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

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No. 05-1284 Lae G Ur sit

IN THE

Supreme Court of the Llnited States

LISA WAESONL ET AL..

Petitioners,

Pri ie NORRIS COMPANIES. ING. ET AL.

Respondents.

On Writ Of Certiorari

To The United States Court Of Appeals

For The Fighth Circuit

BRIEF FOR RESPONDENTS

MiRRAY R.GARNICK THE OborRt Bo OPSON

Jvstes ME. ROSENTHAL Comsel of Record

ARNOLD & PORTER LEP VIARK AL PERRY

S35 12th Street. NW. AIRC. TAY RAN

Washington, D.C. 20005 GIBSON. DUNN & CRE TCHER ELP

(202) 942-8000 1OS0 Connecticut Avenue. NOW

Washington. D.C. 20036

KENNET TIES. GEETER (202) 9SS-8S00

NIAY ER. BkRown, Rows &

\lvw LEP

l909 K Street. NW

Washington. DC. 20006

~( 202) 263-3000

Counsel for Re sPondents

QUESTION PRESENTED

The Federal Trade Commission requires that the tar and

nicotine smoke yields of cigarettes be tested using a single

method. The FTC performed the testing itself for 20 years,

and then delegated the testing function to the major members

of the tobacco industry. Respondent and others perform

those tests under the supervision, direction, and control of the

FTC, which reports the results to Congress and the public,

requires respondent to disclose the test results in its advertis-

ing, and permits respondent to use terms such as “light” to

describe the test results. The question presented is whether

respondent is thereby “acting under” a federal officer or

agency within the meaning of 28 U.S.C. § 1442(a)(1), such

that state-law claims directly challenging the federally man-

dated testing and disclosure regime can be removed to fed-

eral court.

RULE 29.6 STATEMENT

The corporate disclosure statement included in the brief

in Opposition to the petition for a writ of certiorari remains

accurate.

TABLE OF CONTENTS

Page

INTENT sicicsinieseisanidiesincscteiceiiatitanivetiapinesiicaininitaiideaidiainbiiabmeneiaunpie l

SUMMARY OF ARGUMENT ........0ccscsccccoscscossscecsecsnsesessoves 16

I TIDTTTE sciichehiesniiteiaeseciipinehtal abies 20

THE UNDISPUTED FACTS ESTABLISH THAT

THE REMOVAL REQUIREMENTS OF 28 U.S.C.

§ 1442(A)(1) ARE SATISFIED ................cccccsssegesseoresesers 21

A. PMUSA WaAs “ACTING UNDER” A FEDERAL

OFFICER IN TESTING AND DISCLOSING TAR

Sa 23

1. PMUSA Assists The FTC In The

Performance Of Its Official Duties................. 26

a. A Person Acts Under A Federal

Officer When Assisting The Officer ....... 27

b. PMUSA Assists The FTC When

Conducting Tar And _ Nicotine

Se cecilia ciltsilpenssiiileininiianeitéilbaididlaaatannis 28

2. Alternatively, PMUSA Is Subject To

The FTC’s Direction And Control.................. 33

a. A Person Acts Under A Federal

Officer When Subject To The

Officer’s Direction And Control ............. 33

b.. PMUSA Is Subject To The FTC’s

Direction And Control In Testing

And Disclosing Tar And Nicotine

Soin iessseciehichisileisiiciesieatathbeiiciahnenanesidinaniciinniads 37

3. The Parade Of Horribles Imagined By

Petitioners And Their Amici Is Illusory.......... 42

B. PETITIONERS’ SUIT RELATES To “Act{s]

Se a: 44

C. PMUSA HAS A _ COLORABLE FEDERAL

SEEPS PR I ne res RRR es es ee 46

aI sccicnniciniutienechinmstiisniitiatiiaiibaiasdasemaneiainialesasinansitil 49

TABLE OF AUTHORITIES

Page(s)

CASES

In re Am. Brands, Inc., 79 F.T.C. 255 (1971) wrens 1]

Arizona v. Manypenny, 451 U.S. 232 (1981)... eee 20, 43

Brown v. Brown & Williamson Tobacco Corp.,

___ F.3d___, 2007 WL 470406.

EE TT iiceincsidinicsld ieeieiiitiianestinisiasdeltiabisekociiias 19, 46, 47

Brown V. Philip Morris Inc.,

ee Fe er Be icintiesenniintenetncinenssnininiiiniiiiti 32

City of Greenwood v. Peacock, :

a MTT icsnisitheeicelieecieiciopiedeishaeghabiobionniatia 24

Colorado v. Symes, 286 U.S. 510 (1932).......2, 12, 20, 22, 38

Davis v. South Carolina, 107 U.S. 597 (1883)........ 16, 27, 28

Dixson v. United States, 465 U.S. 482 (1984) ........... eee 32

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

SII nis icicirhscatsctnsastnseniinindpnanisimsesnaiinniusiiienedaiia 21

Ford Motor Co. v. FTC,

og 4]

Franchise Tax Bd. v. Constr. Laborers Vacation

IA EE I FI ccsscsinrseeesitaccnensninisineiiintiagninnnsliie 22

FTC v. Brown & Williamson Tobacco Corp.,

olf} | ke 2 ee 9, 39, 40

Gen. Motors Corp. v. Abrams,

og ff Enno 4]

Gold-Washing & Water Co. v. Keyes,

ee COU I cisenisciiiomsinieninvitnnsiedinadenscnntiatenanentsacuniiiin 22

Good v. Altria Group, Inc., 436 F. Supp. 2d 132

(D. Me. 2006), appeal docketed,

No. 06-1965 (1st Cir. June 23, 2006) 0.0... ccceeeeseeeeeees 46

Hines v. Davidowitz, 312 U.S. 52 (1941)... ceceeeeeeeee 47

Int'l Primate Prot. League v. Adm’rs of Tulane

| ene 25

Izumi Seimitsu Kogyo Kabushiki Kaisha v.

United States Philips Corp.,

Fee SA iF GS icninsisnnniioniniimiaiiaial 44

Jefferson County v. Acker, 527 U.S. 423 (1999)............ 22, 47

In re Lorillard, 92 F.T.C. 1035 (1978)...........ccccccssssserecesreees 9

Lorillard Tobacco Co. v. Reilly,

Se CAN I GE cicrcristnininnmnienniaiiolinia ane 3

Magnin v. Teledyne Cont’l Motors,

ee fs BNI TOT 31

Maryland v. Soper (No. 1), 270 U.S. 9 (1926) .........cccecceeseeeees

sniesinialanentianiinnaaieniasibiunaindiammnimeitd 21, 22, 28, 34, 35

Mesa v. California, 489 U.S. 121 (1989).........0..0.... 21, 25, 46

NLRB vy. Bell Aerospace Co.,

SD GA te ATER cinccevssscticttcnenietinimsiaenaaiaiamaanl 41

Peterson v. Blue Cross/Blue Shield of Tex.,

Fee Fe BP NG Pi Pe icnecconistntiemniomiaiieiinaania 32

R.R. Co. v. Mississippi, 102 U.S. 135 (1880)... ee 22

Ryan v. Dow Chem. Co.,

781 F. Supp. 934 (E.D.N.Y. 1992)............ccsccsscsssessreores 14

Screws v. United States, 325 U.S. 91 (1945) .......cccceceeeeeeeees 20

Swierkiewicz v. Sorema N.A.,

Fe as SP ED certcsevininiccnintseinnisiaintiiinieliaaaae 22

Taylor v. United States, 495 U.S. 575 (1990) ......cccccceeceeeeees 22

Tennessee v. Davis, 100 U.S. 257 (1880) ....21, 33, 37, 46, 47

United Parcel Serv., Inc. v. Mitchell,

ESE SE 26

United States v. Philip Morris USA, Inc.,

449 F. Supp. 2d | (D.D.C. 2006),

appeal docketed, No. 06-5267

I Sis MTT cccennciecnecennegencensneenesenmnenontested 42

Virginia v. Paul, 148 U.S. 107 (1893).......... andeiiiniineniuets 2, 38

Vt. Agency of Naturai Res. v. United States

ex rel. Stevens, 529 U.S. 765 (2000) ..........ccccccececeeeeeeeees 26

Willingham v. Morgan, 395 U.S. 402 (1969) .000.0....ccccccceeeees

ianeelsslltlssbieleilceindatienalideiintiniinademmennenees 18, 20, 21, 22, 25, 35, 44

Winters v. Diamond Shamrock Chem. Co.,

PEAY Ut ncrcncanneinesssesssnssccssseasnecosees 38

STATUTES

Act of Feb. 4, 1815, ch. 31, 3 Stat. 198.0000 eee 23

Act of Mar. 2, 1833, ch. 57, 4 Stat. 633 0000... eeeeeeeeeeee 23

Act of Mar. 3, 1863, ch. 81, 12 Stat. 756.000... ccc eeeeeeee 23

Act of June 30, 1864, ch. 173, 13 Stat. 241 0. 23

Act of July 13, 1866, ch. 184, 14 Stat. 171 2000 24

Act of Mar. 3, 1911, ch. 231, 36 Stat. 1097 00 24

Class Action Fairness Act of 2005, Pub. L. No.

acai eticrencermtennmennnenesconanees 21

Federal Courts Improvement Act of 1996, Pub.

es Ee PEMEINEE, SUEY ccceicscsccessscesesonestnessesseeecs 24

Securities Litigation Uniform Standards Act of

1998, Pub. L. No. 105-353, 112 Stat. 3227.00.00... 21

at 26

vil

a es Oe I nicsinrccercnteeetnimsienesintacnbetinnititaiidiieiimumnasbaenninnaiil 3

SE an eeiies UiP S ae ciicincrainiteinineentiisecinitepinicadihseitianiinieiiigahmanidiiiibaaanidaane 3

Seas CITT ciccitcuienerssitnsiccnieiicittiiniieticipaiihinsiaanadibiiiiiiastipialsiaaeal 32

I ii passim

as Oe CE ciraicsintnnnncettenmnitsitanninisiemsiuuicatinniiiatetsiinbii 22

ee Uk SUE hiersviccititenntcipsatinsiiprinnseentinguiiitininitnciahintapamniiaiiamanaiiaes 35

REGULATIONS

SA Ue Balt excetinciteocutinsennnineseapendeniibideeaiaiaiadivenniaenainionitiel 9

i & ) S sacceneanecinmnenanmaanetinatinsabenaiieiedt 9

16 CPR. § 2.34 .......n..nscsscrsssesnnsevesncsossnsenssessensessseconcsnssesenees 12

ey Cy, as Ce ccreenanscernicteciiteincicstnntntiinnticiaiiiita 3

30 FOG. Tam, 14.276 COy. 4, 1GGG) ccccccccccccescscccccccescccsesccsceves 5

ae 5

Fee Te BO i iccttrcncssceiccninnsmninnictaninnincintiia 8

48 Fed. Reg. 15,953 (Ape. 13, 1963)..........cccccccroccecccsceseseeeees 10

ee es Pe OR By Be cereccccccccscenscercccsnesimatnions 7

FD Fed. Reg. $1,960 (Oct. 13, 1994) .......cccccccccccscccocesccesceees 12

62 Fed. Reg. 48,158 (Sept. 12, 1997)............ccscccesseceees 10, 45

RULE

es ies apnea Cat iacstesicccnseerscnciercemisniiaheitieneiiiaiieniinnsiiaseamidasabinii 22

OTHER AUTHORITIES

142 Cong. Rec. $6517 (June 19, 1996) 0000... 36, 47

H.R. Rep. No. 308, 80th Cong., Ist Sess. (1947)................. 24

H.R. Rep. No. 798, 104th Cong.,

SRT ere me ee 25, 36, 46

Vill

RANDOM HOUSE UNABRIDGED DICTIONARY

NARS SSA ae RES AEST ETA ALE ES one ED 17,

WEBSTER’S NEW INTERNATIONAL DICTIONARY

OF THE ENGLISH LANGUAGE (2d ed. 1958)

WEBSTER’S THIRD NEW INTERNATIONAL

DICTIONARY (2002)

OPP eee eee eee eee eee eee eee eee eee eee ee ee eee)

BRIEF FOR RESPONDENTS

—

Respondent Philip Morris USA Inc. (PMUSA) respect-

fully submits that the judgment of the court of appeals should

be affirmed.

STATEMENT

Petitioners filed this putative class action in Arkansas

state court, alleging that PMUSA’s marketing of Cambridge

Lights and Marlboro Lights cigarettes violated an Arkansas

consumer protection law. At the heart of petitioners’ com-

plaint is a challenge to the testing system mandated by the

Federal Trade Commission (FTC) for measuring and disclos-

ing tar and nicotine smoke yields for all cigarettes. Because

PMUSA engages in the challenged conduct on behalf of and

at the direction of the FTC, PMUSA removed the action to

federal court pursuant to 28 U.S.C. § 1442(a)(1), which au-

thorizes removal by private persons “acting under” federal

officers and agencies. The district court denied petitioners’

motion to remand and, on interlocutory appeal, the court of

appeals affirmed.

