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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0251%3A09

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 2007
- **Citation:** 551 U.S. 142

## Text

Ws
~~ -
No. 05-1284
pe _________ ____ _ __ _ _________+f
IN THE

Supreme Court of the United States

LISA WATSON AND LORETTA LAWSON, INDIVIDUALLY
AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,
Petitioners,
V.

PHILIP MORRIS COMPANIES, INC., A CORPORATION;
AND PHILIP MORRIS, INCORPORATED, A CORPORATION,
Respondents.

On Writ of Certiorari
to the United States Court of Appeals
for the Eighth Circuit

REPLY BRIEF FOR PETITIONERS

STEVEN EUGENE CAULEY DAVID C. FREDERICK
JAMES ALLEN CARNEY Counsel of Record
MARCUS N. BOZEMAN MARK L. EVANS
CAULEY, BOWMAN, CARNEY KELLY P. DUNBAR

& WILLIAMS, PLLC KELLOGG, HUBER, HANSEN,
11311 Arcade Drive TODD, EVANS & FIGEL,
Suite 200 gman
Little Rock, Arkansas 72212 1615 M Street, N.W.
(501) 312-8500 Suite 400

Washington, D.C. 20036
(202) 326-7900

Counsel for Petitioners

April 18, 2007
SS

TABLE OF CONTENTS

Page
ee Fee I erent scncccciesscasenpsccsnicsetinessnmennnses ll
SN TITIITTTIITIY nists dine ssisiceschictnapeiitinadiiindadnaneniiienieiadunidedes 1
IEE sisi centiiatireansecnnathieniinintianishininninintpidtauinmssinapitiiidniieiie 2

I. PHILIP MORRIS’S “DELEGATED AUTHOR-
ITY” THEORY IS WITHOUT MERIT..............0......... 2

A. Petitioners’ Claims Do Not Challenge The
Cambridge Filter Method..........................:seeee0e000 2

B. Compliance With FTC Regulation Is Not An
Exercise Of “Delegated Authority” ................00+ 5

II]. PHILIP MORRIS’'S DEFENSE OF THE
EIGHTH CIRCUIT'S TEST IS UNAVAILING......... 13

~ TI. PHILIP MORRIS IS NOT SUBJECT TO COM-
PREHENSIVE AND DETAILED CONTROL......... 17
IN ceieichisciat inc ahnct aciiatiadaiitclertinigitinbindiitaes bitpdisinattinidebiipindhagd 20

li

TABLE OF AUTHORITIES
Page
CASES
Beatrice Foods Co. v. FTC, 540 F.2d 303 (7th Cir.

SED ascii eiichsetinabeniaheiebetabeipmieiiaii aah i ecaiaaliins 19
Blatchford v. Native Village of Noatak, 501 U.S. 775

SST wiiseisicacaliciiidense dipieidipintliebdeabbeanieiainhticilaincitiaignialacibistanadei 7
Brentwood Academy v. Tennessee Secondary Sch.

Athletic Ass'n, 531 U.S. 288 (2001).................00.008 5-6, 9
Brown v. Brown & Williamson Tobacco Corp.,

479 F.3d 383 (Sth Cir. 2007) 0.0... cccceeeeceeeeeeeeeeeeneneees 5
Caterpillar Inc. v. Lewis, 519 U.S. 61 (1996)...............00000 2
Caterpillar Inc. v. Williams, 482 U.S. 386 (1987) .......... 4,5
Chick Kam Choo v. Exxon Corp., 486 U.S. 140 (1988)....... 5
City of Greenwood v. Peacock, 384 U.S. 808 (1966)....13, 14
Davis v. South Carolina, 107 U.S. 597 (1883)............ 10, 13
FTC v. Brown & Williamson Tobacco Corp., 778 F.2d

SE GTI, TI sitesi nitetanrialetedaiahena baibiidiatedniieatatiababilind 18
FTC v. Mandel Bros., Inc., 359 U.S. 385 (1959) ............... 19
Gonzalez v. Oregon, 126 S. Ct. 904 (2006) 00.0.0... eee 15

International Primate Prot. League v. Adminis-
trators of Tulane Educ. Fund, 500 U.S. 72

(1991) ........ Svtndinntnigddmagdanepeuumedutginepetpadensitidanivantiitpeviindiann 12
Jefferson County v. Acker, 527 U.S. 423 (1999).................. 4
Johnson v. Wells, Fargo & Co., 98 F. 3 (C.C.N.D. Cal.

I A, MPUEE dnconnrnntantiiiensaisuaieniingsamacannddimsnnies 10, 11
Maryland v. Soper, 270 U.S. 9 (1926) 0.2.0... eeeeeeeeeee 10, 13

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316
SEITE -actcppcchsteseshiidncinvehinnesidideiaminighassiatadeidabiineisetdapaiieipiaibisaheibiiahaceie 16

ill

Paldrmic v. Altria Corporate Servs., Inc., 327 F.

I: Te IS I HI cittcnnteresscccccninctvdeecnencunstes 3
Papasan v. Allain, 478 U.S. 265 (1986) ..............:cccceeeeeeees 18
Polk County v. Dodson, 454 U.S. 312 (1981)........-.0-0+0--+ 8, 9
Public Citizen v. United States Dep't of Justice,

re es I piniiicichusitninicsiiinesiidintiniideisitibdiiaiitalnastiadindiia 13

Shook v. District of Columbia Fin. Responsibility &
Mgmt. Assistance Auth., 132 F.3d 775 (D.C. Cir.

