Circuit’s Holding That Federal Regula-

tion Is Enough for Removal Under Section

1442(a)(1) Cannot Be Squared with the Statutory

Language, this Court’s Decisions, or Decisions of

UID sessitasincsnisosmnissiscnnsiecesisavinnniacteshaiaaibesbiinienidelcnsiee 5

Il. The FTC’s “Regulation” of Cigarettes Was Not

Uniquely or Even Unusually Extensive. ..................:0:0000+ 7

A. The FTC’s Weak “Regulation” of the Cigarette

Industry Did Not Compel Philip Morris to Take

the Actions for Which It Has Been Sued. .................+. 7

B. Other Industries Face Much More Extensive,

Specific, and Formal Regulation than Do Ciga-

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C. Whether Broadly or Narrowly Applied, the

Eighth Circuit’s Ruling Will Have Mischievous

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TABLE OF AUTHORITIES

Page(s)

Cases:

Arizona v. Manypenny, 451 U.S. 232 (1981)......-.:.--scee00+ 3,5

Bates v. Dow Agrosciences LLC, 125 S. Ct. 1788

STITT iasiihendaiescait ital cBhaehbaibinibeinbdeaeciibigenanniadmacnihie 2

Blum v. Yaretsky, 457 U.S. 991 (1982)..........cccccssesseeesereeeeees 6

Brown y. Philip Morris Inc., 250 F.3d 789 (3d Cir.

—___. SS ee Ee 5-6

Craft v. Philip Morris Companies, Inc., 2006 WL

744415 (E.D. Mo. Mar. 17, 2006). ........:.cseesseeseesseeeeeeeees 4

FDA v. Brown & Williamson, 529 U.S. 120 (2000). .............. 2

FTC v. Brown & Williamson Tobacco-Corp.,

778 F.2d 35 (D.C. Cir. 1985)......... spnidinnininaeiinnsinnenapaltid 8

Jackson v. Metropolitan Edison Co., 419 U.S. 345

ei shindeistiiaiiaiatlnadiaiciniuianesiienimasicibdicapiiteipdaisninesinsanpseinaieti 6

King v. Provident Bank, _ F. Supp. 2d __, 2006

WL 902271 (M.D. Ala. April 6, 2006) ............:cceeeeeeees 15

Lorillard Tobacco Co. v. Reilly, 533 U.S. 525

STE scssistiasaadceciuiaiiiislaibeisdiansansiceideinidenegelitindaenenageinioneaniantts 2

Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) ...........:0000. 2,11

Mesa v. California, 489 U.S. 121 (1989).......:.ccssceesseeseseseseees 3

Parks v. Guidant Corp., 402 F. Supp. 2d 964 (N.D.

FETE cenisshicstnienntnnbsisacinidinininitiapenmeninibenipee souihed 14,15

Price v. Philip Morris Inc., _ N.E.2d__, 2005 WL

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Tennessee v. Davis, 100 U.S. 257 (1880) .............ceecceeeees 3,4

Tremblay v. Philip Morris, Inc., 231 F. Supp. 2d

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United States v. Philip Morris, 263 F. Supp. 2d 72

GREG, FED cccncisnmamninimaiiiiinaiaaiamile 9

Virden v. Altria Group, Inc., 304 F. Supp. 2d 832

GPR Ws Wiis Gee nrscievntsasesectsisescenebianinnipadteinmodaladimminmill 6

Willingham v. Morgan, 395 U.S. 402 (1969) ...........-ccce0e 3,5

Yamaha Motor Corp. v. Calhoun, 516 U.S. 199

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Statutes and Regulations:

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Other:

FTC, Cigarette Testing: Request for Public Com-

ment, 62 Fed. Reg. 48158 (Sept. 12, 1997)... 8-9

www.epa.gov/fueleconomy/index.htm (last visited

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www.fueleconomy.gov/ (last visited April 28, 2006)........... 11

www. SaferCar.gov (last visited April 28, 2006) .............0++ 10

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INTEREST OF AMICUS CURIAE

Public Citizen, Inc., submits this brief as amicus curiae in

support of the petition for certiorari in this case because the

Eighth Circuit’s decision directly implicates its interests in

preserving consumer remedies under state law and defending

the role of the state courts in providing such remedies.’