A. Factual Averments

1. Petitioners allege that PMUSA’s representations that

its Cambridge Lights and Marlboro Lights cigarettes “are

‘lighter’ (i.e., lower [in] tar and nicotine) than regular ciga-

rettes are deceptive and misleading” under Arkansas law.

Pet. App. 64a. Although styled as a challenge to PMUSA’s

marketing of “light” cigarettes, petitioners’ state-law claims

are ultimately premised on the theory that the “testing appa-

ratus” that the federal government requires tobacco compa-

nies to use in measuring tar and nicotine yields—and upon

which descriptors such as “light” are based —fails to reflect

actual tar and nicotine deliveries to smokers. /d. at 63a. Ac-

- cording to petitioners, consumers of Marlboro Lights and

Cambridge Lights “receive higher levels of tar and nicotine

than the testing apparatus registers” because individuals

smoke cigarettes with lower yields of tar and nicotine more

_ intensely to compensate for the lower yields. /d. at 64a. Pe-

titioners further allege that PMUSA “designed Cambridge

Lights and Marlboro Lights to register lower levels of tar and

nicotine on the testing apparatus . . . than would be delivered

to the consumers of the product.” /d. at 63a-64a. Petitioners

claim that PMUSA “controlled the tar and nicotine delivery

of Cambridge Lights and Marlboro Lights cigarettes under

machine testing conditions apparently to achieve support for

[its] representations that [its] ... cigarettes are ‘light’ and

contain decreased tar and nicotine.” /d. at 64a. On behalf of

a putative class, petitioners are seeking unspecified compen-

satory and punitive damages. /d. at 71a, 73a.

2. Federal law authorizes removal of state-court actions

against “any officer (or any person acting under that officer)

of the United States or of any agency thereof, . . . for any act

under color of such office.” 28 U.S.C. § 1442(a)(1).

PMUSA invoked this provision because petitioners’ claims

directly challenge the results of the FTC’s testing methodol-

ogy, and because, by carrying out the tar and nicotine testing

and disclosure of which petitioners complain, PMUSA was

both assisting the FTC in performing its regulatory functions

and acting at the direction of the FTC.

As this Court has explained, “in all cases of removal

from the state courts, the jurisdiction of the [federal courts]

rests and depends upon the statements made in the petition

for removal.” Virginia v. Paul, 148 U.S. 107, 122 (1893).

Petitioners did not dispute the factual averments in

PMUSA’s Notice of Removal (see Pet. App. 58a); those

averments are therefore to be taken as true in determining

whether the prerequisites to Section 1442(a)(1) removal exist

in this case. Colorado v. Symes, 286 U.S. 510, 515 (1932)

(“As the [party opposing removal] did not join issue with any

of the allegations of the petition for removal, the jurisdiction

of the federal court and the validity of its action [in denying

the motion to remand] are to be determined upon the allega-

tions of the petition”). The following statement summarizes

the Notice of Removal (Pet. App. 74a-97a) and its supporting

documentation.

a. Congress has placed significant restrictions on the to-

bacco industry’s marketing activities, including through the

enactment of the Federal Cigarette Labeling and Advertising

Act (FCLAA). “[T]o the extent that Congress contemplated

additional targeted regulation of cigarette advertising, it

vested that authority in the FTC” (Lorillard Tobacco Co. v.

Reilly, 533 U.S. 525, 548 (2001)), which possesses authority

under Section 5 of the Federal Trade Commission Act

(FTCA) to prevent unfair or deceptive trade practices. 15

U.S.C. § 45(a)(1); see also id. § 1336; Pet. App. 78a. For

more than fifty years, the FTC has repeatedly brought that

regulatory authority to bear on the tobacco industry, most

frequently with regard to tobacco companies’ advertising and

promotional statements about the tar and nicotine yields of

their cigarettes.

The FTC has long sought to ensure that consumers are

provided standardized information about the tar and nicotine

yields of cigarettes that they can consider in making their

brand choices. Pet. App. 78a. Because the various tobacco

companies initially used different testing methods to substan-

tiate their tar and nicotine advertising claims, it was impossi-

ble for consumers to draw meaningful interbrand compari-

sons, and in 1959, the FTC directed the tobacco industry to

cease making all tar and nicotine claims, upon pain of an en-

forcement action for engaging in deceptive trade practices.

Pet. App. 79a; J.A. 12.

In 1964, the Surgeon General issued a report that con-

cluded that smoking causes lung cancer. J.A. 76. The report

prompted the public-health community to begin an intensive

inquiry into possible means of reducing the risks associated

with smoking. The FTC strongly supported that effort. See

29 Fed. Reg. 530, 532 (Jan. 22, 1964) (“it is the Federal

Trade Commission’s policy to encourage the development of

less hazardous cigarettes”).

Two years later, the U.S. Public Health Service issued a

report concluding that the “preponderance of scientific evi-

dence strongly suggests that the lower the ‘tar’ and nicotine

content of cigarette smoke, the less harmful would be the ef-

fect.” J.A. 25; see also Pet. App. 79a. In transmitting the

report to Congress, the Secretary of Health, Education, and

Welfare suggested that “requiring the identification of ‘tar’

and nicotine levels on packages and in advertising . . . would

be an important step and would result in the progressive re-

duction of ‘tar’ and nicotine levels because of public de-

mand.” J.A. 23. Public-health organizations made similar

recommendations to the FTC. Pet. App. 79a. The American

Cancer Society, for example, wrote to “express the convic-

tion . . . that the Federal Trade Commission can render a ma-

jor service to the health of the public by rescinding its restric-

tion relative to the mention of tar and nicotine content of

cigarette smoke in cigarette advertising.” Resp. C.A. App.

14; see also ibid. (“The National Interagency Council on

Smoking and Health hopes that [the FTC] will take the steps

necessary to make it permissible for cigarette manufacturers

to list tar and nicotine content on the labels of cigarette pack-

ages”)

The FTC’s response was immediate. To “augment in-

formation available to the public on the tar and nicotine con-

tent of cigarettes” and “prompt cigarette manufacturers to

develop less hazardous cigarettes” (J.A. 15), the FTC in 1966

lifted its prohibition on the advertising of tar and nicotine

yields (id. at 20). In an effort to facilitate consumers’ inter-

brand comparisons of tar and nicotine yields, the FTC pro-

vided that only statements substantiated by testing under the

“Cambridge Filter Method” (id. at 21), a technique for meas-

uring a Cigarette’s tar and nicotine yields that later became

known as the “FTC Method” (id. at 76), would be permitted.

Pet. App. 79a. The FTC explained that it “favor[ed] giving

smokers as much information about the risks involved in

smoking as is possible and to that end favor[ed] mandatory

disclosure of tar and nicotine content, as measured by a stan-

dard test.” J.A. 59 (internal quotation marks omitted); see

also id. at 21; Pet. App. 79a-80a.

The FTC Method measures the tar and nicotine yields of

a cigarette’s smoke using a machine that takes a two-second

puff on a cigarette every minute down to a specified butt

length. Pet. App. 8la. The tar and nicotine emitted from the

cigarette are collected and measured by the machine, and an

average tar and nicotine rating is calculated based on a sam-

ple of 100 cigarettes. /bid.!

Shortly after designating the FTC Method as the exclu-

sive means for computing tar and nicotine yields disclosed in

advertising, the FTC held public hearings concerning possi-

ble modifications to the test’s procedures. 31 Fed. Reg.

14,278 (Nov. 4, 1966); J.A. 27. During the hearings, Dr.

Clyde Ogg, the Department of Agriculture employee who

was the principal developer of the FTC Method, emphasized

that “|s]ince smokers vary so greatly in their smoking habits,

the [FTC] Method will not tell a smoker how much tar and

| The FTC specified detailed requirements for conducting the test:

1. Smoke cigarettes to a 23 mm. butt length, or to the length of

the filter and overwrap plus 3 mm. if in excess of 23 mm.,

2. Base results on a test of 100 cigarettes per brand, or type,

3. Cigarettes to be tested will be selected on a random basis, as

opposed to “weight selection,”

4. Determine particulate matter on a “dry” basis ... to deter-

mine the moisture content,

5. Determine and report the “tar” content after subtracting mois-

ture and alkaloids (as nicotine) from particulate matter,

6. Report tar content to the nearest whole milligram and nico-

tine content to the nearest 1/10 milligrams.

32 Fed. Reg. 11,178, 11,178 (Aug. 1, 1967); J.A. 46.

_ -

nicotine he will get from any given cigarette.” Resp. C.A.

App. 98. Dr. Ogg explained that the FTC Method “will indi-

cate, however, whether [a smoker] will get more from one

than from another cigarette if there is a significant difference

between the two and if he smokes the two in the same man-

ner.” /bid. PMUSA and other tobacco companies submitted

written comments that similarly explained that the FTC

Method did not approximate human smoking behavior. J.A.

31-32 (“The [FTC] Method does not measure the volume of

smoke—or the [particulate matter] or nicotine in the volume

of smoke-—that any human being will draw from smoking

any particular cigarette”) (emphases in original).

The FTC decided to retain the FTC Method as the exclu-

sive means for measuring tar and nicotine yields, despite its

knowledge that the methodology did not approximate actual

smoking behavior. The FTC explained that “[nJo test can

precisely duplicate conditions of actual human smoking.”

J.A. 53. “[T]he purpose of testing,” the FTC continued, “is

not to determine the amount of tar and nicotine inhaled by

any human smoker, but rather to determine the amount of tar

and nicotine generated when a cigarette is smoked by ma-

chine in accordance with the prescribed method.” /d. at 54;

see also id. at 53 (“The [FTC] considers it most important

that the test results be based on a reasonable standardized

method and that they be capable of being presented to the

public in a manner that is readily understandable”).

b. In 1967, as part of its effort to provide standardized

tar and nicotine ratings to consumers, the FTC took the

“highly unusual” step of opening its own laboratory to per-

form testing on the tar and nicotine yields of cigarettes. J.A.

85; see also Pet. App. 8la. Never before had the FTC in-

volved itself so directly in an industry, and it has not done so

again since. See J.A. 260 (the “operation of the cigarette lab

was really something that was unique”) (statement of C. Lee

Peeler, Deputy Director, FTC Bureau of Consumer Protec-

tion); Pet. App. 82a.

Notwithstanding the known limitations inherent in the

FTC Method, the FTC adopted that methodology because,

the FTC later explained, “the [testing] numbers provide le-

gitimate comparative information to consumers attempting to

lower their overall tar and nicotine consumption.” Resp.

C.A. App. 392. The FTC periodically published the results

of its tar and nicotine tests in the Federal Register and also

included the results in annual reports to Congress. Pet. App.

82a.

In 1987, the FTC closed its testing laboratory due to cost

considerations, and delegated responsibility for testing to the

Tobacco Institute Testing Laboratory (TITL), which is

funded by the major participants in the tobacco industry and

continues to this day to conduct tar and nicotine testing using

the FTC Method. Pet. App. 82a-83a. “The methodology,

processes and procedures that the ... TITL employ(s] are

identical to those the Commission . . . followed in the past.”

55 Fed. Reg. 42,768, 42,768 (Oct. 23, 1990). The FTC ob-

tains the results of that testing from the individual tobacco

companies and publishes the results in the Federal Register

and in annual reports to Congress. Pet. App. 83a; J.A. 48.

The TITL performs its testing “under the supervision of a

representative of the FTC” (55 Fed. Reg. at 42,768), who has

unrestricted access to the laboratory to ensure that the testing

is being conducted in accordance with the detailed specifica-

tions of the FTC Method. Pet. App. 83a; J.A. 86.

c. In the years immediately following the FTC’s deci-

sion to lift the prohibition on the disclosure of tar and nico-

tine yields, relatively few tobacco companies veluntarily dis-

closed tar and nicotine yields in their advertising. As part of

its effort to encourage consumers to rely on the FTC Method

results in making their brand choices and to facilitate the de-

velopment of cigarettes with lower tar and nicotine yields,

the FTC in 1970 proposed a Trade Regulation Rule that

would have made it an unfair or deceptive practice under

Section 5 of the FTCA for tobacco companies not to disclose

tar and nicotine yields in their advertising. Pet. App. 85a.

This proposal had the strong support of the public-health

community. Resp. C.A. App. 16.