SUTITEIE wictintndienideabetiadiusinellaandabdcobeciincensieinpahemssinialtnimnditisanaaiepnamihia )
Tennessee v. Davis, 100 U.S. 257 (1880) ........cceecseereeeenes 14
Trans Union Corp. v. FTC, 245 F.3d 809, on denial

of reh’g, 267 F.3d 1138 (D.C. Cir. 2001)...................0.. 19
United States v. E.l. du Pont d- Nemours & Co.,

ee aie MEP TUITIE sctectinsisitnictscxicunticiinitileiineihbbadtbihinieatabinlbenctaniel 19
United States v. Philip Morris Inc., 263 F. Supp. 2d

Se is SIE a tidisitescencntitnticdandiiainibiiemssdieiialiaiiiiniapitiaiesiiinns 3
United States Telecom Ass’n v. FCC, 359 F.3d 554

Das I i ita ll all 9
Virden v. Altria Group, Inc., 304 F. Supp. 2d 832

SRE "Wile Sts: SUEY cciseichdeinctebcceihcacelinebhaeaendeteibeiaesidiebeachiati 3
Willingham v. Morgan, 395 U.S. 402 (1969) .................... 12

ADMINISTRATIVE DECISIONS
In re Ed Hamilton Furs, Inc., 51 F.T.C. 186 (1954) ...19, 20

iv
STATUTES AND REGULATIONS
Act of Feb. 4, 1815, ch. 31, 3 Stat. 195 (Customs

TD iiskscciisiiatindibiiidibaieiintipiliniiitartiihpiinbbaiapiaiiiabinsidabmasiiaieinpniiel 11
Federal Trade Commission Act, 15 U.S.C. §§ 41

UT: Miicrrdecsinebiaditinniniapetabgniniaeiinecnmmeieimeteianddiial 9,11

Ba eae Se Giese Rissnuiuitciteiipenteniishteninanbincaninieniaiddides 9

er res Se iintiicciilsetinsinibdharidominsiinatccniinticaiiisdsisittetasiied )
Fur Products Labeling Act, 15 U.S.C. §§ 69 et seg. ......... 19
Toxic Substances Control Act, 15 U.S.C. § 2601(b)(1) .....10
ae ee ae canteen isciicibiinceicatbancidisdetdinantibilenipibilasibintisiteiais 7
es SED ssitenintentccnesensasesannsnees 1, 2, 4, 14, 15, 16
ee es Oe I D shenreagndiipictnicnsiancisinccnniintntencillnpheiiiibins 4
ee BE ansiciniiesincitddictnsaivitinietpacteanteidanneesitpuiiaimetadinsites 14
es Ue nisin onthiciaebicnatcrnainihdudatnepsiodacesiniaicisainticinieiainitn 18
a Pe Wh schcledtieniteisinltstadahedininintttetiiansinitiaciindicanenasainheiiaiin’ 9
LEGISLATIVE MATERIALS
H.R. Rep. No. 80-308 (1947) ...... SAAS OR ON TOON COST Re OF A 17
H.R. Rep. No. 104-798 (1996) ........ccssssssssssecsssessnneessneesseee 16
Strengthening the Cigarette Labeling Act, 112 Cong.

Se: Be IIIIEY ruin testindinibicesithiipunciatindiuitapeisinidiiuennphduigmnnsion 13

i le 13

\

ADMINISTRATIVE MATERIALS

Comments of Philip Morris Inc., et al., On the
Proposal Entitled FTC Cigarette Testing Method-

ology, FTC File No. P944509 (filed Feb. 5, 1998).....

Notice, Cigarette Testing: Request for Public

Comment, 62 Fed. Reg. 48,158 (1997)............c.ccceeeee

OTHER MATERIALS

John S. Applegate, The Perils of Unreasonable Risk:
Information, Regulatory Policy, and Toxic Sub-

stances Control, 91 Colum. L. Rev. 261 (1991)..........

Black’s Law Dictionary:

i I i a
A mere Ne, Een

Bradley C. Karkkainen, Information as Environ-
mental Regulation: TRI and Performance Bench-
marking, Precursor to a New Paradigm, 89 Geo.

Radi BIG GR ED mcoceccsecscsiiocsevesisnissiidetinsanenssensaeadinaiiaas

Laurence H. Tribe, American Constitutional Law

GGG, TEED cccevisinsctinstdvisiniicenstinitinnbiaiasadid alain

INTRODUCTION

Congress enacted the federal officer removal statute to
ensure that federal officers (and later agencies) would
have a means of removing to federal court cases brought
against them in state court. The primary purpose was to
provide a federal forum for immunity defenses that fed-
eral officers and those “acting under” them could assert.
As this Court’s cases establish, persons “acting under”
such officers or agencies are persons who aid or assist in
the performance of official functions. Under any reason-
able view, Philip Morris in its marketing and sale of ciga-
rettes is considerably far afield of the type of actor Con-
gress intended the statute to protect.

In its brief, Philip Morris largely abandons the compre-
hensive-control theory that it has advanced in numerous
cases in the lower courts and that it led the Eighth Circuit
below erroneously to embrace. That theory, which opened
up the statute to removals by scores of companies regu-
lated far more heavily than tobacco companies, finds no
support in this Court’s cases construing the federal officer
removal statute. Instead, Philip Morris now argues that
cigarette makers are unique not because of the degree of
governmental control over their operations, but because of
what they assert to be the historical happenstance that
the FTC for a time tested the tar and nicotine content of
cigarettes and then stopped doing so, imposing instead a
reporting requirement on cigarette makers. That new-
found theory, however, is no more persuasive than Philip
Morris’s previous arguments to obtain § 1442(a)(1)’s bene-
fits. It rests on mischaracterizations of the complaint, the
procedural effect to be given to its removal notice, the
facts underlying the FTC’s decision to stop testing ciga-
rettes for tar and nicotine, and the regulatory conse-
quences of the FTC’s actions. Philip Morris’s new theory
therefore should be rejected just as decisively as its for-
mer theory has now essentially béen discarded.

2

ARGUMENT

I. PHILIP MORRIS’S “DELEGATED AUTHORITY”
THEORY IS WITHOUT MERIT ;

Largely forsaking its defense of the Eighth Circuit’s
comprehensive-control test, Philip Morris asserts (at 26-
32) that it is “acting under” a federal officer for purposes
of 28 U.S.C. § 1442(a)(1) because, in testing the tar and
nicotine yields of its cigarettes, it exercises authority
“delegated” to it by the FTC. This theory — which reflects
a sea change in Philip Morris's position' — rests on two
flawed premises: first, that petitioners’ state-law claims
challenge Philip Morris’s cigarette-testing program; and,
second, that Philip Morris conducts the testing program
on behalf of, and by delegation of authority from, the FTC.

A. Petitioners’ Claims Do Not Challenge The
Cambridge Filter Method

Philip Morris concedes (at 42) that it is not “acting
under” the FTC in marketing and selling its light ciga-
rettes in compliance with FTC regulation. That conces-
sion should be dispositive here, because the claims that it
purported to remove relate solely to its marketing and
sale of light cigarettes.”