Public Citizen, Inc., is a consumer advocacy organization

founded in 1971. On behalf of its approximately 100,000

members nationwide, Public Citizen appears before Con-

gress, administrative agencies, and the courts on a wide range

of issues and works toward the enactment and effective en-

forcement of laws protecting consumers, workers, and mem-

bers of the public generally. Public Citizen is particularly

concerned with improving public health laws and regulations

and with ensuring public access to the court system for the

redress of injuries and illnesses caused by unsafe and defec-

tive products. As a result of these concerns, Public Citizen

has an interest in both the substantive and procedural aspects

of litigation involving cigarettes and other tobacco products,

which have caused grievous illness and injury to so many

people. More generally, Public Citizen seeks to counter the

misuse of procedural devices such as removal as well as the

substantive defense of implied preemption, both of which

increasingly are invoked by defendants in a range of litiga-

tion involving public health and safety to burden plaintiffs

and escape liability under state law.

For these reasons, Public Citizen sought and was granted

leave to file an amicus brief in this case in support of the pe-

tition for rehearing in the Eighth Circuit. Public Citizen has

also appeared as amicus curiae in many cases involving to-

' Letters of consent to the filing of this brief from all parties have

been filed with the Clerk. This brief was not authored in whole or in part

by counsel for a party. No person or entity other than amicus curiae or its

counsel made a monetary contribution to preparation or submission of

this brief.

2

bacco, including Lorillard Tobacco Co. v. Reilly, 533 U.S.

525 (2001), FDA v. Brown & Williamson, 529 U.S. 120

(2000), and Price v. Philip Morris Inc., __ N.E.2d __, 2005

WL 3434368 (Ill. Dec. 15, 2005). In addition, Public Citizen

and its attorneys have participated in numerous appellate

cases in which defendants raised preemption defenses, in-

cluding Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996), Ya-

maha Motor Corp. v. Calhoun, 516 U.S. 199 (1996), and

Bates v. Dow Agrosciences LLC, 125 S. Ct. 1788 (2005).

The panel’s opinion implicates Public Citizen’s concerns

in a number of respects. Public Citizen believes that the

Eighth Circuit’s decision places an unwarranted procedural

obstacle in the way of plaintiffs asserting state-law tort

claims in state courts by cloaking cigarette companies in the

guise of federal government actors and providing them the

same right to remove a case to federal court as a federal offi-

cer sued for actions under color of his office. Moreover, by

treating a company that is merely subject to some federal

regulation as if it were a federal officer or agency itself, the

Eighth Circuit’s opinion is likely to give rise to many more

removal attempts as other companies—many subject to much

greater federal regulation than the tobacco industry—seek to

take advantage of the court’s expansion of the federal officer

removal statute by asserting that they, too, were acting at the

direction of federal officers and are being sued for actions

under color of federal office.

Public Citizen believes that a brief reflecting its perspec-

tive may assist the Court in determining whether review of

the Eighth Circuit’s novel opinion is warranted. In particular,

Public Citizen believes it may be useful to the Court to re-

ceive detailed information about how the supposedly “un-

usual” and “unique” regulation of cigarettes by the Federal

Trade Commission compares to the much more extensive and

detailed regulation of other products by other federal agen-

cies. That information demonstrates that, far from justifying a

special status for cigarette companies as federal agents enti-

3

tled to remove actions against them to federal court, the na-

ture of the FTC’s interactions with cigarette companies pro-

vides no basis for singling them out for special protections

unavailable to other industries that are, in fact, more heavily

regulated.

INTRODUCTION

In May 1878, federal internal revenue agent James Davis

raided a moonshine still in the hills near Tracy City, Tennes-

see. Before he and his companion could destroy the still,

seven armed men attacked them. Returning fire, Davis killed

one of his assailants, wounded another, and captured a third,

but he was forced to retreat without destroying the still. Ac-

cording to a contemporary newspaper account, the raid

caused “intense excitement” in the neighborhood.’