At the FTC’s invitation, the leading tobacco companies,

including PMUSA, submitted a proposed agreement to the

FTC that required disclosure of FTC-measured tar and nico-

tine yields in all advertisements. Pet. App. 85a. The FTC

sought an industry agreement from the major cigarette manu-

facturers because, in the words of then-Chai:. ian Miles W.

Kirkpatrick: “The Commission’s objective is to insure that

all cigarette advertising make[s] these tar and nicotine disclo-

sures as soon as possible. ... A trade regulation rule, if con-

tested in the courts, might take a long time to become effec-

tive; a workable, voluntary plan by the industry could be put

into effect immediately.” J.A. 145; see also id. at 147 (“The

Commission believes that if the [industry agreement] oper-

ates satisfactorily, the public will, at the earliest possible

time, be informed of the tar and nicotine content of ciga-

rettes”); Pet. App. 86a.

Despite the FTC’s desire to secure the mandatory disclo-

sure of tar and nicotine yields as quickly as possible, the FTC

rejected the tobacco industry’s initial proposal as inadequate.

J.A. 159. The major tobacco companies thereafter submitted

a revised version of the agreement that included modifica-

tions to meet the FTC’s specific requirements. /d. at 160.

After subjecting the revised agreement to public comment,

the FTC accepted the agreement and terminated its rulemak-

ing proceedings, while reserving the right to reinstitute those

proceedings in the event of industry noncompliance. 36 Fed.

Reg. 784 (Jan. 16, 1971); J.A. 146. ;

Since the disclosure agreement went into effect in 1970,

the FTC has strictly policed its terms and ensured that the

major tobacco companies’ cigarette advertisements disclose

tar and nicotine yields, as calculated using the FTC Method.

Indeed, the FTC has emphasized that the “public interest re-

quires that all test results presented to the public be based on

a uniform method” because “{u]se of more than one testing

method would . . . only serve to confuse or mislead the pub-

lic.” J.A. 53. To that end, the FTC issued an advisory opin-

ion that instructed a tobacco company that “it would be de-

ceptive to advertise a tar figure which is higher than the latest

applicable FTC tar figure.” Jn re Lorillard, 92 F.T.C. 1035,

1035 (1978) (emphasis added); see a/so J.A. 202. The FTC

cautioned that “[i]f the headlined tar level [in an advertise-

ment] differs from the tar figure disclosed in accordance with

the cigarette industry’s voluntary disclosure agreement, con-

sumer confusion might be generated.” Lorillard, 92 F.T.C.

at 1035; see also J.A. 202. “[T]ar values which are set forth

in cigarette advertisements,” the FTC emphasized, “must be

consistent with the latest applicable FTC tar number.” Loril-

lard, 92 F.T.C. at 1036; see also J.A. 202.3

Similarly, when another tobacco company began includ-

ing testing results from an independent laboratory in its ad-

vertisements for a uniquely designed cigarette, the Barclay

brand, that could not be accurately tested using the FTC

Method, the FTC initiated an enforcement action against the

company. See FTC v. Brown & Williamson Tobacco Corp.,

778 F.2d 35 (D.C. Cir. 1985). The suit alleged that the de-

fendant’s use of results generated by a means other than the

FTC Method was deceptive, and culminated in a holding that

the advertisements violated Section 5 of the FTCA. /d. at 43.

The FTC has also repeatedly reevaluated the propriety of

its tar and nicotine testing procedures and studied whether

2 The agreement required tobacco advertising to bear the legend

“mg. ‘tar’, _ mg. nicotine av. per cigarette, FTC Report (date).” J.A.

167.

3 The FTC is bound by its advisory opinions. See 16 C.F.R. §§ 1.1,

1.3.

the FTC Method should be replaced by an alternative testing

procedure. Pet. App. 83a. In so doing, it has considered at

length the same methodological limitation—the FTC

Method’s inability to replicate the variability of human

smoking behavior and account for the tendency of some con-

sumers to smoke “light” cigarettes more intensely to com-

pensate for lower nicotine yields—that forms the basis for

petitioners’ claims. For example, in the early 1980s, the FTC

undertook a multiyear review of its testing methodology and

solicited public comments about whether the test should be

modified in light of compensatory smoking behavior to re-

flect more accurately smokers’ actual tar and nicotine intake.

48 Fed. Reg. 15,953 (Apr. 13, 1983); J.A. 129. Similarly, in

1997, the FTC initiated a still-ongoing inquiry into whether

the FTC Method should be modified or abandoned alto-

- gether. 62 Fed. Reg. 48,158, 48,158 (Sept. 12, 1997). To

date, the FTC has elected to retain the FTC Method, despite

its known methodological limitations, because epidemiologi-

cal evidence has suggested that lower FTC-measured tar and

nicotine yields are associated with reduced health risks (J.A.

85), and because the FTC Method provides consumers with a

meaningful tool for making interbrand comparisons regard-

ing tar and nicotine yields. See 62 Fed. Reg. at 48,158 (“The

purpose of the [testing] program was to provide smokers

seeking to switch to lower tar cigarettes with a single, stan-

dardized measurement with which to choose among the exist-

ing brands”); see also Pet. App. 80a-8 La.

d. A number of tobacco companies, including PMUSA,

use descriptors—such as “low tar,” “lowered tar and nico-

tine,” and “light”—in their marketing. The descriptors re-

flect the results of testing under the FTC Method and signal

to consumers that certain brands have lower tar and nicotine

yields under the FTC Method than other brands. The FTC

has repeatedly endorsed the use of descriptors and has re-

peatedly defined the term “low tar” in its annual reports to

Congress as denoting 15.0 milligrams or less of tar. See J.A.

210 n.8 (“The FTC has not defined ... any term related to

‘tar’ level except for ‘low tar,’ which the FTC defines as 15.0

mg. or less tar’’); id. at 213 n.11 (same); Pet. App. 86a-87a.

In 1967, just two months after beginning testing with the

FTC Method, the FTC issued a policy statement explaining

that it “would not challenge statements or representations of

or relating to tar and nicotine content of cigarettes where they

are shown to be accurately and fully substantiated by tests

conducted in accordance with the standardized testing meth-

ods and procedures used by the” FTC. J.A. 15-16 (internal

quotation marks omitted); see also id. at 59. The FTC re-

peated this policy statement in its 1968 annual report to Con-

gress. Id. at 15-16.

Subsequently, through a series of consent agreements

with individual tobacco companies, the FTC reaffirmed that

tar and nicotine descriptors may be used to encapsulate the

results of the FTC Method. Pet. App. 87a. In 1971, the FTC

entered into a consent order with American Brands that per-

mitted the company to state “in advertising that any cigarette

manufactured by it, or the smoke therefrom, is low or lower

in ‘tar’ by use of the words ‘low,’ ‘lower,’ or ‘reduced’ or

like qualifying terms,” so long as “the statement is accompa-

nied by a clear and conspicuous disclosure” of tar and nico-

tine yields, as measured by the FTC Method. Jn re Am.

Brands, Inc., 79 F.T.C. 255, 257 (1971); J.A. 203; see also

Pet. App. 87a. Similarly, in 1995, the FTC entered into a

consent order with the American Tobacco Company prohibit-

ing it from making comparative claims about smokers’ actual

intake of tar and nicotine, while expressly providing that the

company could use descriptive terms such as “low,” “lower,”

and “lowest,” in conjunction with tar and nicotine yields un-

der the FTC Method. 59 Fed. Reg. 51,980, 51,981 (Oct. 13,

1994); J.A. 219; Pet. App. 87a.4

Against this backdrop, PMUSA introduced Marlboro

Lights in 1971 and Cambridge Lights in 1986, and marketed

its Marlboro Lights as having “lowered tar and nicotine.”

Both brands have always had less than 15 milligrams of tar,

as measured by the FTC Method; their packaging has always

borne the FCLAA-mandated health warning labels; and their

advertising has always included the FTC-required legend

disclosing tar and nicotine yields under the FTC Method.

B. Rulings Below

Petitioners moved to remand the action to state court. In

their motion, petitioners acknowledged that PMUSA “asserts

that it committed the acts complained of in the Complaint on

behalf of and at the direction of the United States govern-

ment.” Pet. C.A. App. 64. In their supporting memorandum

(at 2), petitioners labeled PMUSA’s extensive factual aver-

ments “fascinating, but ultimately irrelevant.” Neither in the

motion nor in the memorandum did petitioners dispute any of

the factual averments in the Notice of Removal or introduce

any evidence to the contrary. Indeed, they acknowledged

that there was an “undisputed factual record.” Pet. for Inter-

locutory Appeal 4. Accordingly, the averments in the Notice

uf Removal are taken to be both true and controlling for pur-

poses of evaluating the propriety of removal. See Symes, 286

U.S. at 515.

1. The district court denied petitioners’ motion to re-

mand. Observing that the “facts surrounding the FTC’s in-

volvement with cigarette testing and advertising are not in

dispute” (Pet. App. 58a), the district court surveyed the regu-

latory history at length, explaining that “{iJn addition to

4 Consistent with the FTC’s policy for all consent decrees, these de-

crees were published for public notice and comment before being final-

ized. 16 C.F.R. § 2.34.

mandating the disclosure of tar and nicotine values under the

FTC Method in all cigarette advertising, the FTC permits a

manufacturer to advertise a cigarette as ‘low tar’ or ‘light’ if

a cigarette’s tar value under the FTC Method is 15.0 mg or

less.” Pet. App. 29a. Indeed, “the FTC has . . . expressed its

view that cigarette companies engage in deceptive advertis-

ing ... when they advertise cigarettes as ‘light’ or ‘low tar’

without publishing [FTC] Method test results” to substantiate

such statements. bid. (emphasis added). The FTC also “in-

spect([s] the TITL testing facility, compel[s] cigarette manu-

facturers to disclose tar and nicotine ratings for all cigarettes

both to the FTC and in all advertisements, and publish{es] tar

and nicotine figures in the Federal Register.” /d. at 34a.

The district court “conclude(d] that [PMUSA] acted un-

der the direction of a federal officer within the meaning of

§ 1442(a)(1) when it cited the tar and nicotine values derived

from the FTC Method in its Marlboro Light and Cambridge

Light advertisements.” Pet. App. 41a. “The FTC has repeat-

edly examined the very inaccuracies in the FTC Method that

form the basis for [petitioners’] claims of deceptive advertis-

ing,” the court continued, but “the FTC continues to this day

to mandate use of the FTC Method for testing and advertis-

ing.” /d. at 43a. Petitioners’ “claim{] that [PMUSA’s] ad-

vertisements are deceptive,” the district court concluded,

“necessarily calls into question the FTC’s regulation of those

advertisements.” /d. at 44a.

2. The Eighth Circuit accepted petitioners’ interlocutory

appeal and affirmed. The court noted that “Section 1442(a)

requires that a defendant: (1) act under the direction of a fed-

eral officer; (2) show a nexus or ‘causal connection’ between

the alleged conduct and the official authority; [and] (3) have

a colorable federal defense.” Pet. App. 4a. The court deter-

mined that each requirement was met on the undisputed facts

averred in the Notice of Removal.>

With respect to the first requirement, the court of appeals

explained that “[w]hether a defendant is ‘acting under’ the

direction of a federal officer depends on the detail and speci-

ficity of the federal direction of the defendant’s activities and

whether the government exercises control over the defen-

dant.” Pet. App. 6a. “Mere participation in a regulated in-

dustry,” the court emphasized, “is insufficient to support re-

moval.” Jbid. The court determined that much more was

involved than ordinary regulation:

Here, the FTC controls the delivery of tar and nico-

tine information to consumers. ... [T]he FTC itself

conducted the entire testing process for twenty years

and now requires the cigarette manufacturers to

conduct the testing to its specifications. The FTC

continues to inspect the industry labs, independently

verify the results, and publish the ratings.

Id. at 9a. The FTC also “compelled the tobacco companies

to adhere to a testing and advertising standard that was

prompted by the FTC.” /d. at 10a. Indeed, “(t]he FTC in-

volved itself in the tobacco industry to an unprecedented ex-

tent,” id. at 13a, leaving the court of appeals “convinced that

the record in this case shows a level of compulsion that es-

tablishes that [PMUSA] was indeed ‘acting under’ the direc-

tion of a federal officer.” /d. at 10a.

The court of appeals also concluded that there was a

“causal nexus” between the FTC’s direction and the acts

challenged by petitioners. Pet. App. I4a. As the court ex-

5 The court noted a fourth requirement—that the defendant be a “per-

son” that it found satisfied. Pet. App. 17a-18a; see also id. at 35a (peti-

tioners “do not dispute that both of the Defendant corporations are ‘per-

sons’ within the meaning of § 1442(a)(1)") (both citing Ryan v. Dow

Chem. Co., 781 F. Supp. 934 (E.D.N.Y. 1992)); note 8, infra.

plained, by challenging the use of “low tar descriptors such

as ‘lights’ or ‘lowered tar,”” petitioners “claim it is deceptive

for [PMUSA] to use a low tar descriptor in conjunction with

its cigarettes’ FTC ratings.” /d. at 14a-15a. The court recog-

nized, however, that the FTC had determined that this con-

duct was not deceptive: “[t]he very combination [petitioners]

challenge as deceptive is the same combination the FTC re-

quires to not be deceptive.” /d. at 1Sa (emphasis in original).