‘ Until it filed its brief on the merits in this Court, Philip Morris
consistently argued simply that federal officer removal is proper when-
ever “a defendant [is] sued for actions that were subject to the direc-
tion, control, and supervision of federal officials.” PM Br. in Opp. 10.
It accordingly offered no counterstatement of the Question Presented

‘th in the petition for a writ of certiorari. In its brief on the mer-
» ». -owever, Philip Morris attempts for the first time to reformulate
the yuestion Presented to fit its new “delegation” theory. See PM Br. i.
Having accepted petitioners’ formulation at the certiorari stage, Philip
Morris is not free to recast the issue before this Court to accommodate
its newly developed theory of the case: “Under this Court’s Rule 15.2, a
nonjurisdictional argument not raised in a respondent’s brief in opposi-
tion to a petition for a writ of certiorari may be deemed waived.”
Caterpillar Inc. v. Lewis, 519 U.S. 61, 75 n.13 (1996) (internal quota-
tion marks omitted).

. Philip Morris itself repeatedly acknowledged below that petition-
ers’ claims were focused on its marketing practices. See, e.g., PM C.A.

3

In accordance with its new theory of the case, however,
Philip Morris now insists that “[p]etitioners’ complaint is,
at its core, a direct attack upon the official tar and nico-
tine testing program that the FTC delegated to” Philip
Morris. PM Br. 22. But Philip Morris cannot manufac-
ture a right of removal simply by recharacterizing peti-
tioners’ claims to suit its new legal theory.

The essence of petitioners’ claims is that Philip Morris
intentionally designed its “light” cigarettes — by, among
other things, “modification of tobacco blend, weight, rod
length, and circumference,” “use of reconstituted tobacco
sheets and/or expanded tobacco,” and “increase of smoke
pH levels by chemical processing and additives” — to in-
crease.the nicotine and tar levels delivered to smokers,
while at the same time fraudulently marketing those
cigarettes as delivering less tar and nicotine than regular
cigarettes when actually smoked by consumers. Pet. App.
64a-65a (Am. Compl. 4 12(a), (c)); id. at 65a (Am. Compl.
§ 13). That Philip Morris’s fraudulent scheme involved,
in part, knowingly designing its cigarettes to trick a fea-
ture of the FTC’s regulatory regime — the Cambridge Fil-
ter Method — and then reporting those results (which
Philip Morris knew to be misleading) in marketing its
light cigarettes does not mean petitioners’ claims are “ul-
timately” a challenge to that regime. PM Br. 1.*

Br. 2 (plaintiffs’ complaint “challengfes} PM USA’s marketing of ‘light’
cigarettes”) (emphasis added); id. at 34 (“Plaintiffs’ complaint chal-
lenges PM USA’s marketing pursuant to the FTC's policies and direc-
tives.”) (emphasis added); id. at 35 (“the very conduct at issue” in this
case 1s the “alleged deceptive marketing of Lights”) (emphasis added).

* See, e.g., United States v. Philip Morris Inc., 263 F. Supp. 2d 72, 81
(D.D.C. 2003) (“The specific advertisements which the Government
claims were intentionally misleading . . . were certainly not mandated
by the FTC.”); Paldrmic v. Altria Corporate Servus., Inc., 327 F. Supp.
2d 959, 966-67 (E.D. Wis. 2004) (design and manufacture of Marlboro
Lights were “acts that most assuredly were not performed under the
direct and detailed control of the FTC”); Virden v. Altria Group, Inc.,
304 F. Supp. 2d 832, 846 (N.D. W. Va. 2004) (“[T}]he FTC . . . did not
direct [Philip Morris] to ‘trick’ the testing procedure, and did not re-
quire [Philip Morris] to disseminate misleading information.”).

4

Philip Morris cannot evade that conclusion by contend-
ing (at 21-22) that the Court must “credit” the company’s
“theory of the case.” Though the removing defendant is
entitled to craft its own colorable argument for federal
removal, the plaintiff remains “master of [its own] claim,”
and the defendant is not free to recast the complaint to
suit its removal theory. Caterpillar Inc. v. Williams, 482
U.S. 386, 392, 394 (1987) (rejecting defendant’s claim that
plaintiffs’ “state-law contract claims [were] in reality com-
plevely preempted” federal-law claims) (emphasis added).
Were it otherwise, any federally regulated entity with a
plausible preemption defense could remove to federal
court simply by asserting that the “core” of the plaintiff’s
case is a challenge to a federal regulatory regime.‘

In all events, Philip Morris's attempt to recast petition-
ers’ state-law claims as a challenge to the Cambridge Fil-
ter Method is ultimately beside the point. Even if this
case were “about” nothing more than the Cambridge Fil-
ter Method, Philip Morris would have no right to removal
under § 1442(a)({1). In Philip Morris’s view of the case, it

. Contrary to Philip Morris’s assertion, nothing in Jefferson County
v. Acker, 527 U.S. 423 (1999), requires this Court to credit Philip Mor-
ris’s revisionist reading of petitioners’ claims. At issue in Acker was
whether two federal judges could remove to federal court a state-court
suit for the collection of a county license tax imposed, in the judges’
view, on the performance of their federal judicial duties and therefore
in violation of the intergovernmental tax immunity doctrine. Unlike
Philip Morris, the judges in Acker were self-evidently within the class
of federal judicial officers entitled to removal under 28 U.S.C.
§ 1442(a)(3). See id. at 432. The question was whether there was a
causal connection between the tax-collection suit and the judges’ offi-
cial action sufficient to establish that the suit was “for any act under
color of office” within the meaning of § 1442(a)(3). Because that issue
necessarily merged with the merits of the judges’ defense, and because
all that is required of federal officers for purposes of removal is a “col-
orable defense,” not-“an airtight case on the merits,” the Court ac-
cepted the judges’ “theory of the case” on the merits for purposes of its
jurisdictional] inquiry. /d. The alternative would have required the
Court “to decide the merits of this case” in order to resolve the removal
issue. Jd There is no similar reason here to credit Philip Morris's re-
characterization of petitioners’ claims.

5

was compelled by regulatory edict to use the Cambridge
Filter Method as part of a comprehensive regime govern-
ing the marketing and sale of cigarettes. See PM Br. 1-10.
But see infra pp. 18-19. Even if its theory is presumed to
be true at this stage in the litigation, that theory merely
sets up a preemption defense that its compliance with the
strictures of the federal regime precludes state-law claims
based on that compliance. See, e.g., Brown v. Brown &
Williamson Tobacco Corp., 479 F.3d 383, 392-93 (5th Cir.
2007). But this Court’s cases make clear that a preemp-
tion defense is not a basis for removal. See Caterpillar,
482 U.S. at 393; Chick Kam Choo v. Exxon Corp., 486 U.S.
140, 149-50 (1988).