A local grand jury indicted Davis for murder. With the

support of the Attorney General of the United States, Davis

invoked the predecessor to 28 U.S.C. § 1442(a)(1) and re-

moved the case to federal court on the ground that he had

acted in the discharge of his duties as a federal officer and

was immune from state prosecution. In Tennessee v. Davis,

100 U.S. 257 (1880), this Court affirmed the removal, hold-

ing that because the federal government “can act only

through its officers and agents,” the ability to remove state

court actions brought against federal officers and agents for

actions within the scope of their duties was essential to the

vindication of federal authority. Jd. at 263. The Court has re-

peatedly pointed to Davis as exemplifying the core purposes

of § 1442(a)(1)’s authorization for removal of cases by fed-

eral officers and persons acting under their direction who are

sued in state court for the performance of official acts. See,

e.g., Mesa v. California, 489 U.S. 121, 126-27 (1989); Ari-

zona v. Manypenny, 451 U.S. 232, 241 n.16 (1981); Willing-

ham v. Morgan, 395 U.S. 402, 406 (1969).

3 www.tngenweb.org/monroe/news3.txt.

4

This case is a far cry from Davis. Here, the Philip Morris

Company, a purely private enterprise, has been sued for

fraudulently misrepresenting the hazardous nature of its

products—so-called “‘light” cigarettes. There is no claim that,

in promoting and selling its cigarettes, Philip Morris was car-

rying out any official function of the United States. Rather,

the company’s claim to removal, which was accepted by the

Eighth Circuit, rests solely on the supposed “regulation” of

certain aspects of the cigarette industry’s activities by the

Federal Trade Commission, as a result of which Philip Mor-

ris claims to have been “acting under” a federal officer.’

The Eighth Circuit’s decision departs from all previous

federal appellate case law on federal officer removal by per-

mitting removal based solely on the extent of federal regula-

tion of private business activity that is not otherwise per-

formed for the benefit of the federal government. The justifi-

cation offered by the Eighth Circuit and parroted by Philip

Morris—that the FTC’s regulation of cigarette companies is

so “unusual” or, indeed, “unique” as to justify treating ciga-

rette makers as if they were federal agents—is patently

wrong. Many industries are subject to much more detailed

and extensive regulation than the cigarette industry. Thus, if

the Eighth Circuit’s reasoning were extended beyond ciga-

rette companies, its decision could result in a tremendous ex-

pansion of federal removal jurisdiction.

It may well be that, as Philip Morris predicts, see Br. in

Opp. 18-20, other courts will shrink from applying the Eighth

* Philip Morris seems to have discovered that it was “acting under” a

federal officer surprisingly late in the game, given its assertion that there

is a long and unique history of federal regulation of its activities: The first

reported decision in a case where a cigarette company claimed federal

officer removal did not come until 2002, see Tremblay v. Philip Morris, -

Inc., 231 F. Supp. 2d 411 (D.N.H. 2002), and even in the Eighth Circuit

some of Philip Morris’s attempted removals on this ground have recently

been held untimely. Craft v. Philip Morris Companies, Inc., 2006 WL

744415 (E.D. Mo. Mar. 17, 2006).

5

Circuit’s reasoning outside of the cigarette industry, so that

the decision below will benefit only Philip Morris and other

cigarette companies. But that will result in an equally signifi-

cant distortion of federal law: A special dispensation will be

granted to the very industry whose claim to such an indul-

gence is weakest. Either way, the decision below “has so far

departed from the accepted and usual court of judicial pro-

ceedings ... as to call for an exercise of this Court’s supervi-

sory power.” S. Ct. R. 10(a).

REASONS FOR GRANTING THE WRIT

I. The Eighth Circuit’s Holding That Federal Regula-

tion Is Enough for Removal Under Section

1442(a)(1) Cannot Be Squared with the Statutory

Language, this Court’s Decisions, or Decisions of

Other Circuits.