Accordingly, “[wJhether |PMUSA]’s labeling of cigarettes as

‘lights’ is deceptive directly implicates the enforcement and

wisdom of the FTC’s tobacco policies” (ibid.), and petition-

ers’ “claims are sufficiently related to the FTC’s direct and

comprehensive control to establish a causal connection.” /d.

at 16a.

Finally, although petitioners did not dispute the issue,

the court of appeals considered whether PMUSA’s federal

preemption defense was “colorable.” The court had “no hesi-

tation in concluding that [PMUSA], in its Notice of Removal,

has set forth a colorable federal defense.” Pet. App. 17a.

Judge Gruender, who “fully concur[red] in the court’s

opinion and judgment,” wrote separately “to emphasize that

{the Eighth Circuit’s decision} should not be construed as an

invitation to every participant in a heavily regulated industry

to claim that it, like [PMUSA\], acts at the direction of a fed-

eral officer merely because it tests or markets its products in

accord with federal regulations.” Pet. App. 18a. “In this

case, as the court’s opinion makes clear, the FTC’s direction

and control of the testing and marketing practices at issue ts

extraordinary.” /bid. “Because the FTC passed the function

of performing the testing to the cigarette companies while

allowing them no independent control of the process whatso-

ever,” Judge Gruender concluded, “this is a rare case in

which federal officer jurisdiction is appropriate.” /bid.

SUMMARY OF ARGUMENT

The undisputed averments in PMUSA’s Notice of Re-

moval establish that petitioners’ state-court action was prop-

erly removed by PMUSA pursuant to 28 U.S.C. § 1442(a)(1)

under either the “assisting” standard endorsed by petitioners

and the Solicitor General or the “direction and control” stan-

dard applied by the court of appeals.

A. Since its earliest iteration in 1815, the federal officer

removal statute has authorized federal officers, and private

parties acting on behalf or at the direction of federal officers,

to remove cases to federal court. The statute provides a fed-

eral forum for federal officers and those acting under them in

order to prevent state courts from impeding the implementa-

tion of federal policies. The current version of the statute

authorizes removal by “[t}he United States or any agency

thereof or any officer (or any person acting under that offi-

cer) of the United States or of any agency thereof, sued in an

official or individual capacity for any act under color of such

office.” 28 U.S.C. § 1442(a)(1). ;

1. Petitioners and the Solicitor General contend that a

person is “acting under” a federal officer only when that per-

son assists or acts on behalf of a federal officer in the per-

formance of the officer’s official duties. Although that inter-

pretation of Section 1442(a)(1) is too narrow, PMUSA’s

conduct would fall within the scope of the removal statute

even if the standard advanced by petitioners and the Solicitor

General were correct.

a. It is well-established that the federal officer removal

statute is at least broad enough to encompass private persons

who assist federal officers in discharging their official re-

sponsibilities. The Court has explained that “the protection

which the [removal] law ... furnishes to the [officer], also

shields all who lawfully assist him in the performance of his

official duty.” Davis v. South Carolina, 107 U.S. 597, 600

(1883).

b. Under the undisputed averments of the Notice of Re-

moval, PMUSA assists and acts on behalf of the FTC by

coriducting the official tar and nicotine testing program that

the FTC itself carried out for twenty years. The FTC took

the highly unusual step of opening its own cigarette testing

facility in 1967 to ensure that consumers were provided with

reliable, standardized data regarding the tar and nicotine

yields of cigarettes. When cost considerations caused the

FTC to close its facility, it delegated testing responsibility to

PMUSA and the other major tobacco companies. The FTC

specifies the testing procedure to be used at the industry labo-

ratory and retains the unrestricted right to inspect the facility

to ensure that its detailed testing requirements are being fol-

lowed. The FTC obtains the testing results from PMUSA

and publishes the results as official government data in the

Federal Register and in reports to Congress; it also requires

PMUSA to disclose the testing results in its advertising, and

authorizes PMUSA to use descriptors such as “light” when

those claims are substantiated by the testing results. PMUSA

thereby assists the FTC in carrying out its official functions

of testing the tar and nicotine yields of cigarettes and provid-

ing consumers with standardized tar and nicotine information

that can be used in making brand choices. By performing the

official testing program on the FTC’s behalf, PMUSA “act/s}

under” the FTC.

2. In any event; the standard endorsed by petitioners and

the Solicitor General is unduly narrow. This Court has never

limited the federal officer removal statute solely to private

persons who assist or act on behalf of a federal officer. As

the court of appeals recognized, removal is also available to

private persons who act under a federal officer’s direction

and control.

a. To “act[] under” means to act “‘subject to the author-

ity, direction, or supervision’” of another. Pet. Br. 12 (quot-

ing RANDOM HOUSE UNABRIDGED DICTIONARY 2059 (2d ed.

1993)). Petitioners point to Section 1442(a)(1)’s “color of

... office” requirement in an attempt to limit the definition of

“acting under” to private persons who are exercising “official

authority.” This Court, however, has already authoritatively

defined the “color of ... office” language as requiring a

“*causal connection’ between the charged conduct and as-

serted official authority.” Willingham vy. Morgan, 395 U.S.

402, 409 (1969). The provision therefore distinguishes be-

tween conduct a private person performs at the direction of a

federal officer (which is a basis for removal) and conduct the

private person undertakes independently of the federal officer

(which is not a basis for removal). The language does not

impose an official authority requirement.

b. PMUSA is subject to the FTC’s direction and control

in testing and disclosing the tar and nicotine yields of ciga-

rettes. As set forth in PMUSA’s Notice of Removal, the FTC

has exercised uniquely detailed regulatory control over the

tobacco industry: It initially banned all references to tar and

nicotine yields in advertising, then reversed course and au-

thorized such disclosures when substantiated by the FTC

Method, and finally—through its 1970 agreement with the

tobacco industry—-compelled PMUSA and the other major

tobacco companies to disclose FTC Method tar and nicotine

yields in all advertising. The FTC performed the tar and

nicotine testing itself for twenty years, before delegating the

responsibility to the tobacco mdustry, subject to pervasive

FTC supervision. The FTC has authorized PMUSA to use

descriptors such as “light” and “low tar” only if they are sub-

stantiated by the results of testing under the FTC Method.

The efforts of petitioners and the Solicitor General to rewrite

the history of tobacco regulation disregard the controlling

averments in PMUSA’s Notice of Removal and the consis-

tent factual findings of both lower courts. ;

3. Although petitioners and the Solicitor General sug-

gest that authorizing PMUSA to remove would result in a

flood of removals by regulated industries, that suggestion is

contradicted by the unique history of federal tobacco regula-

tion. Although many industries may be subject to federal

testing requirements, it is exceedingly rare for the federal

government to delegate to an industry the responsibility for

carrying out official testing that the federal government itself

previously performed. Authorizing removal in this unique

regulatory setting would not extend Section 1442(a)(1) to

participants in other regulated industries.

B. In this Court, petitioners do not dispute that their

claims relate to “act|s] under color of ... office.” As the

court below correctly recognized, the “causal nexus” re-

quirement is met because petitioners’ lawsuit is a direct at-

tack upon the federal government’s national tobacco policy

and the testing methodology that the FTC has prescribed for

determining and disclosing tar and nicotine yields.

Petitioners allege that PMUSA’s use of “light” descrip-

tors is deceptive because smokers do not receive lower levels

of tar and nicotine compared to other brands, as is indicated

by the FTC Method. The FTC, however, has mandated that

the major tobacco companies use that testing methodology as

the exclusive means of calculating tar and nicotine yields—-

despite the test’s known inability to measure actual smokers’

tar and nicotine intake—and has authorized the tobacco in-

dustry to use descriptors to reflect the results of the FTC

Method. Because petitioners’ suit attempts to second-guess

the FTC’s regulatory decision-making, it should be heard in a

federal forum to ensure that state courts do not sit in judg-

ment over the federal government’s tobacco policy.

C. Petitioners do not dispute that PMUSA has a color-

able federal preemption defense. See, e.g., Brown v. Brown

& Williamson Tobacco Corp., __ F.3d __, 2007 WL

470406 (Sth Cir. 2007). The validity of that defense, of

course, is a question for the district court to address in the

first instance.

ARGUMENT

“(T}his Court has held that the right of removal is abso-

lute for conduct performed under color of federal office, and

has insisted that the policy favoring removal ‘should not be

frustrated by a narrow, grudging interpretation” of

§ 1442(a)(1)..” Arizona v. Manypenny, 451 U.S. 232, 242

(1981) (quoting Willingham v. Morgan, 395 U.S. 402, 407

(1969)). As the Court has explained:

The various acts of Congress constituting the sec-

tion as it now stands were enacted to maintain the

supremacy of the laws of the United States by safe-

guarding officers and others acting under federal

authority against peril of punishment for violation of

state law or obstruction or embarrassment by reason

of opposing policy on the part of those exerting or

controlling state power.

Colorado v. Symes, 286 U.S. 510, 517 (1932) (emphasis

added). “It scarcely need be said,” the Court continued, “that

such measures are to be liberally construed to give full effect

to the purposes for which they were enacted.” /bid.; see also

Willingham, 395 U.S. at 406 (“The federal officer removal

statute is not ‘narrow’ or ‘limited’”).©

6 Notwithstanding this Court’s repeated holdings that Section

1442(a)(1) “is not ‘narrow,”” petitioners twice refer to it as “narrow” on

the very first page of their merits brief. Pet. Br. |. Petitioners also sug-

gest that Section 1442(a)(1) should be strictly construed. /d. at 30 (citing

Screws v. United States, 325 U.S. 91 (1945)). The plurality in Screws,

however, addressed the removal of state criminal prosecutions, an “‘ex-

ceptional’ procedure” (325 U.S. at 111) that represents a significantly

greater infringement on state sovereignty than an ordinary civil removal.

Whatever concerns this Court may have about broadly construing Section

1442(a)(1) in the criminal setting, those concerns are wholly inapposite in

this civil action. See Willingham, 395 U.S. at 409 & n.4 (distinguishing

between civil and criminal cases with respect to the jurisdictional show-

ing necessary to remove under Section 1442(a)(1)). Indeed, although

Congress has provided only very limited means of removing criminal

The broad construction historically afforded the removal

statute reflects the reality that “[t}he legislation of a State

may be unfriendly. It may affix penalties to acts done under

the immediate direction of the national government, and in

obedience to its laws.” Tennessee v. Davis, 100 U.S. 257,

263 (1880). “For this very basic reason, the right of removal

under § 1442(a)(1) is made absolute whenever a suit in a

state court is for any act ‘under color’ of federal office, re-

gardless of whether the suit could originally have been

brought in a federal court.” Willingham, 395 U.S. at 406; see

also Mesa v. California, 489 U.S. 121, 136 (1989) (Section

1442(a)(1) “serves to overcome the ‘well-pleaded complaint’

rule which would otherwise preclude removal even if a fed-

eral defense were alleged”).

THE UNDISPUTED FACTS ESTABLISH THAT THE

REMOVAL REQUIREMENTS OF 28 U.S.C.

§ 1442(A)(1) ARE SATISFIED

To remove a case under 28 U.S.C. § 1442(a)(1), a pri-

vate person must adequately allege in its notice of removal

that (A) it was “acting under” a federal officer, (B) the suit is

“for an{] act under color of such office,” and (C) the remov-

ing party has a colorable federal defense. U.S. Br. 2. A court

may exercise removal jurisdiction if the removing defendant

is able to meet the requirements of Section 1442(a)(1) as to

any of the plaintiffs’ claims. Cf Exxon Mobil Corp. v. Alla-

pattah Servs., Inc., 545 U.S. 546, 560 (2005).

Thus, the central question in this case is whether “the

facts disclosed by the . . . petition for removal bring the de-

fendants within” the federal officer removal statute. Mary-

[Footnote continued from previous page]

prosecutions to federal court, it has repeatedly enacted legislation in re-

cent years expanding defendants’ nght to remove state-law civil actions

to federal court. See, e.g., Class Action Fairness Act of 2005, Pub. L. No.