Finally, Philip Morris’s claim (at 2, 12, 22) that this
Court must accept as true the factual averments in its
removal petition is of no practical consequence. Petition-
ers here challenge not the facts on which Philip Morris
relies but the legal conclusions it seeks to draw from those
facts. See Pet. Br. 44-48. No principle of law requires this
Court to accept for purposes of removal the legal conclu-
sions or assumptions embodied in a defendant's removal
petition.

B. Compliance With FTC Regulation Is Not An

Exercise Of “Delegated Authority” |

The federal officer removal statute protects federal offi-
cers and agencies in their enforcement of the law and offi-
cial functions. It does not afford a removal right to regu-
lated entities complying with federal law. See Pet. Br. 23-
27. Philip Morris’s contrary approach turns the statute’s
purposes upside down, by giving a right of removal to
private commercial actors (like Philip Morris) that are
the objects of, rather than participants in, federal law
enforcement. See id. at 23-24. Distinguishing between
compliance with and enforcement of federal regulation is
necessary to avoid a bizarre interpretation of the “acting
under” clause that would “convert opponents into virtual
agents.” Brentwood Academy v. Tennessee Secondary Sch.

6

Athletic Ass’n, 531 U.S. 288, 303-04 (2001); see Pet. Br. 24-
25.

Philip Morris does not confront these concerns head-on.
Instead, it tries to clothe itself in the mantle of law
enforcement by depicting its cigarette-testing obligation
as a “delegation” of authority from the FTC. Philip Mor-
ris's theory is that it conducts testing activities as an
agent of the federal government and is therefore entitled
to the protections of federal officer removal when it is
sued in state court for acts committed in its agency capac-
ity. The suit in this case, of course, challenges Philip
Morris’s marketing and sale of light cigarettes, not its
testing of those cigarettes. But, even if Philip Morris
could permissibly recast petitioners’ claims as attacks on
the cigarette-testing regime, its characterization of its role
in that regime as a delegated federal law-enforcement of-
ficer, as opposed to simply an object of federal regulation,
is both implausible and baseless.

1. Philip Morris’s own factual averments do not estab-
lish “delegation” of authority by the FTC. Crediting Philip
Morris's averments in full, the facts are that, in the 1980s,
the FTC restructured its regulation of the tobacco in-
dustry by compelling tobacco companies, rather than the
FTC, to bear the costs of cigarette testing. That restruc-
turing concerned the 1970 voluntary agreement, which, in
Philip Morris’s view, was the pillar of the FTC’s regu-
lation of light cigarettes. See PM Br. 8 (arguing that “the
FTC has strictly policed [the terms of the 1970 agree-
ment]” to ensure compliance). Specifically, in the 1980s,
the 1970 pact was amended to require tobacco-company
testing, to allow the FTC access to industry testing facili-
ties, and to “obligat[e]” tobacco companies to use “the ‘tar’
and nicotine ratings” generated by such testing in the
companies’ “cigarette advertising.” PM C.A. App. 654-57;
see PM Br. 30 (“the FTC ordered the industry to instead
perform the testing (under the FTC’s control)”). Despite
that shift in FTC policy — from conducting tests itself to
requiring the industry to conduct the tests — the testing

7

requirement (as a condition for marketing and selling
light cigarettes and assuming for the sake of argument
that there was such a requirement) remained fundamen-
tally an incident of federal regulation.°

This case — on Philip Morris’s own theory — therefore
bears all the hallmarks of an agency imposing regulatory
requirements on a regulated entity. Despite more than 20
references to “delegation” and “delegated authority” in its
brief, Philip Morris points to no document, rule, policy
statement, regulation, or any other evidence demonstrat-
ing that the FTC in fact delegated (or intended to dele-
gate) its statutory authority to the tobacco industry. In
fact, nothing in the public record suggests that the FTC
ever contemplated any such delegation of authority. To
support its bald assertion, Philip Morris points only to a
simple sequence of events: first the agency did the testing
of cigarettes; then the agency halted its own testing ac-
tivities and required the industry to perform the testing.
From that bare chronology Philip Morris infers that the
FTC necessarily “delegated” its testing authority to the
industry. The inference is unwarranted. Philip Morris’s
“delegation” theory is “entirely a creature of [its] own in-
vention.” Blatchford v. Native Village of Noatak, 501 U.S.
775, 785-86 (1991) (rejecting the “strange notion” that 28
U.S.C. § 1362 represents a “delegation” to Indian tribes of
federal exemption from state sovereign immunity where
nothing in the statute or case law “mention{ed] [the]
word” “‘delegation’”).

° Evidence submitted by Philip Morris, for example, makes clear
that the FTC thought it was doing nothing unusual in closing its labo-
ratory and relying on regulation to compel the industry to conduct the
testing. William C. MacLeod, then-director of the Bureau of Consumer
Protection, responded to congressional concern vhat the FTC had
elected to rely on tobacco companies to test by pointing out that “[i]t is
generally the case in the regulation of measurements of performance
and constituent standards that the Government leaves it to the indus-
try with appropriate checks and balances upon the performance that
the industry reports.” JA 99 (emphasis added).

8

The facts alleged by Philip Morris evince none of the or-
dinary indicia of delegation. Delegation is “(t]he act of
entrusting another with authority or empowering another
to act as an agent or representative.” Black’s Law Dic-
tionary 459 (8th ed. 2004) (emphases added). That stan-
dard is not remotely met here.

To begin with, Philip Morris did not need the FTC’s au-
thorization to test its own products. Indeed, the cigarette
companies had long been conducting tar and nicotine test-
ing themselves without any official authorization. See PM
C.A. App. 689 (during the operation of the FTC labora-
tory, TITL was testing as well). The tobacco companies’
untrustworthiness in performing their own testing and
reporting of accurate results had led the FTC to begin its
testing program in 1967.° That private, commercial test-
ing — which predated the FTC program — was done to
advance the tobacco companies’ profits, not to promote the
FTC’s regulatory agenda or the public interest.