The federal officer removal statute, 28 U.S.C.

§ 1442(a)(1), provides for removal when “any officer (or any

person acting under that officer) of the United States or any

agency thereof” is sued in a state court “for any act under

color of such office.” On its face, the statute requires not only

that the actor who is sued be an officer or person acting un-

der him, but also that the action for which he is sued be an

official one—that is, an act under color of office. The under-

color-of-office requirement is a critical limitation of the stat-

ute, integral to its core purpose of providing for removal

“broad enough to cover all cases where federal officers can

raise a colorable defense arising out of their duty to enforce

federal law.” Willingham, 395 U.S. at 406-07 (emphasis

added); see also Arizona v. Manypenny, 451 U.S. at 241

(“[R]emoval under § 1442(a)(1) and its predecessor statutes

was meant to ensure a federal forum in any case where a fed-

eral official is entitled to raise a defense arising out of his

official duties.”) (emphasis added).

Whatever selling cigarettes may be, it is not action under

color of federal office. See Brown v. Philip Morris Inc., 250

6

F.3d 789, 801 (3d Cir. 2001) (accepting Philip Morris’ argu-

ment that federal regulation of its marketing practices did not

make its actions “under color of federal law” for purposes of

a Bivens action). The Eighth Circuit departed from the words

of the statute, the precedents of this Court, and the decisions

of other circuits by extending removal to a lawsuit based on

the defendant’s purely self-interested private conduct just

because it was subject to some federal regulation. This Court

has made clear that even “extensive” regulation of the activi-

ties of a business does not make its actions under color of

law; rather, a private person acts under color of law only

when its action “may be fairly treated as that of the [govern-

ment] itself.” Jackson v. Metropolitan Edison Co., 419 U.S.

345, 350 (1974); accord Blum v. Yaretsky, 457 U.S. 991

(1982). For the same reason, removal of suits based on ac-

tions taken by federal officers or their subordinates under

color of office is properly limited to cases where the remov-

ing defendant was “effectively an agent or employee of the

government” performing “official functions” on its behalf.

Virden v. Altria Group, Inc., 304 F. Supp. 2d 832, 846, 845

(N.D. W. Va. 2004).

In its attempt to defend the decision below, Philip Morris

cites not a single case where another federal court of appeals

has permitted removal by a defendant who was not perform-

ing some function on behalf of the federal government. Each

appellate case cited by Philip Morris involved a defendant

who acted as a de facto or de jure agent of the federal gov-

ernment or otherwise performed some federal function for or

on behalf of the government, whether it be implementing a

federal wiretap, participating in a federal undercover law en-

forcement operation, inspecting airplanes on behalf of the

federal government, supplying war material to the military,

or carrying out a federal environmental cleanup operation.

See Br. in Opp. 11-13 (citing cases). As petitioner explains

(Pet. 9-17), the cases from other circuits employ divergent

standards for determining when removal is appropriate, but

the key point is that Philip Morris’s conduct in marketing

“light” cigarettes would not qualify for removal under any of

the case authority from other circuits.

II. The FTC’s “Regulation” of Cigarettes Was Not

Uniquely or Even Unusually Extensive.

Recognizing that “mere participation in a regulated in-

dustry is insufficient” to support removal, Br. in Opp. 14,

Philip Morris attempts to defend the Eighth Circuit’s decision

on the ground that the regulation to which it was subject was

“unusual” and so “unique” as to differentiate Philip Morris

from other regulated businesses and justify a special rule of

removal for cigarette cases. Br. in Opp. 10. But the Eighth

Circuit’s characterization of the regulation of cigarette com-

panies as “unprecedented,” on which Philip Morris relies, Br.

in Opp. 18, is itself so baseless as to call for correction by

this Court. Left standing, the decision below will lead either

to a potentially vast expansion of federal officer removal, as

other more heavily regulated businesses seek the same bene-

fit afforded Philip Morris by the Eighth Circuit, or to a com-

pletely unprincipled special rule benefiting only the cigarette

industry.