109-2, 119 Stat. 4; Securities Litigation Uniform Standards Act of 1998,

Pub. L. No. 105-353, 112 Stat. 3227.

land v. Soper (No. 1), 270 U.S. 9, 32 (1926). In answering

that question, the Court “credit[s] the [removing defendant's}

theory of the case.” Jefferson County v. Acker, 527 U.S. 423,

432 (1999); see also Willingham, 395 U.S. at 407 (“The offi-

cer need not win his case before he can have it removed”’).

Where, as here, the removing defendant’s factual averments

stand undisputed, “no determination of fact is required, but it

must fairly appear from the showing made [in the removal

petition] that [the] claim is not without foundation and is

made in good faith.” Symes, 286 U.S. at 519; see also Soper

(No. 1), 270 U.S. at 33-34.7

Here, the undisputed facts set forth in PMUSA’s Notice

of Removal establish the prerequisites to removal under Sec-

tion 1442(a)(1). Petitioners’ complaint is, at its core, a direct

attack upon the official tar and nicotine testing program that

the FTC delegated to PMUSA and upon PMUSA’s com-

pelled disclosure of (and reliance on) those testing results.

Petitioners allege that PMUSA’s use of descriptors based on

FTC Method results in its advertising is deceptive because

consumers of Marlboro Lights and Cambridge Lights “re-

ceive higher levels of tar and nicotine than the [FTC-

7 Where a case is removable on the basis of a federal defense, the

courts look to the removal papers to establish the bases of federal juris-

diction. Franchise Tax Bd. vy. Constr. Laborers Vacation Trust, 463 U.S.

1, 11 n.9 (1983) (citing R.R. Co. v. Mississippi, 102 U.S. 135, 140 (1880),

and Gold-Washing & Water Co. v. Keyes, 96 U.S. 199, 203-04 (1878)).

The modern removal! statute requires only “a notice of removal . . . con-

taining a short and plain statement of the grounds for removal.” 28

U.S.C. § 1446(a). The “short and plain statement” standard is identical to

the one applicable to complaints filed in federal court, see Fed. R. Civ. P.

8(a), and the standards should therefore be construed equivalently. Tay-

lor v. United States, 495 U.S. 575, 597 (1990). Thus, a case removed

under Section 1442(a)(1) can be remanded “only if it is clear” that juris-

diction is lacking “under any set of facts that could be proved consistent

with the allegations” in the notice of removal. Swierkiewicz v. Sorema

N.A., 534 U.S. 506, 514 (2002) (construing Rule 8) (internal quotation

marks omitted).

required] testing apparatus registers” and because PMUSA

purportedly “designed Cambridge Lights and Marlboro

Lights to register lower levels of tar and nicotine on the...

testing apparatus . . . than would be delivered to the consum-

ers of the product.” Pet. App. 63a-64a. As detailed in the

Notice of Removal, the tar and nicotine testing results on

which PMUSA bases its use of descriptors are generated

while PMUSA is acting under the FTC because the FTC has

delegated its official testing responsibility to PMUSA and

has designated the FTC Method as the exclusive basis for

any statement relating to tar and nicotine yields in advertis-

ing, including through the use of descriptors.

A. PMUSA Was “ACTING UNDER” A FEDERAL

OFFICER IN TESTING AND DISCLOSING TAR AND

NICOTINE YIELDS

Since its earliest incarnation, the so-called “federal offi-

cer” removal statute has authorized removal not only by fed-

eral officers, but also by private parties acting at their direc-

tion or behest. Thus, the Customs Act of 1815 authorized

removal by “any collector, naval officer, surveyor, inspector,

or any other officer, civil or military, or any other person

aiding or assisting, agreeable to the provisions of this act, or

under colour thereof.” Act of Feb. 4, 1815, ch. 31, § 8, 3

Stat. 198 (emphasis added); see a/so Act of Mar. 2, 1833, ch.

57, § 3, 4 Stat. 633 (authorizing removal by “any officer of

the United States, or other person, for or on account of any

act done under the revenue laws of the United States, or un-

der colour thereof”) (emphasis added); Act of Mar. 3, 1063,

ch. 81, § 5, 12 Stat. 756 (authorizing removal by “any officer,

civil or military, or... any other person” for acts “during the

present rebellion, by virtue or under color of any authority

derived from or exercised by or under the President of the

United States, or any act of Congress”); Act of June 30,

1864, ch. 173, § 50, 13 Stat. 241 (extending the 1833 Act).

In 1866, Congress adopted the “acting under” formula-

tion that appears in the current statute. The Revenue Act of

1866 authorized removal by “any officer of the United States,

appointed under or acting by authority of [the revenue

laws],” and “any person acting under or by authority of any

such officer on account of any act done under color of his

office.” Act of July 13, 1866, ch. 184, § 67, 14 Stat. 171; see

also City of Greenwood v. Peacock, 384 U.S. 808, 823 n.20

(1966) (“Although, in the revenue officer removal provision

of the Revenue Act of 1866, Congress expressly character-

ized the ‘other person’ as one ‘acting under or by authority of

any [revenue] officer,’ that statute obviously drew on the

comparable characterization of the ‘other person’ in the Cus-

toms Act of 1815”) (citations omitted). The Judicial Code of

1911 similarly authonzed removal by “any officer appointed

under or acting by authority of any revenue law of the United

States” and “any person acting under or by authority of any

such officer, on account of any act done under color of his

office or of any such law.” Act of Mar. 3, 1911, ch. 231,

§ 33, 36 Stat. 1097.

“Prior to 1948 the federal officer removal statute, as here

relevant, was limited to revenue officers engaged in the en-

forcement of the criminal or revenue laws. The provision

was expanded in 1948 to encompass a// federal officers.”

Peacock, 384 U.S. at 820 n.17 (emphasis added); see also

H.R. Rep. No. 308, 80th Cong., Ist Sess., A134 (1947). The

1948 enactment also “expressly expanded the right of re-

moval to encompass ... any person ‘acting under’ any such

officer.” U.S. Br. 14. The 1948 version of the statute author-

ized removal by “{a]ny officer of the United States or any

agency thereof, or person acting under him, for any act under

color of such office.” 28 U.S.C. § 1442(a)(1) (1948).

Congress expanded the reach of the statute again in 1996

to encompass federal agencies (Federal Courts Improvement

Act of 1996, Pub. L. No. 104-317, § 206, 110 Stat. 3847,

3850), in response to this Court’s conclusion that the prior

version did not apply to agencies. See Jnt’l Primate Prot.

League v. Adm’rs of Tulane Educ. Fund, 500 U.S. 72, 76

(1991). In so doing, Congress explained that Section

1442(a)(1) provides a federal forum for “important and com-

plex federal issues such as preemption.” H.R. Rep. No. 798,

104th Cong., 2d Sess., at 20 (1996).

As relevant here, the current version of the statute au-

thorizes removal by “[t]he United States or any agency

thereof or any officer (or any person acting under that offi-

cer) of the United States or of any agency thereof, sued in an

official or individual capacity for any act under color-of such

office.” 28 U.S.C. § 1442(a)(1); see also Mesa, 489 U.S. at

134 (“the specialized grants of jurisdiction in the last clause

of subsection (1) concerning the apprehension of criminals

and the collection of revenue and subsections (2)-(4) of

§ 1442(a) are largely the ‘residue’ of the pre-1948, more lim-

ited removal statutes now entirely encompassed by the gen-

eral removal provision of the first clause of subsection (1)”).

Although the predecessors to the modern statute were

enacted “during times of discord between States and the fed-

eral government” (Pet. Br. 1), since 1948 the statute has ap-

plied to ail federal officers, and a// persons acting under such

officers, without regard to any such “discord.” Mesa, 489

U.S. at 126. Congress has determined that the very possibil-

ity of state disregard of federal prerogatives is sufficient rea-

son to invest the federal courts with jurisdiction to hear cases

involving the implementation of a federal program by public

or private actors. Willingham, 395 U.S. at 406. The statute

thus allows federal officers and agencies, and private persons

acting under them, to litigate their federal defenses in federal

court.8

8 The Solicitor General acknowledges that “the text and genesis of the

statute” indicate that “private persons” may remove under it (U.S. Br.

15), and petitioners made a similar concession below (Pet. App. 35a).

One group of amici supporting petitioners, however, contends that corpo-

1. PMUSA Assists The FTC In The

Performance Of Its Official Duties

Petitioners and the Solicitor General contend that a per-

son is “acting under” a federal officer within the meaning of

Section 1442(a)(1) only when that person is assisting or act-

ing on behalf of a federal officer in the performance of the

officer’s official duties. Pet. Br. 14; see also U.S. Br. 10 (“A

private person acts under a federal officer within the meaning

of the federal officer removal statute only when that person

acts on behalf or otherwise assists the officer in carrying out

the officer’s official duties”). According to petitioners, re-

moval is appropriate where “federal control and oversight . . .

is substantial and the tasks being performed are those that the

government might otherwise perform itself.” Pet. Br. 32-33.

Removal is authorized here even under the unduly re-

strictive standard advocated by petitioners and the Solicitor

General. Under stringent FTC “control and oversight,” the

industry-operated Tobacco Institute Testing Laboratory per-

[Footnote continued from previous page]

rations are not “persons” within the meaning of Section 1442(a)(1). Br.

Do» Public Citizen, Inc. et al. 6. This argument was not raised by petition-

ers, and thus need not be considered by this Court. United Parcel Serv.,

Inc. v. Mitchell, 451 U.S. 56, 60 n.2 (1981). It is, in all events, meritless:

The Dictionary Act makes clear that the term “person,” unless the context

requires otherwise, includes corporations. See | U.S.C. § 1. Nothing in

the context of Section 1442(a)(1) requires otherwise. Contrary to amici’s

contention (Br. for Public Citizen, Inc. et al. 10), it is hardly incongruous

for the term “person” to include private corporations but not agencies.

This Court has frequently given the term precisely that construction in

other contexts. See, e.g., Vt, Agency of Natural Res. v. United States ex

rel. Stevens, 529 U.S. 765, 782 (2000). Moreover, amici’s reading would

preclude many removals—for example, by government contractors—that

petitioners and the government concede are appropriate. See, e.g., Pet.

Br. 33; U.S. Br. 25. Indeed, it would make little sense for Congress to

authorize the employee of a corporation acting under a federal officer to

remove, but not the corporation itself.

forms tar and nicotine testing that the FTC had “perform{[ed]

itself” for twenty years. When the FTC closed its own test-

ing laboratory, it delegated its official testing responsibilities

to PMUSA and the other major tobacco companies, wi.ch,

under the auspices of the TITL, conduct tar and nicotine iest-

mg on the FTC’s behalf. The FTC obtains the results of that

testing from the tobacco companies and disseminates them in

official government publications. In this manner, PMUSA

assists the FTC and its officials in the performance of their

statutory duties.

a. A Person Acts Under A Federal Officer

When Assisting The Officer

This Court has already determined that the “acting un-

der” requirement of Section 1442(a)(1) is at least broad

enough to encompass—although not necessarily restricted

to—persons who “assist” a federal officer in the discharge of

his official duties.

In Davis v. South Carolina, 107 U.S. 597 (1883), the

Court held that an individual who shot a suspect while assist-

ing a U.S. marshal in making an arrest was entitled to remove

a state criminal prosecution to federal court under the Reve-

nue Act of 1866, which authorized removal by any “officer

appointed under or acting by authority of any revenue law of

the United States, or any person acting under or by authority

of such officer.’” /d. at 600. The Court explained that “the

protection which the [removal] law thus furnishes to the [of-

ficer], also shields all who lawfully assist him in the per-

formance of his official duty.” /bid.

Similarly, in Soper (No. 1), the Court concluded that a

chauffeur who drove federal prohibition agents during a raid

on an illegal distillery possessed removal rights under the

then-extant version of the federal officer removal statute that

were identical to those of the agents themselves: As a

“helper to the four officers,” the Court explained, the chauf-

feur had the “same right to the benefit of [the removal stat-

ute] as [the officers].” 270 U.S. at 30. (The Court ultimately

denied removal to all of the defendants due to the absence of

the requisite causal nexus between the challenged conduct

and the defendants’ official activities. /d. at 34.)

The history of the federal officer removal statute, and

this Court’s interpretation of it, therefore establish that pn-

vate persons may remove an action to federal court if they

were “aiding or assisting” the federal officer (Customs Act of

1815); “lawfully assist{ing] him in the performance of his

official duty” (Davis v. South Carolina, 107 U.S. at 600); or

simply “help[ing]” a federal officer (Soper (No. 1), 270 U.S.

at 30). These decisions do not hold that the “acting under”

provision of Section 1442(a)(1) is limited to defendants who

are aiding or assisting a federal officer in the discharge of

official duties. They do establish, though, that the provision

of aid or assistance is sufficient to meet the “acting under”

requirement of Section 1442(a)(1). Here, it is undeniable

that PMUSA assists the FTC in its tar and nicotine testing

program.

b. PMUSA Assists The FTC When

Conducting Tar And Nicotine Testing

PMUSA is “acting under” a federal officer because it

operates the TITL facility, which—subject to extensive FTC

oversight—performs the delegated tar and nicotine testing

responsibilities that the FTC itself carried out for two dec-

ades. PMUSA thereby aids, assists, and helps the FTC and

its officers to carry out governmental functions.