Moreover, Philip Morris was not “exercising power pos-
sessed by virtue of... law” or “clothed with the authority
of .. . law” in testing its own cigarettes and providing the
FTC with the results. Polk County v. Dodson, 454 U.S.
312, 317-18 (1981) (internal quotation marks omitted).
The FTC certainly took no formal or informal action ex-
pressly endowing the industry with the agency’s authority
or responsibility. Nor did it empower Philip Morris to
act as its agent in testing cigarettes in compliance with

® When it announced the ending of its testing program as a cost-
saving measure, the FTC explained in congressional testimony that it
viewed market forces (tobacco companies reporting their rivals’ dishon-
est test results), random checks by FTC inspectors of the TITL labora-
tory, and occasional alternative tests on cigarettes at a different gov-
ernment laboratory to be suitable checks on the cigarette-testing proc-
ess to ensure accuracy in the reporting of tar and nicotine levels. See
JA 100-03. The FTC thus sought to obtain the same regulatory effects
— true and accurate information about tar and nicotine content —
through a different use of government resources. That change in
regulatory strategy. however, in no way constituted a “delegation” of
authority.

9

federal regulation. On the contrary, as a regulated com-
mercial actor with interests “characteristically” antago-
nistic to those of the regulatory agency, id. at 318-19,
Philip Morris was an “opponent,” not a “virtual agent,” of
the FTC. Brentwood Academy, 531 U.S. at 303-04.’

2. Philip Morris’s alternative theory of being a “contrac-
tor” with the FTC has no merit. In an alternate formula-
tion, Philip Morris says (at 31) that the FTC “contracted
out its testing obligations” to the tobacco companies. But
Philip Morris has pointed to no actual contract, and there
is none. The FTC never solicited bids for conducting ciga-
rette testing on its behalf, never awarded any contract to
perform such testing, and never compensated the tobacco
companies for conducting the tests. Yet these are pre-
cisely the steps a government agency would be expected to
take if it wished to “contract out” a service. See 48 C.F.R.
Pt. 1 (Federal Acquisition Regulations). Instead, the FTC,
exercising its regulatory authority under the FTC Act,
compelled tobacco companies to test their products and to
disclose those results to the Commission. See PM Br. 14
(citing court of appeals’ holding that FTC “requires the
cigarette manufacturers to conduct the testing”); see also
15 U.S.C. § 46(a) (authorzing FTC “[tjo gather and com-
pile information” from regulated entities); id. § 46(b) (au-
thorizing FTC to require regulated entities “to file with
the Commission . . . annual or special . . . reports”). Even
on Philip Morris’s testing theory, this case is about an

7 It is doubtful that the FTC couid lawfully have “delegated avthor-
ity to test cigarettes” to tobacco companies, as Philip Morris insists
it did (at 31). An agency ordinarily may not, absent express congres-
sional authorization, delegate official tasks to outside parties. See
United States Telecom Ass'n v. FCC, 359 F.3d 554, 565-66 (D.C. Cir.
2004); Shook v. District of Columbia Fin. Responsibility & Mgmt.
Assistance Auth., 132 F.3d 775, 783-84 & n.6 (D.C. Cir. 1998). Philip
Morris points to no congressional statute expressly authorizing such a
delegation.

ae 10

agency's exercise a regulatory authority, not a contract-
ing out of services.®

3. Philip Morris’s delegation theory finds no support in
this Court’s cases. Philip Morris’s novel theory of delega-
tion by regulation is foreign to the federal officer removal
statute. A clear difference exists between the soldier in
Davis v. South Carolina, 107 U.S. 597 (1883), and the
chauffeur in Maryland v. Soper, 270 U.S. 9 (1926), on the
one hand, and Philip Morris on the other: the soldier and
chauffeur were actively participating in enforcing the fed-
eral revenue laws, whereas Philip Morris, in conducting
its testing activities, is complying with regulatory re-
quirements as an object of federal regulation. Nothing in
the text, history, or purposes of the federal officer removal
statute suggests that it was meant to benefit those who
merely comply with, as opposed to those who assist in en-
forcing, federal regulation.

Courts long ago rejected the concept that private actors
could remove on the theory that, in complying with fed-
eral regulation, they were assisting federal officers. See
Johnson v. Wells, Fargo & Co., 98 F. 3, 7-8 (C.C.N.D. Cal.

* The FTC is hardly alone in requiring regulated entities to perform
testing. For example, “[bjoth FIFRA and TSCA ... permit EPA to
require the manufacturer or processor of an existing chemical to un-
dertake testing at its own expense covering the entire range of infor-
mation relevant to [an] unreasonable risk determination.” John S.
Applegate, The Perils of Unreasonable Risk: Information, Regulatory
Policy, and Toxic Substances Control, 91 Colum. L. Rev. 261, 312
(1991). The TSCA testing provisions were adopted to avoid burdening
the government with the costs of testing. See 15 U.S.C. § 2601(b)(1).
Private testing, moreover, supplements the EPA’s own research and
testing of chemicals, undertaken “to avoid the bias that can affect pri-
vately produced data.” Applegate, 91 Colum. L. Rev. at 306; see also
Bradley C. Karkkainen, /nformation as Environmental Regulation:
TRI and Performance Benchmarking, Precursor to a New Paradigm, 89
Geo. L.J. 257, 265-(2001) (noting that, in addition to authority to re-
quire manufactures to test new chemicals, “EPA itself screens” chemi-
cals each year). Regulatory regimes that combine public and private
testing obligations are not unique to the EPA. See Public Citizen Br.
20-22 (discussing FDA, USDA, and NHTSA testing).

11

1899) (No. 12739) (a regulated common carrier, though
subject to federal tariff regulations, was not “acting un-
der” a federal revenue officer when it refused, under the
authority of those regulations, to transport a tendered
package that lacked a required revenue stamp). Likewise,
Philip Morris does not assist in enforcing the FTC Act
when it merely complies with what Philip Morris claims
to be FTC-imposed testing obligations; rather, it is a regu-
lated party that, like the carrier in Wells Fargo, is simply

“brought within the range” of a federal regulatory regime.
Id.