A. The FTC’s Weak “Regulation” of the Cigarette

Industry Did Not Compel Philip Morris to Take

the Actions for Which It Has Been Sued.

Philip Morris, echoing the Eighth Circuit’s opinion, is

long on adjectives characterizing the supposedly extensive

regulation to which it was subjected by the FTC. See Br. in

Opp. 3-6. The undisputed, public-record facts, however, fall

far short of justifying those characterizations. Indeed, they

fail to do so as a matter of law. The critical points, which are

not subject to dispute, are:

e The FTC has never promulgated regulations requiring

cigarette makers to test the tar and nicotine levels of

cigarettes, let alone regulations defining how such tests

8

must be conducted, how the results must be disclosed,

or how test results may be used in cigarette advertising.

e The major cigarette makers’ adherence to the FTC

method of testing cigarettes was the result of a volun-

tary agreement they entered ito to stave off formal

regulation and/or enforcement actions under the FTC’s

general authority to sanction “unfair or deceptive acts

or practices in or affecting commerce” under § 5 of the

FTC Act, 15 U.S.C. § 45(a). See FTC, Cigarette Test-

ing: Request for Public Comment, 62 Fed. Reg. 48158

(Sept. 12, 1997).

e Absent agreement by the manufacturers to use the

FTC’s test method, the FTC could not, as a matter of

law, foreclose use of other methods unless it could

prove that advertising their results would be unfair or

deceptive under the FTC Act. As the D.C. Circuit held

in FTC v. Brown & Williamson Tobacco Corp., 778

F.2d 35, 44 (D.C. Cir. 1985), “[b]ecause the FTC has

not adopted its system of testing pursuant to a Trade

Regulation Rule under section 18 of the FTC Act, 15

U.S.C. § 57a (1982), one cannot say that the FTC sys-

tem constitutes the only acceptable one available for

measuring milligrams of tar per cigarette.”

e Although Philip Morris, following the Eighth Circuit’s

lead, insists that the FTC “formally defined’ ‘low tar’

cigarettes as those measuring 15 milligrams or less in

tar according to the FTC Method,” Br. in Opp. 5, nei-

ther Philip Morris nor the court below can cite any FTC

regulation or other “formal” action of the Commission

embodying such a definition. As the Commission itself

has stated, “Cigarette manufacturers use a number of

descriptive terms (such as ‘low tar,’ ‘light,’ ‘medium,’

‘extra light,’ ‘ultra light,’ ‘ultra low,’ and ‘ultima’) in

advertising and labeling information about their ciga-

rettes. ... There are no official definitions for these

terms but they appear to be used by the industry to re-

9

flect ranges of FTC tar ratings.” FTC, Cigarette Test-

ing: Request for Public Comment, 62 Fed. Reg. at

48163 (emphasis added).

The most that can be said is that the FTC at one point

followed an informal enforcement policy of not taking

action against cigarette companies that advertised ciga-

rettes as “light” or “low tar” based on test results using

the Cambridge method; but as Philip Morris itself ac-

knowledges, the Commission has more recently begun

an investigation, as yet unresolved, of whether such ad-

vertising is deceptive. Br. in Opp. 6.

The United States is currently suing Philip Morris and

other cigarette manufacturers for precisely the conduct

that Philip Morris insists in this case it undertook as an

agent of the federal government acting under color of

federal office. The district court in that case has rejected

the defendants’ argument that they were merely follow-

ing FTC mandates, noting that the advertisements in

which they suggested that “light” cigarettes were less

hazardous “were certainly not mandated by the FTC.”

United States v. Philip Morris, 263 F. Supp. 2d 72, 81

(D.D.C. 2003) (emphasis added).

Most importantly, whatever the FTC may or may not

have “directed” Philip Morris to do, Philip Morris does

not claim—because it cannot—that the FTC ever re-

quired it to sell “low tar” cigarettes, or compelled it to

call its cigarettes “lights,” or otherwise ordered it to use

advertising that would mislead consumers by suggest-

ing, on the basis of measured tar and nicotine levels,

that “light” cigarettes are somehow healthier than

“regular” cigarettes.