The FTC opened its cigarette testing facility in 1967 in

order to provide consumers with standardized tar and nico-

tine ratings and to encourage the development of lower tar

and nicotine cigarettes. The FTC adopted the FTC Method

as the sole testing methodology for use at its laboratory be-

cause it is the FTC’s position that “the public interest re-

quires that all test results presented to the public be based on

a uniform method.” J.A.53. “[T]he purpose of testing,” the

FTC explained, was “to determine the amount of tar and

nicotine generated when a cigarette is smoked by machine in:

accordance with the prescribed method” (id. at 54) and thus

to generate test results “based on a reasonable standardized

method ... capable of being presented to the public in a

manner that is readily understandable” (id. at 53).

As the former deputy director of the FTC’s Bureau of

Consumer Protection has explained, “the Commission’s op-

eration of a testing system for the industry at taxpayer ex-

pense was highly unusual.” J.A. 85-86. The FTC took this

unprecedented step in order to “provide legitimate compara-

tive information to consumers attempting to lower their over-

all tar and nicotine consumption.” Resp. C.A. App. 392.

When cost considerations forced the FTC to close its

cigarette testing laboratory, it delegated testing responsibility

to the industry-operated TITL, which conducts testing in ac-

cordance with the requirements of the FTC Method. The

FTC has unrestricted access to the laboratory and closely

monitors its testing procedures to ensure that the FTC

Method is being accurately followed. See J.A. 86 (“TITL’s

work is regularly monitored by the Commission’s contractor,

... who has virtually unrestricted access to the laboratory

and makes unannounced visits to inspect it and check the

testing process”); see also Resp. C.A. App. 652. The FTC

obtains the TITL’s testing results from the individual tobacco

companies and continues to publish the results in the Federal

sults of its own laboratory testing. Pursuant to the 1970 in-

dustry agreement on tar and nicotine disclosures, these re-

sults are included in the major tobacco companies’ cigarette -

advertising.

Just as the soldier in Davis was “assist{ing]” the U.S.

marshal in discharging his responsibilities under the federal

revenue laws and the chauffeur in Soper was “help[ing]” the

prohibition agents perform their official duties under the pro-

hibition laws, PMUSA was delegated and is assisting the

FTC in discharging its official responsibility under the FTCA

to test and disclose the tar and nicotine yields of cigarettes.

As an historical matter, PMUSA’s delegated responsibility

for testing cigarettes’ tar and nicotine yields is no different

from a private individual’s delegated responsibility to exam-

ine imported goods to determine whether they had been

shipped from England in violation of the Customs Act of

1815. Just as that prix ate individual was “aiding or assisting”

the customs officials who had previously undertaken that ex-

amination as part of their official duties, PMUSA is “aiding

or assisting” the FTC, which previously performed tar and

nicotine testing itself pursuant to its responsibilities under the

FTCA.

PMUSA’s right to remove under Section 1442(a)(1) fol-

lows from the undisputed fact that the FTC itself conducted

tar and nicotine testing for twenty years, before delegating

that responsibility to PMUSA and the other tobacco compa-

nies, which now perform that official function on the FTC’s

behalf. See U.S. Br. 27 (arguing that federal contractors are

entitled to remove under Section 1442(a)(1) because “they

perform tasks that the government would otherwise have to

perform itself through its own employees”). As petitioners

themselves recognize, “[t]o ‘act under’ means to act as a

subordinate or agent of another, subject to the other’s control

or supervision in exercising the other’s authority.” Pet. Br.

12; see also U.S. Br. 11 (“‘under’ is commonly used to de-

scribe a person or entity in a subordinate position who acts

on behalf of or otherwise assists the person in the superior

position to carry out the superior’s duties”). That is precisely

what PMUSA does when, subject to extensive FTC supervi-

sion, it tests cigarettes on behalf of the FTC. There is no

suggestion that the FTC lacked authority to conduct the tests

itself for twenty years, or to disclose the results of those tests

to Congress and the public; when the FTC ordered the indus-

try to instead perform the testing (under the FTC’s control),

the identical conduct was no less authorized by federal law.

And just as an FTC official could have removed a suit chal-

lenging the testing methodology and FTC-authorized de-

scriptors, so too may PMUSA.

The Solicitor General nevertheless contends that

PMUSA is “not producing a product or service that the gov-

ernment would otherwise be forced to produce for itself

through its own employees.” U.S. Br. 28. That assertion is

flatly contradicted by the undisputed fact that PMUSA is pro-

viding both a service (tar and nicotine tests) and a product

(the results of those tests, which are conveyed by the FTC to

Congress and the public) that the government previously pro-

duced for itself through its wn employees. Pet. App. 82a-

83a. Thus, when it comes to testing cigarettes for tar and

nicotine, PMUSA can hardly be said to be an “officious in-

termeddler.” U.S. Br. 13. The testing method is prescribed

by the FTC, the industry’s laboratory is inspected by the

FTC, and the results are reported by the FTC to Congress and

the public. The FTC has, effectively, contracted out its test-

ing obligations—the obligations it had shouldered itself for

twenty years in the exercise of its official authority-—to

PMUSA and other industry participants.

The Solicitor General points to Magnin v. Teledyne Con-

tinental Motors, 91 F.3d 1424 (11th Cir. 1996), as an exam-

ple of a case where removal under Section 1442(a)(1) was

appropriate. U.S. Br. 26. There, a private individual was

delegated authority to inspect aircraft by the Federal Aviation

Administration. Here, PMUSA has been delegated authority

to test cigarettes by the FTC. Thus, just as surely as an em-

ployee of the FTC’s testing laboratory would have been able

to invoke Section 1442(a)(1) to remove a suit challenging the

FTC’s methodology for testing cigarettes, PMUSA is author-

ized to remove this suit challenging the FTC Method, the

TITL’s testing results, and the corresponding descriptors be-

cause PMUSA has been delegated the FTC’s testing respon-

sibilities and is assisting and acting on behalf of the FTC.?

Based on the undisputed averments of its Notice of Re-

moval, PMUSA has therefore established that, under the

standard advocated by petitioners and the Solicitor General,

it is “acting under” the FTC ‘for purposes of Section

1442(a)(1).

9 in Dixson v. United States, 465 U.S. 482 (1984), the Court held that

officers of a private, nonprofit corporation that administered a federal

community development block grant were “public officials” for purposes

of the federal bribery statute, 18 U.S.C. § 201(a), because they were “act-

ing for or on behalf of the United States” within the meaning of the stat-

ute. The defendants had been delegated the official role of administering

a social service program established by Congress, subject to federal

guidelines governing distribution of the funds, and the Court concluded

that they were “acting for or on behalf of the United States” in imple-

menting that program. Dixson, 465 U.S. at 497. Like the defendants in

Dixson, PMUSA-—through its operation of the TITL—is “acting . . . on

behalf of the United States” by performing official testing responsibilities

delegated to it by the federal government. See Peterson v. Blue

Cross/Blue Shield of Tex., 508 F.2d 55, 57 (Sth Cir. 1975) (holding that a

corporation delegated official responsibility for administering aspects of

the Medicare program was entitled to remove under Section 1442(a)(1)).

Contrary to petitioners’ intimation (Pet. Br. 14), there is no inconsistency

in PMUSA’s argument that, on the one hand, it is “acting under” a federal

officer in its acts of testing and disclosing the tar and nicotine yields of

cigarettes, but that, on the other hand, it is a private company whose op-

erations in general are its own and not the government’s. See Brown v.

Philip Morris Inc., 250 F.3d 789, 800 (3d Cir. 2001) (rejecting a Bivens

action against the tobacco companies because they could not be consid-

ered federal actors). That a private party may carry a federal mantle for

some purposes does not mean that such an entity is coextensive with the

government for all purposes, including the constitutional constraints on

government actors.

2. Alternatively, PMUSA Is Subject To The

FTC’s Direction And Control

This Court has never established a definitive standard for

determining whether a private party is “acting under” a fed-

eral officer for purposes of Section 1442(a)(1). Although the

Court’s precedents indicate that aiding or assisting a federal

officer is sufficient to satisfy the “acting under” standard,

they do not establish that the provision of aid or assistance is

necessary to meet that requirement. Indeed, this Court has

never decided a case in which it has held that a private party

failed to meet the “acting under” standard, and thus the outer

bounds of that requirement have not been defined.

This Court has recognized that the federal officer re-

moval statute has particular application where state law “af-

fix{es] penalties to acts done under the immediate direction

of the national government, and in obedience to its laws.”

Tennessee v. Davis, 100 U.S. at 263 (emphasis added). In

this case, petitioners seek state-law “penalties”’—

compensatory and punitive damayes—for “acts done” by

PMUSA “under the immediate direction of the national gov-

ernment”—the testing and disclosure of tar and nicotine

yields—“in obedience to its laws”—the FTCA and FCLAA.

Accordingly, in addition to being entitled to removal un-

der the “assisting” standard endorsed by petitioners and the

Solicitor General, PMUSA is authorized to remove this case

under the standard applied by the court of appeals because it

was acting under the FTC’s direction and control when carry-

ing out the tar and nicotine testing program and when using

FTC-approved descriptors that correspond to those testing

results.

a. A Person Acts Under A Federal Officer

When Subject To The Officer’s Direction

And Control

As Tennessee v. Davis indicates, the “acting under” re-

quirement can be met where a private party acts at the direc-

tion of a federal officer. Indeed, the plain meaning of the

phrase “acting under” is to act “‘subject to the authority, di-

rection, or supervision’” of another. Pet. Br. 12 (quoting

RANDOM HOUSE UNABRIDGED DICTIONARY 2059 (2d ed.

1993)). It was thus no accident that the Court in Soper (No.

1) noted that the chauffeur was employed “under [the offi-

cers’] order and by direction of [a superior officer].” 270

U.S. at 30 (emphasis added).

Petitioners, however, suggest that the private individual |

acting under a federal officer must not only be subject to the

officer’s direction and control but also must be subject to that

control “in exercising the [federal officer’s] authority.” Pet.

Br. 12. This gloss on the plain meaning of “acting under”

has no support in the statutory text. A private company is

just as much “acting under” a federal officer when that offi-

cer compels the company to take, or refrain from, certain ac-

tion—for example, by prescribing the circumstances under

which the company can include specific language in its ad-

vertising—as when the federal officer requires the private

individual to perform a portion of its own official responsi-

bilities. As petitioners’ own dictionaries state, to act under

someone means to act “‘subject to the bidding or authority

of” that person (Pet. Br. 12 (quoting WEBSTER’S THIRD NEW

INTERNATIONAL DICTIONARY 2487 (2002))), and there is

simply no basis for reading into those two words an addi-

tional requirement that the person acting under a federal offi-

cer discharge the officer’s official responsibilities. See a/so

U.S. Br. 11 (“In ordinary parlance, the term ‘under’ indicates,

inter alia, ‘subjection, guidance, or control’”) (quoting

WEBSTER’S NEW INTERNATIONAL DICTIONARY OF THE

ENGLISH LANGUAGE 2765 (2d ed. 1958)).

To support their strained attempt to insert an “official au-

thority” requirement into the “acting under” clause, petition-

ers point to the provision of Section 1442(a)(1) limiting re-

moval to “any act under color of . . . office,” which petition-

ers contend “evinces Congress’s expectation that a removing

party ... will have some claim to have been acting in an offi-

cial capacity in carrying out public functions.” Pet. Br. 13.

But this Court has already defined the “act[ing] under color

of .. . office” requirement in Section 1442(a){1) as requiring

“a showing of a ‘causal connection’ between the charged

conduct and asserted official authority.” Willingham, 395

U.S. at 409. The “color of .. . office” requirement therefore

separates the conduct that a federal officer performs as a re-

sult of his official position (which entitles him to removal)

from conduct unrelated to that position (which does not enti-

tle him to removal).