Philip Morris maintains that, “[a]s an historical matter,
PMUSA’s delegated responsibility for testing . . . is no dif-
ferent from a private individual’s delegated responsibility
to examine imported goods to determine whether they had
been shipped from England in violation of the Customs
Act of 1815.” PM Br. 30. But that claim fails to account
for the essential difference between regulated entities
(which comply with federal law) and federal officers and
their agents (who enforce federal law). Under Philip Mor-
ris’s rendition of the statute, shippers obliged to comply
with the Custom Act of 1815 would as a class have been
entitled to removal. Yet that notion has no basis in the
historical purpose of the statute, which was to safeguard
those charged with enforcing unpopular federal laws ~
against regulated entities from harassing suits brought by
those regulated entities. See Pet. Br. 17-18. Philip Morris
cites no evidence that Congress intended to extend a bene-
fit of removal to the regulated entities themselves.

Nor does such a view make historical sense: the animus
directed at those enforcing federal law would not logically
be directed at regulated entities complying with federal
regulation. See id. at 18. Indeed, it is telling that Philip
Morris makes no serious effort to explain how regional
animus against enforcement of the FTC Act could be

12

directed against it, such that it needs the protection of a
federal forum.°

4. Philip Morris’s novel limiting principle is self-serving
and wrong. Recognizing the breadth of the Eighth Cir-
cuit’s comprehensive-control test, Philip Morris proposes a
limitation that, it posits, only tobacco companies can
meet: its delegated-authority theory applies, Philip Mor-
ris says, only because “the government itself previously
performed ... the testing.” PM Br. 43 (emphasis added).
Regardless of whether such a limitation would restrict
removal by regulated entities in other industries, the his-
torical sequence of testing activities does not transform
this case from one of regulatory compliance into one of
delegated authority.” The essential relationship between
Philip Morris and the FTC remains that of regulating
agency and regulated entity — a relationship that is
manifestly insufficient to support federal officer removal.
See supra pp. 10-11.

Beyond those problems, Philip Morris’s proposed stan-
dard would lead to absurd results. It would mean, for ex-
ample, that, if the FTC had opened its laboratory after it
had imposed a testing requirement on tobacco companies,
Philip Morris would lack a basis for removal, even though
the relevant conduct — Philip Morris’s testing, market-
ing, and sale of light cigarettes — would have been the
same regardless of the timeline. It would also mean that
a federal agency with a history of public testing — such as

® Philip Morris properly concedes (at 46) that it cannot claim the
protections of official immunity. Because a core purpose of the federal
officer removal statute is to afford a federal forum for resolution of
immunity defenses, see Willingham v. Morgan, 395 U.S. 402, 407
(1969); International Primate Protection League v. Administrators of
Tulane Educ. Fund, 500 U.S. 72, 86-87 (1991), Philip Morris's conceded
inability to invoke that defense reinforces the conclusion that it is not
within the class entitled to removal.

© Philip Morris's historical characterization is also wrong: tobacco
companies did not start testing after the FTC closed its laboratory;
they had been doing their own testing all along. See PM C.A. App. 689.

13

the EPA — would extend a right of federal officer removal]
to any entity on which it subsequently imposed testing
requirements.

In addition, making dispositive the fact that the FTC it-
self tested cigarettes would result in the perverse outcome
that an industry uniquely distrusted by a federal agency
would have a claim to federal officer removal precisely be-
cause of that distrust. The FTC opened its own laboratory
because it considered it “highly undesirable to allow ciga-
rette manufacturers to use tar and nicotine data in ad-
vertising obtained from the manufacturers’ own labora-
tories.” JA 153-54; see also Strengthening the Cigarette
Labeling Act, 112 Cong. Rec. 17270, 17274 (1966) (quoting
letter from FTC chairman expressing concern “that the
manufacturers will publish misleading figures” and rec-
ommending that “products be tested by a central labora-
tory”). The FTC concluded “that the past record of ciga-
rette manufacturers in matters related to false and mis-
leading advertising makes reliance on their good faith
alone .. . highly inadvisable.” JA 156. Because the FTC
tested cigarettes out of a distrust of tobacco companies
before imposing the testing obligation on the regulated
entities themselves, Philip Morris views itself as entitled
to a statutory benefit not available to any other regulated
industry. See PM Br. 43. This Court should reject an in-
terpretation of the statute that produces such a bizarre
outcome. Cf. Public Citizen v. United States Dept of
Justice, 491 U.S. 440, 454 (1989) (rejecting reading of
statute that would “compel an odd result”) (internal quo-
tation marks omitted).

It. PHILIP MORRIS’S DEFENSE OF THE EIGHTH
CIRCUIT’S TEST IS UNAVAILING

The federal officer removal statute protects private par-
ties only when they are sued for acts committed while
aiding or assisting federal officers in the performance of —
their official duties. See City of Greenwood v. Peacock,
384 U.S. 808 (1966); Maryland v. Soper, supra; Davis
v. South Carolina, supra. Contrary to the Eighth Circuit's

14

approach, the statute does not extend a nght of re-
moval to private commercial actors on the basis of their
compliance with “comprehensive and detailed” federal
regulation.

Philip Morris offers only a half-hearted defense (at 33-
36) of the Eighth Circuit’s comprehensive-control test.
First, Philip Morris claims that this Court has never
defined the “outer bounds” of the “acting under” clause:
“Although the Court’s precedents indicate that aiding or
assisting a federal officer is si , ficient to satisfy the ‘acting
under’ standard, they do not establish that the provision
of aid or assistance is necessary to meet that require-
ment.” Jd. at 33. But Philip Morris overlooks Peacock,
in which this Court held that removal under 28 U.S.C.
§ 1443(2) is limited to instances in which a private actor is
“authorized to act with or for [federal officers or agents] in
affirmatively executing duties under . . . federal law.” 384
U.S. at 824; see Pet. Br. 22-23; U.S. Br. 11-16. The
Court’s analysis in Peacock applies with added force to
§ 1442(a)(1). If the civil-rights removal statute’s implicit
“acting under” clause restricts private-party removal to
those who aid or assist a federal officer, the federal officer
removal statute’s explicit “acting under” clause surely
embodies the same restriction. That conclusion is rein-
forced by the Peacock Court’s reliance on the history of the
federal officer removal statute, in which it found ample
support for an “aiding or assisting” restriction on removal
by private parties. See 384 U.S. at 820 n.17.