10

B. Other Industries Face Much More Extensive,

Specific, and Formal Regulation than Do Ciga-

rette Companies.

The “regulation” of cigarette testing and advertising by

the FTC is by no means “unique,” “extraordinary” or “un-

usual” in its intrusiveness. Indeed, federal regulatory actions

are typically much more formal and prescriptive than the

FTC’s actions regarding cigarettes. And although it may have

been “unprecedented” for the FTC to involve itself in product

testing to the degree it did with cigarettes (Br. in Opp. 18),

detailed federal product-testing mandates are common, and

are usually set forth in regulations with the force of law

rather than adopted informally and by agreement with regu-

lated companies, as in the case of the FTC’s cigarette testing

regime.

The National Highway Traffic Safety Administration

(NHTSA), for example, conducts its own program of crash

and rollover testing of automobiles, gives vehicles one- to

five-star ratings as a result, and tells car manufacturers how

to use those ratings in automobile advertising. See

www. SaferCar.gov. NHTSA’s testing activities, which are at

least as extensive as the FTC’s, are carried out not pursuant

to voluntary agreements or informally adopted policies, but

under a specific statutory mandate. 49 U.S.C. § 30168.

Moreover, unlike the FTC, NHTSA does more than

merely test vehicles and instruct automakers concerning the

use of those test results in advertising. It also formally prom-

ulgates specific design and performance standards for vehi-

cles, known as Federal Motor Vehicle Safety Standards

(FMVSSs). Those mandatory standards, codified at 49 C.F.R.

Part 571, fill approximately 700 pages of the Code of Federal

Regulations. FMVSSs typically specify not only what safety

features manufacturers are required to install in vehicles and

what standards of protection they must provide, but also ex-

actly how manufacturers must measure their performance.

For example, NHTSA’s standard governing seatbelts and air-

11

bags, 49 C.F.R. § 571.208, which by itself is 87 pages long,

prescribes exactly what crash tests manufacturers must con-

duct to test their passenger protection systems, including the

speed and angle at which vehicles must be crashed, the forces

that must be measured, and the precise “anthropomorphic test

devices” (i.e., crash-test dummies) that must be used.

Similarly, EPA regulations define exactly how auto-

makers must test the fuel economy of their vehicles, and fur-

ther provide for testing by the agency itself of a significant

percentage of vehicles as a double-check on the manufactur-

ers’ own testing. See generally www.epa.gov/fueleconomy/

index.htm; www.fueleconomy.gov/. Again, unlike the FTC’s

cigarette testing program, fuel economy testing is mandated

by regulations with the force of law. See 40 C.F.R. Parts 86

& 600. And those regulations not only specify precisely how

automakers must disclose fuel economy test results to con-

sumers, but also define fleet fuel economy performance stan-

dards (CAFE standards) that the automobile industry is re-

quired by law to meet.

Such regulation is hardly confined to the automobile in-

dustry. Drug and medical device manufacturers must comply

with standards governing the approval and marketing of new

drugs and medical devices. Once approved, drugs and de-

vices are subject to formal regulations that define their for-

mulation and design and the manufacturing practices to

which their makers must conform, as well as the precise con-

tents of their labels. See generally Medtronic, Inc. v. Lohr,

518 U.S. 470 (1996). Again, the regulatory scheme for drugs

and medical devices differs from the FTC’s cigarette testing

program both in that it involves regulations with the force of

law, and in that it directly regulates product design and pro-

duction.

FDA regulations also set forth detailed product testing

requirements that manufacturers are legally required to fol-

low. For instance, the FDA has promulgated a regulation pre-

scribing in detail how surgical gloves must be tested for

12

leaks, which calls not only for testing by manufacturers, but

also for sampling and testing by the agency itself. 21 C.F.R.

§ 800.20. Unlike the FTC’s test program for cigarettes, the

FDA’s testing has teeth: gloves that fail are “adulterated

within the meaning of section 501(c) of the Federal Food,

Drug, and Cosmetic Act, and are subject to regulatory action,

such as detention ... and seizure ....” Id. § 800.20(d)._

The FDA’s glove regulation is by no means unusual.