Where a private person is “acting under” a federal offi-

cer, the “color of ... office” requirement similarly distin-

guishes between conduct the person undertakes at the direc-

tion or behest of the federal officer (which is a basis for re-

moval) from independent activities that are unrelated to the

federal officer’s directions (which do not constitute a basis

for removal). Thus, although PMUSA is “acting under” the

FTC at least some of the time, it is only entitled to remove

those suits that challenge activities undertaken in the course

of “acting under” the FTC. The “color of ... office” re-

quirement establishes the subject-matter constraints on the

cases that federal officers and those acting under federal offi-

cers can remove to federal court. It does not, as petitioners

suggest, superimpose an “official authority” requirement on

the “acting under” clause.!®

10 In light of this Court’s explicit and unambiguous construction of the

“color of ... office” requirement in Willingham, petitioners’ attempt to

analogize that phrase to the “color of law” requirement of 42 U.S.C.

§ 1983 (Pet. Br. 13-14) is specious. Whatever the definition of that dis-

similar statutory language found in a dissimilar statutory provision, it

does not undermine this Court’s determination that, as used in Section

1442(a)(1), the “color of . . . office” requirement denotes a “causal nexus”

between the conduct in question and the federal officer’s direction or con-

trol of the person “acting under” his authority. Willingham, 395 U.S. at

409; Soper (No.1), 270 U.S. at 33.

Moreover, petitioners’ radical assertion that a “private

commercial actor ... cannot sensibly be said to act “under

color of [federal] office’” (Pet. Br. 9 (brackets in original))

would foreclose removal to federal contractors (“private

commercial actor[s]”) that assist federal officers in perform-

ing their duties or act at the express direction of federal offi-

cers. The lower courts have uniformly held that such con-

tractors are entitled to removal under Section 1442(a)(1). See

Br. of Defense Contractors et al. 7 n.6 (citing cases). The

Solicitor General largely agrees. See U.S. Br. 25. And if

those contractors may remove, then the “commercial” nature

of PMUSA’s business cannot, in itself, be any barrier to re-

moval. See also infra at 38.

Petitioners also make the blanket assertion that “a pri-

vate regulated party sued for conduct undertaken while acting

in compliance with federal regulation” is not entitled to re-

moval under Section 1442(a)(1). Pet. Br. 17. That is obvi-

ously incorrect. Such a party might, or might not, be “acting

under” a federal official—the mere fact that a party is regu-

lated cannot exc/ude it from the class of “persons” eligible to

remove under Section 1442(a)(1). Indeed, when amending

Section 1442(a)(1) in 1996, Congress expressly recognized

that the statute provides a federal forum for “important and

complex federal issues such as preemption.” H.R. Rep. No.

798, 104th Cong., 2d Sess., at 20 (1996); see also 142 Cong.

Rec. $6517, S6519 (June 19, 1996) (statement of Sen.

Grassley). Because preemption is not generally invoked as a

defense by the federal government or federal officials, this

statement is a clear indication that Section 1442(a)(1) extends

to private persons subject to federal regulation. Whether

such a person is acting under federal direction will necessar-

ily depend on the facts and circumstances of each case, as

averred in the notice of removal.

b. PMUSA Is Subject To The FTC’s

Direction And Control In Testing And

Disclosing Tar And Nicotine Yields

The court of appeals closely examined the allegations in

PMUSA’s Notice of Removal concerning the FTC’s lengthy

history of tobacco regulation. It also considered the exten-

sive documentary record supporting those allegations, and

concluded that the “record is filled with FTC announcements

of its policy as well as communications between the FTC and

the cigarette industry.” Pet. App. 13a. Surveying the “un-

precedented extent” to which the FTC involved itself with

the tobacco industry and low-tar cigarettes, the court of ap-

peals held that the FTC exercises “comprehensive, detailed

regulation” over the industry’s testing and marketing prac-

tices and that PMUSA was therefore “acting under” the FTC

in connection with the conduct alleged in petitioners’ com-

plaint. /d. at 8a. This conclusion is amply supported by the

undisputed factual allegations in PMUSA’s Notice of Re-

moval, which sets forth in detail the FTC’s stringent control

over PMUSA’s testing and disclosure of tar and nicotine

yields.

The FTC initially required PMUSA to stop disclosing tar

and nicotine yields in its advertising (Pet. App. 79a), then

authorized it to begin disclosing testing results substantiated

by the FTC Method (ibid.), and finally compelled it to in-

clude those results in all advertisements (id. at 85a). This is

exactly the type of “immediate direction [by] the national

government” (Tennessee v. Davis, 100 U.S. at 263) that can

support removal under Section !442(a)(1). PMUSA con-

ducts tar and nicotine testing of its cigarettes pursuant to a

delegation of FTC authority and using a methodology pre-

scribed by the FTC, and, under FTC compulsion, it discloses

those testing results in its advertisements and limits its use of

descriptors to statements substantiated by the FTC Method.

In conforming to those FTC directives, PMUSA is—under

the very definitions adopted by petitioners and the Solicitor

General—“acting under” a federal officer. See Pet. Br. 12

(defining “under” as “subject to the authority, direction, or

supervision of”) (internal quotation marks omitted); U.S. Br.

11 (“‘under’ indicates ... ‘[s]ubject to the guidance and in-

struction of””’) (brackets in original).

This conclusion is supported by cases, largely embraced

by petitioners (Pet. Br. 32-33), in which the lower courts

have upheld removal by government contractors subject to

stringent federal oversight. In Winters v. Diamond Shamrock

Chemical Co., 149 F.3d 387 (Sth Cir. 1998), for example, a

case relied upon by the court of appeals below, the court held

that manufacturers of the pesticide Agent Orange were au-

thorized to remove a state-law products liability suit under

Section 1442(a)(1) because the government provided “de-

tailed specifications concerning the make-up, packaging, and

delivery of Agent Orange, [and] the compulsion to provide

the product to the government’s specifications.” Jd. at 400.

The level of government control over the Agent Orange pro-

ducers is comparable to the government’s control over

PMUSA. Just as the government compels the manufacturers

of Agent Orange to produce their pesticide in a specific man-

ner and to utilize specific labeling, it requires PMUSA to test

its cigarettes subject to detailed technical specifications and

to disclose its cigarettes’ tar and nicotine yields in advertise-

ments.

The efforts of petitioners and the Solicitor General to

concoct a revisionist history of the FTC’s tobacco regulatory

regime are clearly flawed. As an initial matter, in attempting

to deny that the past fifty years of FTC tobacco regulation

ever took place, petitioners and the Solicitor General disre-

gard the averments in PMUSA’s Notice of Removal, which

were not disputed below by petitioners and are controlling

for purposes of this Court’s jurisdictional analysis. See Vir-

ginia v. Paul, 148 U.S. 107, 122 (1893); Symes, 286 US. at

515. Moreover, the arguments advanced by petitioners and

the Solicitor General fail on their own terms.

Petitioners contend, for example, that PMUSA’s disclo-

sure of tar and nicotine yields in its advertisements does not

occur under federal “direction or supervision” because the

1970 industry agreement requiring disclosure was entered

into on an ostensibly “voluntary” basis. Pet. Br. 39. But as

the court of appeals recognized, the “FTC effectively used its

coercive power to cause the tobacco companies to enter the

agreement” (Pet. App. 10a) and accepted that agreement only

after the tobacco industry had modified its initial proposal to

meet the FTC’s specific requirements. If the FTC had not

proposed a Trade Regulation Rule mandating the disclosure

of tar and nicotine yields, the major tobacco companies

would not have entered into the agreement, which was indis-

putably a byproduct of the FTC’s proposed rulemaking. In-

deed, just as a driver threatened by a police officer with the

issuance of a parking ticket cannot be said to have moved his

car voluntarily, PMUSA—threatened with the promulgation

of a rule mandating tar and nicotine disclosures—cannot be

said to have voluntarily assumed the burden of testing for and

disclosing tar and nicotine yields.

Furthermore, the FTC has closely monitored the indus-

try’s compliance with the obligations imposed by the 1970

agreement, and has brought suit against tobacco companies

that disclose testing results obtained through means other

than the FTC Method prescribed by the agreement. See, e.g.,

FTC v. Brown & Williamson Tobacco Corp., 778 F.2d 35, 43

(D.C. Cir. 1985) (holding that a tobacco company’s advertis-

ing that included tar and nicotine yields measured through a

test different than the FTC Method constituted a deceptive

trade practice under Section 5 of the FTCA).!! The ever-

Il Petitioners’ reliance (Br. at 40) upon Brown & Williamson to support

their assertion that the FTC has not compelled tobacco companies to dis-

close FTC Method results in their advertising is squarely refuted by the

procedural posture of the case—a suit brought by the FTC for the specific

purpose of preventing a tobacco company from disclosing tar and nico-

present threat of an enforcement action is a powerful means

of compelling PMUSA to comply with the FTC’s advertising

requirements. See Pet. App. lla (“The main difference be-

tween a formal rule and an agreement is that the FTC en-

forces the disclosure of the [FTC] Method’s results by bring-

ing an action against the company for deceptive advertising

rather than directly enforcing a regulation”).

Petitioners also make much of the fact that the FTC’s

regulation of the use of tar and nicotine descriptors suppos-

edly has been accomplished through consent orders with

other tobacco companies. In so arguing, however, petitioners

disregard the FTC’s 1967 policy statement, which unambi-

guously authorized the tobacco industry to make “statements

or representations of or relating to tar and nicotine content of

cigarettes where they are shown to be accurately and fully

substantiated” by testing under the FTC Method. J.A. 15 (in-

ternal quotation marks omitted).

Moreover, as former FTC Chairman Daniel Oliver ex-

plained in congressional testimony, the FTC utilized consent

orders, rather than rulemaking, in this area because they pro-

vided the most expeditious manner of regulating industry-

[Footnote continued from previous page]

tine yields generated by means other than the FTC Method. The court of

appeals determined that the FTC bore the burden of establishing that the

tobacco_company’s advertising practices were deceptive because it had

not promulgated its tar and nicotine disclosure requirements through a

Trade Regulation Rule. 778 F.2d at 45. But this burden allocation does

not alter the fact that the FTC possesses the authority—and in Brown &

Williamson it exercised that authority—to bring enforcement actions

against tobacco companies that fail to comply with the 1970 industry

agreement. Petitioners’ invocation (Br. at 41) of PMUSA’s 2002 petition

for FTC rulemaking is equally misplaced. In that petition, PMUSA ac-

knowledged that the FTC “require[s] the use of the [FTC] Method” for

measuring tar and nicotine yields (petition at 6), and merely asked the

FTC to consider whether modifications to its existing regulatory regime

were warranted in light of new scientific developments (id. at 5).

wide conduct. J.A. 115; cf NLRB v. Bell Aerospace Co., 416

U.S. 267, 294 (1974) (“[A]djudicated cases may and do...

serve as vehicles for the formulation of agency policies,

which are applied and announced therein”) (internal quota-

tion marks omitted). The FTC “discovered,” Chairman

Oliver testified, “that rulemaking takes a very long time,”

and that “it is more efficient to bring a single case against the

first offender in order to stop the practice before we go to

rulemaking.” J.A. 115. “In the case of the cigarette indus-

try,” the Chairman continued, “it is entirely reasonable to

suppose that one action against one cigarette company would

have an effect on all of them, and that you would not have to

make a rule.” /d. at 116-17.

Indeed, courts have repeatedly recognized that FTC con-

sent orders have regulatory effects that extend well beyond

the parties to the agreement. See, e.g., Gen. Motors Corp. v.

Abrams, 897 F.2d 34, 39 (2d Cir. 1990) (holding that FTC

consent orders can preempt state legislation); Ford Motor

Co. v. FTC, 547 F.2d 954, 959-61 (6th Cir. 1976) (holding

that the FTC must afford the same treatment to one competi-

tor that it has allowed to another competitor in an earlier con-

sent order). Petitioners’ lengthy discussion (Br. at 45) of

cases addressing the precedential value of FTC consent or-

ders is thus entirely beside the point. Whether or not the

consent orders into which the FTC entered with American

Brands and the American Tobacco Company are considered

binding precedent in third-party actions, they instruct the to-

bacco industry that the FTC considers the use of descriptors

to be nondeceptive—and will not initiate enforcement pro-

ceedings regarding such marketing practices—as long as the

descriptors are accompanied by tar and nicotine testing re-

sults under the FTC Method.

The Solicitor General further maintains that PMUSA is

not required to market “light” cigarettes and that “it does so

solely in furtherance of its own economic interest.” U.S. Br.