Second, Philip Morris asserts, relying on a snippet of
language drawn out of context from Tennessee v. Davis,
100 U.S. 257 (1880), that removal is proper whenever “a
private party acts at the direction of a federal officer.” PM
Br. 33-34. In Tennessee v. Davis, this Court upheld the
constitutionality of the removal statute as applied to a
federal officer engaged in the discharge of his law-
enforcement duties as a deputy collector of internal reve-
nue. See 100 U.S. at 260-63; id. at 263 (discussing in-
terest in protecting federal “officers and agents”). Philip

15

Morris claims that the decision points to a ground for re-
moval in any case in which a private party claims to have
acted “under the immediate direction of the national gov-
ernment, and in obedience to its laws.” PM Br. 33 (inter-
nal quotation marks and emphases omitted). That asser-
tion grossly misapprehends this Court’s holding and as-
cribes a historically inaccurate purpose to the statute. It
confuses the role of federal officer removal — which is lim-
ited to federal officers and those assisting them in enforc-
ing federal law — and the defense of preemption — which
is more broadly available to private regulated parties
based on compliance with federal directives. See Pet. Br.
17-18, 30-31.

Third, Philip Morris tries to put a more favorable spin
(at 34) on the definitions of “acting under” cited by peti-
tioners and the United States. But those definitions con-
firm what is clear from the adjoining “color of . . . office”
clause and the lineage of the statute — namely, that a
private party acts under a federal officer in assisting the
officer as subordinate in performing official duties. See,
e.g., Black’s Law Dictionary 1695 (4th ed. 1968) (“under”
is “[slJometimes used in its literal sense of below in posi-
tion, beneath, but more frequently in its secondary mean-
ing of ‘inferior’ or ‘subordinate’”). A contrary reading of
“under,” which would significantly expand fedéral juris-
diction by affording a right of removal to private entities
merely because they are subject to federal regulation, is
inconsistent with settled canons of interpretation. See
Pet. Br. 27 & n.9; see also Gonzalez v. Oregon, 126 S. Ct.
904, 925 (2006) (“{[Bjackground principles of our federal
system ... belie the notion that Congress would use . .
an obscure grant of authority to regulate areas tradition-
ally supervised by the States’ police power.”).

Fourth, Philip Morris seeks support for a comprehensive-
control test in the legislative history of the 1996 amend-
ment to § 1442(a)(1): a reference to “preemption” in a
House report, says Philip Morris (at 36), is “clear indica-
tion that Section 1442(a)(1) extends to private persons

16

subject to federal regulation.” The text of that House re-
port, however, makes clear that Congress's concern was
with the removal right of federal agencies, not private
regulated commercial actors: “The result of these deci-
sions has been that federal agencies have had to defend
themselves in state court, despite important and complex
federal issues such as preemption and sovereign immu-
nity.” H.R. Rep. No. 104-798, at 20 (1996) (emphasis
added). The notion that Congress must have been refer-
ring to private actors because federal agencies do not in-
voke preemption defenses is wrong: first, the quoted sen-
tence specifically refers to “federal agencies,” not to pri-
vate parties; second, the idea that a federal officer or
agency would invoke the supremacy of federal law as a
defense against application of state law is hardly novel."'

Fifth, Philip Morris analogizes (at 38) to cases involving
government contractors. But the fact that some courts
have allowed government contractors to remove under
§ 1442(a)(1) says nothing about whether a private actor
that lacks a contractual relationship with the govern-
ment and is merely an object of federal regulation may
do the same. Those courts have reasoned that a gov-
ernment contractor may be deemed a de facto federal
employee in certain circumstances and may have a ground
for removal when sued for acts performed in that role
and under the government’s control and supervision. See
Pet. Br. 32-33.'2 That analysis, if sound, might in some

"! See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 426-28 (1819);
Laurence H. Tribe. American Constitutional Law § 6-30, at 511 (2d ed.
1988) (“state attempts to regulate or tax entities with some special link
to the federal government” raise issues of “federal preemption”).

12 Philip Morris indefensibly imputes to petitioners, by means of a
cropped quotation, a view that petitioners plainly were ascribing to
those courts that have allowed removal by government contractors.
Philip Morris says the following. quoting from our opening brief: “Ac-
cording to petitioners, removal is appropriate where ‘federal control
and oversight ... is substantial and the tasks being performed are
those that the government might otherwise perform itself.” PM Br.
26. This is what the sentence actually said (with the omitted portion

17

circumstances be reconciled with the text, history, and
purposes of the statute. See id. at 33; see also H.R. Rep.
No. 80-308, at A134 (1947). But Philip Morris cannot
sensibly be thought of as a de facto employee of the fed-
eral government based on its compliance with regulatory
obligations. Philip Morris is not on the government’s
payroll, is not exercising governmental authority, and can
point to no contract from which a government-contractor
defense might arise. Rather, Philip Morris is doing no
more than complying with regulatory duties for the pur-
pose of participating in commercial activity — namely, the
marketing and selling of light cigarettes. The government-
contractor cases therefore offer no support for Philip Mor-
ris’s removal theory.

Ill. PHILIP MORRIS IS NOT SUBJECT TO COM-
PREHENSIVE AND DETAILED CONTROL

Petitioners and their amici have shown that Philip
Morris is not entitled to removal even under a compre-
hensive-and-detailed-control test. See Pet. Br. 39-48; U.S.
Br. 2-5, 20-21; Public Citizen Br. 17-20; Campaign for
Tobacco-Free Kids Br. 20-25.

At the threshold, Philip Morris responds that “petition-
ers ... disregard the averments in PMUSA’s Notice of
Removal, which . . . are controlling for purposes of this~
Court’s jurisdictional analysis.” PM Br. 38. But petition-
ers do not quarrel here with the facts — e.g., whether the
FTC adopted a consent order with American Brands in
1971. They dispute only the legal conclusions that Philip
Morris seeks to draw from those facts — e.g., whether a

italicized): “Those /government-contractor] decisions rest on the view
that a government contractor may be deemed an employee of the federal
government when federal control and oversight of the contractor is sub-
stantial and the tasks being performed are those that the government
might otherwise perform itself.” Pet. Br. 32-33. To be clear, petition-
ers acknowledge but do not here endorse the lower court decisions per-
mitting federal officer removal by government contractors. Nor need
this Court reach the question in this case, because Philip Morris can-
not legitimately claim the status of a government contractor.

18

consent order has the effect of regulating on an industry-
wide basis. This Court is “not bound to accept as true a
legal conclusion couched as a factual allegation.” Papasan
v. Allain, 478 U.S. 265, 286 (1986).