Other FDA regulations provide detailed testing and labeling

requirements for tampons, 21 C.F.R. § 801.430, impact-

resistant eyeglass lenses, id. § 801.410, hearing aids, id.

§ 801.420, and condoms. id. § 801.435. The tampon regula-

tion, for example, requires manufacturers to use an absor-

bency test conforming to the detailed descriptions and dia- ~

grams set forth in the regulatory text, and to report the results

on package labels using specifically defined terms. Again,

the regulation has the force of law, and any noncomplying

tampons are “misbranded” within the meaning of the Food,

Drug, and Cosmetic Act.

Other consumer products are also subject to detailed

regulatory testing regimes. Under regulations promuigated by

the Department of Energy, 10 C.F.R. Part 430, manufacturers

of refrigerators, freezers, dishwashers, water heaters, clothes

- washers and dryers, air conditioners, television sets, home

heating equipment, kitchen ranges and ovens, fluorescent

light tubes, showerheads, faucets, and toilets must use pre-

scribed test methods to measure the energy and water con-.

sumption of their products. And unlike the FTC’s cigarette

testing program, the Energy Department’s regulations not

only require product testing, but also require that the products

meet specific energy and water conservation standards.

The Consumer Product Safety Commission (CPSC), in

addition to engaging in voluntary efforts to improve product

safety similar to the FTC’s interactions with cigarette com-

panies, also promulgates mandatory safety standards for con-

sumer products, ranging from bicycle helmets to lawn mow-

13

ers to cigarette lighters to baby cribs. Mandatory CPSC stan-

dards are formally promulgated as regulations and published

in 16 C.F.R. Chapter II. Typically, they set forth design

and/or performance standards that manufacturers are required

to meet, and specify the exact test methods that must be used

to determine compliance.

The CPSC’s standards for flammability of children’s

sleepwear (sizes 7 through 14) are illustrative. The standards,

set forth at 16 C.F.R. Part 1616, occupy 30 pages of the Code

of Federal Regulations, and specify not only what criteria

affected products must meet and how they must be labeled,

but also how manufacturers must sample fabric for testing,

how the testing must be conducted (including eight pages of

engineering drawings describing the test chamber), what re-

cords the manufacturer must keep, the Commission’s en-

forcement policy, the role of the Commission itself in testing,

and the consequences of noncompliance. As to the latter, the

regulations state that “{t]he Commission will test fabrics and

garments subject to the standard for compliance with the

standard ... [and] will consider any failing results from com-

pliance testing as evidence of a violation of the standard and

section 3 of the Flammable Fabrics Act (15 U.S.C. § 1192).”

16 C.F.R. § 1616.35(f).

As a final example, the Occupational Safety and Health

Administration (OSHA), pursuant to the Occupational Safety

and Health Act, 29 U.S.C. § 651 et seq., formally promul-

gates regulations requiring employers to limit the exposure of

their workers to hazardous substances and conditions. Those

standards, which have the force of law, typically specify not

only precise exposure limits, but also means of compliance

and specific methods for exposure testing. For example,

OSHA’s recently promulgated rule on exposure to hexava-

lent chromium, 71 Fed. Reg. 10100 (Feb. 28, 2006), not only

prescribes a precise exposure limit (5 micrograms of hexava-

lent chromium per cubic meter of air as an eight-hour time-

weighted average), but also defines exactly the testing that

14

employers must use to determine compliance: “the employer

shall use a method of monitoring and analysis that can meas-

ure chromium (VI) to within an accuracy of plus or minus 25

percent (+/- 25%) and can produce accurate measurements to

within a statistical confidence level of 95 percent for airborne

concentrations at or above the action level.” Jd. at 10375. In

addition to requiring employers to monitor their compliance

using specified methods, OSHA itself periodically tests em-

ployer compliance, and violation of its regulations can result

in administrative sanctions. _

We could go on. The point is that federal regulation of

business activity is ubiquitous, and regulations that impose

detailed testing and compliance requirements are common-

place. Indeed, if anything is “unique” and “unusual” about

the FTC’s testing of cigarettes, it is that it has not been im-

posed by regulations with the force of law, that it does not

involve enforcement of any design or performance standards

regarding the regulated products, and that it involves no en-

forceable regulations concerning the use of test results in

cigarette advertising or marketing. No one who knew any-

thing about federal regulation could possibly credit Philip

Morris’s (and the Eighth Circuit’s) view that the “regulation”