27. But the Solicitor General is answering the wrong ques-

tion. PMUSA has not argued, and the courts below did not

hold, that PMUSA was “acting under” the FTC in “market-

ing” its products. Rather, PMUSA has maintained, the courts

below held, and the undisputed evidence establishes, that

PMUSA was acting on the FTC’s behalf when it tested the

tar and nicotine yields of its cigarettes, and that PMUSA was

acting at the direction of the FTC when it disclosed the re-

sults of those tests (including when using FTC-approved de-

scriptors corresponding to the FTC Method results) to con-

sumers. That is all that is required to meet the “threshold”

requirement of Section 1442(a)(1) removal. !2

3. The Parade Of Horribles Imagined By

Petitioners And Their Amici Is Illusory

Whether this Court applies the “assisting” standard en-

dorsed by petitioners and the Solicitor General, or a “direc-

tion and control” test similar to that applied by the court of

appeals, the undisputed averments in the Notice of Removal

establish that PMUSA was “acting under” a federal officer in

its cigarette testing and in its dissemination of the testing re-

sults. Pursuant to the FTC’s policy of providing the public

with standardized information about cigarettes’ tar and nico-

tine yields, PMUSA conducts testing previously performed—

and delegated to it—by the FTC and, under legal compul-

sion, discloses the FTC Method results both to the FTC,

which reprints them as official government data, and to con-

12 This Court should scrutinize the Solicitor General’s contrary posi-

tron, and his attempted recharacterization of the FTC’s regulatory history,

with particular care because the Justice Department is currently engaged

in litigation with PMUSA and the other major cigarette manufacturers,

where one of the principal issues is the extent to which the FTC regulated

PMUSA’s use of tar and nicotine descriptors. See United States v. Philip

Morris USA, Inc., 449 F. Supp. 2d 1 (D.D.C. 2006) (enjoining the use of

“light” descriptors), appeal docketed, No. 06-5267 (D.C. Cir. Sept. 11,

2006) (stay granted pending appeal). Because of that ongoing litigation,

the Solicitor General can hardly be characterized as a disinterested party

in this case.

sumers. Because PMUSA is acting at the FTC’s behest, and

pursuant to its direction, a federal forum is warranted to

“permit[] a trial ... free from local ... prejudice” (Ma-

nypenny, 451 U.S. at 242) toward the FTC’s tobacco policies.

Both petitioners and the Solicitor General, however, de-

vote a significant portion of their briefs to suggesting that

authorizing PMUSA to remove this case would occasion a

flood of removals under Section 1442(a)(1), crippling the

federal courts and undermining state sovereignty. Pet. Br.

34-39; U.S. Br. 19-23. These assertions are decidedly over-

stated because the unique history of tobacco regulation sets

PMUSA apart from participants in other regulated industries

who, although perhaps closely regulated by the federal gov-

ernment, do not perform delegated federal responsibilities in

the same manner that PMUSA and other tobacco companies

do. See Pet. App. 18a (Gruender, J., concurring). Under the

auspices of the TITL, PMUSA is carrying out a testing pro-

gram that the FTC itself conducted for twenty years. Peti-

tioners identify no other industry where private companies

have been delegated a testing function that the government

itself previously performed and are compelled to disclose the

testing results to the government, which disseminates the

industry-generated data in official government publications.

See Br. of Public Citizen, Inc. et al. 20 (“it may have been

‘unprecedented’ for the FTC to involve itself in product test-

ing as it did with cigarettes”) (emphasis in original).

A narrow decision holding that this extraordinary testing

procedure—in combination with the stringent oversight the

FTC exercises over the tar and nicotine claims in tobacco ad-

vertising—affords PMUSA the ability to remove this case to

federal court would not extend the same removal right to

other regulated industries. No matter the degree of regula-

tory oversight, those industries would not be performing

delegated federal responsibilities unless the private industry

participants were conducting an official function on behalf of

the federal governmei.:. Petitioners’ discussion of the coal-

mining, motor vehicle, medical device, and pesticide indus-

tries is therefore completely beside the point (Pet. Br. 35) be-

cause petitioners do not suggest that private participants in

any of those industries perform delegated official responsi-

bilities previously conducted by the federal government (and,

to the extent that isolated examples do exist in other indus-

tries, the prevalence of this phenomenon would be far too

rare to foster the exponential growth in removal predicted by

petitioners and the Solicitor General).

B. PETITIONERS’ SUIT RELATES TO “ACT[S] UNDER

COLOR OF .. . OFFICE”

In order to establish that a suit pertains to “act/s] under

color of . . . office,” a private party seeking to remove under

Section 1442(a)(1) must demonstrate the existence of a

“causal nexus” between the conduct that the plaintiff chal-

lenges and the official authority under which the party was

acting. See Willingham, 395 U.S. at 409.

The causal nexus element of Section 1442(a)(1) is not at

issue here. Petitioners declined to seek review of the court of

appeals’ holding that PMUSA has established a causal nexus

between the conduct alleged in petitioners’ complaint and the

official authority under which PMUSA was acting—

choosing instead to frame the question presented solely in

terms of whether PMUSA was “acting under” a federal offi-

cer. See Pet. i. This Court, of course, does not ordinarily

review questions not presented in the petition. See /zumi

Seimitsu Kogyo Kabushiki Kaisha v. United States Philips

Corp., 510 U.S. 27, 31 (1993). Nor do petitioners address

the causal nexus element in their merits brief.

Were the Court nevertheless to reach the issue, it would

have little difficulty concluding that PMUSA has satisfied

the “causal nexus” requirement. Petitioners allege, for ex-

ample, that “consumers receive higher levels of tar and nico-

tine than the testing apparatus registers” and that PMUSA

was able to “control[{] the tar and nicotine delivery of Cam-

bridge Lights and Marlboro Lights cigarettes under machine

testing conditions apparently to achieve support for [its] rep-

resentations that [its] ... cigarettes are ‘light’ and contain

decreased tar and nicotine.” Pet. App. 64a. Petitioners thus

expressly challenge the FTC’s decision to require the tobacco

industry to use the FTC Method despite its inherent limita-

tions. Indeed, it is impossible for petitioners to do otherwise:

The FTC Method is the only authorized means for tobacco

companies to provide tar and nicotine yield information to

consumers (either numerically or as the basis for descriptors

such as “lights”). By challenging PMUSA’s descriptors, pe-

titioners are necessarily challenging the underlying testing

that PMUSA performs on behalf of and under the direction

and control of the FTC. See Pet. App. 16a (petitioners “chal-

lenge the FTC’s policy judgment that despite the failure of

the [FTC] Method to take into account ventilation holes or

channels, the test results should still be included in advertis-

ing”).!3

Petitioners’ assault on FTC-approved descriptors is a di-

rect attack upon the tobacco policy impiemented by the rele-

vant arm of the federal government for the past half century.

Because petitioners’ claims “directly implicate[] the en-

forcement and wisdom of the FTC’s tobacco policies” (Pet.

App. 15a), this suit creates the possibility that state-court

judges and juries who disagree with those policies will hold

PMUSA liable for conduct that the FTC has expressly au-

thorized or mandated. As petitioners acknowledge, Section

1442(a)(1) “safeguard|s] against state judicial action that . . .

could interfere with the enforcement and operation of na-

tional laws.” Pet. Br. 1; see also U.S. Br. 1 (“Permitting per-

13 The FTC is pursuing an ongoing inquiry into whether the FTC

Method should be modified or abandoned. 62 Fed. Reg. 48,158 (Sept.

12, 1997). As part of that process, the FTC is evaluating the same meth-

odological limitations in the testing procedure that petitioners raise in

their complaint. /d. at 48,159.

sons who are properly viewed as acting under a federal offi-

cer to remove state law actions to federal court ensures that

state courts will not interfere with the operations of the fed-

eral government”). That is precisely what could happen if

this case were remanded for a state court to sit in judgment

regarding the FTC’s direction and control of the tobacco in-

dustry.

C. PMUSA HAS A COLORABLE FEDERAL DEFENSE

The court of appeals held (Pet. App. 17a), and petition-

ers did not dispute below and do not contest here, that

PMUSA has a colorable preemption defense based either on

the express preemption provision of FCLAA or on the con-

flict between petitioners’ state-law consumer fraud claims

and the FTC’s policies regarding tar and nicotine testing and

advertising. Indeed, a number of courts have held that state-

law claims similar to petitioners’ are preempted. See, e.g.,

Brown v. Brown & Williamson Tobacco Corp., ___ F.3d

___, 2007 WL 470406 (Sth Cir. 2007) (holding that a virtu-

ally identical “lights” claim was preempted by FCLAA);

Good vy. Altria Group, Inc., 436 F. Supp. 2d 132 (D. Me.

2006), appeal docketed, No. 06-1965 (Ist Cir. June 23,

2006).

Petitioners note that PMUSA does not have a defense of

“official immunity” available to it. See Pet. Br. 19.° But as

this Court has explained, “removal under 28 U.S.C.

§ 1442(a) must be predicated upon averment cf a federal de-

fense,” Mesa, 489 U.S. at 139 (emphasis added), not any par-

ticular federal defense. It is sufficient that “a Federal ques-

tion or a claim to a Federal right is raised in the case, and

must be decided therein.” Tennessee v. Davis, 100 U.S. at

262; see also Mesa, 489 U.S. at 136. Indeed, when amend-

ing Section 1442(a)(1) in 1996, Congress identified the adju-

dication of preemption defenses in federal court as one of the

rationales for federal officer removal. See H.R. Rep. No.

798, 104th Cong., 2d Sess., at 20 (1996) (Section 1442(a)(1)

provides a federal forum for “important and complex federal

issues such as preemption”); 142 Cong. Rec. $6517, $6519

(June 19, 1996) (statement of Sen. Grassley) (same). This

Court has recognized that the same objectives that underpin

the preemption doctrine—the prevention of state interference

with federal policies (Hines v. Davidowitz, 312 U.S. 52, 67

(1941))—also animate federal officer removal, which “is re-

quired for the preservation of that supremacy which the Con-

Stitution gives to the general government by declaring that

the Constitution and laws of the United States made in pur-

suance thereof ... shall be the supreme laws of the land.”

Tennessee v. Davis, 100 U.S. at 266.

The merits of PMUSA’s defense of preemption, of

course, are for the district court to decide in the first instance.

See Acker, 527 U.S. at 432 (“requiring a ‘clearly sustainable

defense’ [at the removal stage] rather than a colorable de-

fense would defeat the purpose of the removal statute’’). This

case comes to the Court on extensive undisputed facts, as set

forth in the Notice of Removal That those facts would es-

tablish a “colorable” defense of federal preemption cannot

seriously be disputed, because other courts have held, on

summary judgment, that similar facts are sufficient to sustain

such a defense. See, e.g., Brown, «F.3d __, 2007 WL

470406. Indeed, PMUSA has moved for summary judgment

on that ground in the district court. That motion has not yet

been adjudicated, and thus the merits of the preemption de-

fense are not before the Court in this case. The on/y question

before the Court is whether the case was properly removed

under 28 U.S.C. § 1442(a)(1).

* * *

The question petitioners have asked this Court to answer

is “[w]hether a private actor doing no more than complying

with federal regulation is a ‘person acting under a federal of-

ficer’ for the purpose of 28 U.S.C. § 1442(a)(1).” Pet. i. The

answer to that question ts: “It depends.” In many cases, peti-

tioners’ question should be answered in the negative because

“mere” regulation does not satisfy the “acting under” re-

quirement. But it cannot be that petitioners’ question must

also be answered in the negative if the relationship between

the private actor and federal officials, as alleged in the notice

of removal, establishes that the defendant assisted, or acted at

the specific direction of, a federal officer. If that were the

case, then private parties would be effectively excluded from

the reach of the federal officer removal statute, contrary to

the text, history, and structure of the statute, as well as this

Court’s precedents.

In this case, PMUSA is doing much more than merely

“complying with federal regulation.” As the court of appeals

explained, “[t]hroughout the record, there [are] several indi-

cations that both developing a testing method and carrying

out the testing evidenced an unusually high level of govern-

mental participation and control.” Pet. App. 13a; see also

ibid. (“[t]he record establishes that [PMUSA|] acted under the

direction of a federal officer”). The sole question before the

Court is whether that same record—the undisputed aver-

ments of the Notice of Removal and the evidence submitted

in support thereof—shows that PMUSA was “acting under” a

federal officer in testing and disclosing the tar and nicotine

yields of its cigarettes, as the courts below held. That ques-

tion, which is the only one properly before the Court, should

be answered in the affirmative.

CONCLUSION

The judgment of the court of appeals should be affirmed. _

Respectfully submitted.

MURRAY R. GARNICK THEODORE B. OLSON

JAMES M. ROSENTHAL Counsel of Record

ARNOLD & PORTER LLP MARK A. PERRY

555 12th Street, N.W. AMIR C. TAYRANI

Washington, D.C. 20005 GIBSON, DUNN & CRUTCHER LLP

(202) 942-5000 1050 Connecticut Avenue, N.W.

Washington, D.C. 20036

KENNETH S, GELLER (202) 955-8500

MAYER, BROWN, ROWE &

MAw LLP

1909 K Street, N.W.

Washington, D.C. 20006

(202) 263-3000

Counsel fer Respondents

March 30, 2007

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