Three points establish that the FTC’s regulation of light
cigarettes is anything but comprehensive. First, Philip
Morris does not dispute that, although the FTC has broad
authority to adopt trade regulation rules, it has never
promulgated a single rule governing cigarettes. See 16
C.F.R. Pt. 408; Pet. Br. 39-40. And, as FTC v. Brown &
Williamson Tobacco Corp., 778 F.2d 35 (D.C. Cir. 1985),
established, the FTC was not even authorized to require
the Cambridge Filter Method. At best, Philip Morris has
shown that the FTC adopted an informal policy of not
pursuing enforcement actions against companies that
make tar and nicotine disclosures. If that is the standard
for “comprehensive” regulation, then it is hard to imagine
a federally regulated entity that would not be entitled to
remove under the federal officer removal statute. See Pet.
Br. 34-36. -

In response, Philip Morris takes issue (at 39 n.11) with
petitioners’ reading of Brown & Williamson. But the D.C.
Circuit was clear that it did not want to “enshrine the cur-
rent FTC system as the sole legitimate testing method”
because “it was not passed [as a trade regulation rule]
pursuant to section 18 of the FTC Act.” 778 F.2d at 45.
And Philip Morris’s record evidence is to the same effect:
“In the litigation that arose from the Barclay cigarette is-
sue of a few years ago .. . [t]he answer that the courts
gave was [the FTC] cannot force a company to use nor can
[the FTC] approve in advance the kind of testing a com-
pany uses.” PM C.A. App. 329.

Second, the FTC itself has determined that there are no
regulatory definitions of “light” and “low tar,” thereby un-
dermining important parts of respondents’ claims. See
Notice, Cigarette Testing: Request for Public Comment, 62
Fed. Reg. 48,158, 48,163 (1997); Pet. Br. 40-41. Philip
Morris makes no attempt to reconcile its position here

19

that it is comprehensively regulated in its use of “light”
descriptors with the position it took in 1998 that there
was no need even for “official” regulatory “guidance” as to
those same descriptors. Comments of Philip Morris Inc.,
et al., at 94, On the Proposal Entitled FTC Cigarette Test-
ing Methodology, FTC File No. P944509 (filed Feb. 5,
1998).

Third, as demonstrated in our opening brief, the FTC’s
consent orders with parties other than Philip Morris are
not signs of comprehensive industry-wide regulation. See
Pet. Br. 44-48. In response, Philip Morris insists (at 41)
that “courts have repeatedly recognized that FTC consent
orders have regulatory effects that extend well beyond
the parties to the agreement.” None of its cited cases,
however, supports the claim that consent orders serve as
industry-wide regulation. Settled precedent establishes,
to the contrary, that FTC consent orders are not a vehicle
for establishing industry-wide policy. See United States v.
E.I. du Pont de Nemours & Co., 366 U.S. 316, 330 n.12
(1961) (“the circumstances surrounding such negotiated
[consent] agreements are so different that they cannot be
persuasively cited in a litigation context”); Trans Union
Corp. v. FTC, 245 F.3d 809, 816-17 (affirming FTC deci-
sion that previous consent order had no “precedential ef-
fect” on subsequent order and did not entitle regulated
party to the same negotiated bargain), on denial of reh’g,
267 F.3d 1138 (D.C. Cir. 2001); Beatrice Foods Co. v. FTC,
540 F.2d 303, 312 (7th Cir. 1976) (previous consent order
does not establish “controlling precedent for later Com-
mission action”)."*

'’ FTC v. Mandel Brothers, Inc., 359 U.S. 385, 391 (1959), does not,
as Philip Morris's amici contend, point to a different result. See For-
mer FTC Staff Br. 24. The Court there found support for its interpre-
tation of the Fur Products Labeling Act in the FTC's “consistent ad-
ministrative construction” of the Act, exemplified by Jn re Ed Hamilton
Furs, Inc., 51 F.T.C. 186 (1954), and reinforced by more than a hun-
dred subsequent cease-and-desist orders bused on that case. 359 U.S.
at 391 & n.6. Although styled a “Stipulation for Consent Order,” the
order ending the Ed Hamilton Furs proceeding was itself, in substance,

20

Philip Morris also quotes (at 41-42) the congressional
testimony of a former FTC chairman explaining that the
agency may choose to proceed by adjudication rather than
by rulemaking because adjudication is often more effi-
cient. But no one disputes that adjudicatory orders may
have precedential effect in prescribing permissible con-
duct by regulated parties. The question is whether FTC
consent orders, which cut short the adjudicatory process
and which consequently embody no findings of fact or
generally applicable conclusions of law, can nevertheless
serve as the foundation of the agency’s comprehensive
regulation of an industry. Nothing in the testimony or
anv case on which Philip Morris relies supports the con-
clusion erroneously reached by the Eighth Circuit (Pet.
App. 15a) that consent orders can have any such effect.

Finally, Philip Morris points (at 40) to a 1967 FTC pol-
icy statement purportedly authorizing the tobacco indus-
try to make representations about the tar and nicotine
content of cigarettes if substantiated by proper testing.
But Philip Morris cites no authority for its premise that a
policy statement has the force of a trade regulation (it
does not, see Campaign for Tobacco-Free Kids Br: 7 n.2),
let alone that it may form the basis for a comprehensive
regulatory regime.

CONCLUSION

The judgment of the court of appeals should be
reversed.

a cease-and-desist order. The defendant stipulated to the record, with-
drew its answer to the FTC’s complaint, and, most importantly,
“agree{d| that the order . . . shall have the same force and effect as if
made after a full hearing, presentation of evidence, and findings and
conclusions thereon.” 51 F.T.C. at 193-94. That language does not
appear in the 1971 and 1995 consent orders. on which Philip Morris
here relies.

STEVEN EUGENE CAULEY

JAMES ALLEN CARNEY

MARCUS N. BOZEMAN

CAULEY, BOWMAN, CARNEY
& WILLIAMS, PLLC

11311 Arcade Drive

Suite 200

Little Rock, Arkansas 72212

(501) 312-8500

Respectfully submitted,

DAVID C. FREDERICK
Counsel of Record

MARK L. EVANS

KELLY P. DUNBAR

KELLOGG, HUBER, HANSEN,
TODN, EVANS & FIGEL,
P.L.L.C.

1615 M Street, N.W.

Suite 400

Washington, D.C. 20036

(202) 326-7900

Counsel for Petitioners

April 18, 2007

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0251%3A09. Public record. Not legal advice.