of cigarette companies by the FTC is “uniquely,” “extraordi-

narily,” or even “unusually” extensive.

C. Whether Broadly or Narrowly Applied, the

Eighth Circuit’s Ruling Will Have Mischievous

Consequences.

Precisely because the federal “regulation” of cigarette

testing and marketing has been so feeble compared to other

federal regulatory regimes that impose enforceable legal re-

quirements on their subjects, the Eighth Circuit’s ruling is

likely to lead other regulated businesses who are sued by

consumers injured by their products to claim that they, too,

“acted under” a federal officer. Indeed, medical device manu-

facturers have already done so, see Parks v. Guidant Corp.,

402 F. Supp.2d 964 (N.D. Ind. 2005), as have banks claiming

15

to be acting under federal officers by virtue of federal regula-

tion of their lending practices. See King v. Provident Bank,

__ F. Supp. 2d __, 2006 WL 902271 (M.D. Ala. April 6,

2006).

If the Eighth Circuit’s decision remains intact, a number

of undesirable consequences are likely. Courts that are per-

suaded by its view that mere regulation, if extensive enough,

can justify removal, and that undertake a serious comparison

of the degree of regulation faced by defendants in other in-

dustries with that faced by cigarette companies, may allow a

broad range of defendants to remove cases under

§ 1442(a)(1), dramatically expanding the scope of federal

removal jurisdiction. Alternatively, courts may grasp at the

lifeline offered by the Eight Circuit’s characterization of the

Philip Morris case as “unique,” “unusual,” “extraordinary,”

and “unprecedented” and reject removal by defendants out-

side the cigarette industry even though, in reality, they face

regulations much more extensive than cigarette companies.

The district court’s decision in Parks reflects the latter ap-

proach (as well as open skepticism as to the correctness of

the Eighth Circuit’s ruling).

It may be, as Philip Morris predicts, that the latter ap-

proach will predominate. We certainly hope so. But even if

courts decline to extend the Eighth Circuit’s unwise holding

to other industries, much time and effort will be expended

litigating meritless removals. And, at the end of the day, the

cigarette companies will be left with a special benefit not

available to other more heavily regulated (and less culpable)

industries. A decision creating an unprincipled exception to

ordinary jurisdictional rules for the benefit of a single indus-

try should not be left standing by this Court.

CONCLUSION

Most people, including most lawyers, would probably be

surprised if not shocked to learn that Philip Morris had suc-

cessfully availed itself of a removal provision designed for

16

protection of federal officers, employees, and agents. Their

incredulity would only be heightened by the facts that the

federal government is itself suing Philip Morris for the very

actions the company claims were done under federal direc-

tion, and that the government has shown no sign of support-

ing Philip Morris’s entitlement to removal (unlike most other

federal officer removal cases heard by this Court, where the

United States represented the removing party). And the as-

sertion that cigarette companies are entitled to removal be-

cause they have faced more extensive regulation than other

industries would seem merely laughable—if it had not been

accepted by a United States Court of Appeals.

For the reasons stated above, and by the petitioner, the

Eighth Circuit’s decision merits review and correction. The

petition for a writ of certiorari should be granted.

Respectfully submitted,

ScoTT L. NELSON

Counsel of Record

BRIAN WOLFMAN

PUBLIC CITIZEN LITIGATION

GROUP

1600 20th Street, N.W.

Washington, D.C. 20009

(202) 588-1000

Attorneys for Amicus Curiae

Date: May 2006