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

Supreme Court brief2007

Ask Donna

What actually matters in this document.

Text

w7 [Sapreme RUS |

FILED

HW) FEB 26 2007

No. 05-1284 | OFFICE OF THE CLERK |

In the Supreme Court of the United States

LISA WATSON, ET AL., PETITIONERS

Uv.

PHILIP MORRIS COMPANIES, INC., ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

SUPPORTING PETITIONERS

PaUL D. CLEMENT

Solicitor General

Counsel of Record

PETER D. KEISLER

Assistant Attorney Geveral

THOMAS G. HUNGAR

Deputy Solicitor General

IRVING L. GORNSTEIN

Assistant to the Solicitor

General

MARK B. STERN

DANA J. MARTIN

Attorneys

Deporticut of Justice

Washington, DC. 20530-0001

(202) 014-2216

QUESTION PRESENTED

Whether a private party doing no more than com-

plying with federal regulation is a “person acting under

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

entitling the actor to remove to federal court a civil

action brought in state court un:‘er state law.

(1)

: —* Se

wor ee ay = eo

=a oy f (s

TABLE OF CONTENTS

Page

Interest of the United States ................ cc cceeeeeess 1

ore eee Jon cadehyisuseheaewaankednes 1

NS oo di a anu ek enn heeneeneeeeeenes 7

Argument:

A person acts “under” a federal officer only when that

person acts on behalf of or otherwise assists the officer

in carrying out the officer’s official duties ............. 10

A. The text, evolution, and judicial construction of

the federal officer removal statute make clear

that it permits removal by private parties only

when they act on behalf of or otherwise assist

federal officers in carrying out their official

EE cdcdaussvaccaduneveukderweddenedeonsés ks 11

B. Limiting private-party removal to persons

assisting federal officers in the performance of

official duties accords with the purpose of the

federal officer removal statute ................... 17

C. Permitting removal by private parties

subjected to detailed and specific federal

regulation would potentially shift into federal

court a wide range of traditional state law

inh cnte ues bude dauesds chu wawetctesne sda 19

D. A proper understanding of the scope of the

federal officer removal statute leaves ample

room for removal by private parties in

I i cnccxvinesiusssddncuedeveeuens 24

E. The court of appeals’ reasons for holding that

respondent was acting under a federal officer in

marketing “light” cigarettes are unpersuasive ..... 26

PD Wauuksnedsceseseasusensines eu eceteesedesecs 30

(IIT)

TABLE OF AUTHORITIES

Page

Cases:

Bates v. Dow Agrosciences LLC, 544 U.S. 431 (2005) ... 22

_ Beneficial Nat'l Bank v. Anderson, 539 U.S. 1 (2003) ... 23

Camacho v. Autoridad de Telefonos, 868 F.2d 482 (1st

PE tides Gece daneackedenchsuneedevas 24

City of Greenwood v. Peacock, 384 U.S. 808

Pere ere rr eT TT Terre TTT Tre passim

Colorado v. Symes, 286 U.S. 510 (1932) ............... 28

Davis v. South Carolina, 107 U.S. 597 (1882) .... 16,17, 18

Freightliner Corp. v. Myrick, 514 U.S. 280 (1995) ...... 22

FTC v. Brown & Williamson Tobacco Corp., 778 F.2d

olin cone eeGs Nee etawess ee

Geier v. American Honda Motor Co., 529 U.S. 861

SE eins ticetewisescoisanedsucnwe diesens -oo ae

Grable & Sons Metal Prods. Inc. v. Daure Eng’g &

Mfo., 545 U.S. FOB (2005) ... ccc cece eeccees 20, 29

Gully v. First Nat'l Bank, 299 U.S. 109 (1936) ...... 19, 23

Holmes Group, Inc. v. Vornado Air Circulation Sys.

Feat... GED UE. GRR Gc vc ccc cc ccwcctecces 19, 20, 29

Jefferson County v. Acker, 527 U.S. 423 (1999) «2.2.2... 2

Logue v. United States, 412 U.S. 521 (1973) ........... 28

Louisville & Nashville R.R. v. Mottley, 211 U.S. 149

SE sic cuawinsh heats een eCAweeedauesEeieons ater 2

Magnin v. Teledyne Cont'l Motors, 91 F.3d 1424 (11th

ED os CoN ee eke Cea aN Nhs enended iene as 26

Maryland v. Soper, 270 U.S. 9 (1925)... 6... ee eee eee 17

Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) .. 2.2.2.0... 22

Cases—Continued: Page

Merrell Dow Pharms. Inc. v. Thompson, 478 U.S. 804

i PPT Tee ee 20

Mesa v. California, 489 U.S. 121 (1989) ..............0. 2

Noble v. Employers Ins. of WAUSAU, 555 F.2d 1257

GREG BSNS ov cvs eccssekvesscuncensscueeeee 25

Texas v. National Bank of Commerce, 290 F.2d 229

(5th Cir.), cert. denied, 368 U.S. 832 (1961) ......... 26

Tennessee Vv. Davis, 100 U.S. 257 (1880) ............. 2,8

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

denied, 513 U.S. 815 (1994) ........... ccc ccccccces 24

Walling v. Harnischfeger Corp., 242 F.2d 712 (7th

GR THUD oven ce cecsvavcsenchdecseeseee 27

Willingham v. Morgan, 395 U.S. 402

GONE eccvcdensesnubiccessanteskenee 2, 12, 13, 18, 28

Statutes, regulations and rules:

Act of Feb. 4, 1815, ch. 31, 3 Stat. 195:

OG, DUB, FG oo vos cccccvadcesciseveseeneeee 12

§ 7:

fp SS Ree 8

Bs GD 6 kccvnveccessasssannweeeee 12, 13, 25

§ 8:

See, BIG ov 0c cescccedecucteessecaue eee 8

es WE ok ss cksbeuesescuns Ppp wennees. 3% 12, 13, 25

Act of Mar. 2. 1833, ch. 57, 4 Stat. 632:

OE, CGE, GE co sc ccc veccusseeeussakesuseeee 12

Pe} Ff PT 12

Statutes, regulations and rules—Continued: Page

Act of July 13, 1866, ch. 184, 14 Stat. 98:

§ 67:

SEY aeeede ches ceandedassachddévedeaes 13

eeu nean 13

Act of June 25, 1948, ch. 646, § 1, 62 Stat. 938

i enone 4

Federal Tort Claims Act:

ae oe teen eeb ands 28

EE a a ee 28

Federal Trade Commission Act, 15 U.S.C. 41

et seq.:

EE atin dt pics deen eekecactswass 3

15 U.S.C. 45(a)(1) (§ Sal) «2... cece eee 2

PEE OED cecctdcccocesccccesecceccecess 3

EES I a a 3

Judicial Code of 1911, ch. 231, § 33,36 Stat. 1097 ....... 14

a 14

EE a 1, 19, 20

i witb ide eeceenuenesseneseese ce passim

nea tenes 2,15

eu peep kcosennees 15

Cee ee a ie i ceaneecueneeces 23

16 C.F.R.:

Pt. 1:

ee es tebe uetwas 3

Pt. 3:

CE tence cdeey sépueceseeeees 3

Vil

Regulations—Continued: Page

PGE ccenecevcsvcscacsenscessedcesecad 3

PL ED ab avadenddcedcngachuennssosuanns 23

PEE Ubddnsecdnucoudavdscsekescenseuednsoues 23

21 C.F.R.:

DED scckuducncdsesanvossddescnseuhabet 22

REED caccvcbiccecsvcecenteesbcnseuuans 22

EEE esubduddéscodusvsanducsouesensden 22

ED dcsstvescodcccvesnswascesaceseeia 22

PT MED dsscecduedétacenncsasecnnsswnnese 23

SEE Sic cdeencksdbnnccdccnsvewesonceseeet 22

SPEED Ks ncccessecsdeccdsccnunsesenesontes 22

Miscellaneous:

Se C SNNE GREED oc cccdncvccccccecsccsouness 4

SP DEED acceddceccchonedcacedisencsen 4

62 Fed. Reg. (1997):

GED nesidbececsocecddcvconetendsacssceneces 4,5

REE cna é sien Venkee ndestetenebideninenad 4,5

FTC:

Cigarette Adver. Guides, 6 Trade Reg. Rep. (CCH)

DOR GBD cecncccccecctessvcencess 3

Report to Congress Pursuant to the Pub. Health

Cigarette Smoking Act of the Year 1978 (Dee. 24,

EEE nual dGbusddadeeenceduadbesvdedasantecende 4

Funk & Wagnalls New Standard Dictionary of the

Be EMMNGNEMOCTOED cc cccceccccccecccccecses 11

H.R. Rep. No. 308, 80th Cong., Ist Sess. (1947) ........ 15

Vill

Miscellaneous—Continued: Page

Tar and Nicotine Testing and Disclosure (FTC

petition for rulemaking filed Sept. 18, 2002) ......... 5

The Random House Dictionary of the English

ED civ chetakidabetwatdeaet Veaennedns 11

Webster’s New International Dictionary of the

English Language (2d ed. 1958) .................- 11

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES

This case presents the question whether the mere fact

that a private party’s conduct is subject to federal regula-

tory requirements can suffice to establish that the party is

“acting under” a federal officer for purposes of the federal

officer removal statute, 28 U.S.C. 1442(a). The United

States has a substantial interest in the resolution of that

question. Permitting persons who are properly viewed as

acting under a federal officer to remove state law actions to

federal court ensures that state courts will not interfere

with the operations of the federal government. At the same

time, allowing persons who are not properly viewed as per-

sons acting under a federal officer to remove may signifi-

cantly alter the traditional federal-state balance in the adju-

dication of state law claims. The United States also has an

interest in this case because the court below based its deci-

sion on its understanding that respondent marketed its

“light” cigarettes pursuant to detailed and specific regula-

tion by a federal agency—the Federal Trade Commission

(FTC). At the invitation of the Court, the United States

filed a brief as amicus curiae at the petition stage of this

case.

STATEMENT

1. In general, an action brought in state court may be

removed to federal court only if a federal district court

would have original jurisdiction of the action. See 28 U.S.C.

1441(a). For a case to fall within the district court’s federal

question jurisdiction, the federal question must ordinarily

appear on the face of the complaint; a federal defense to a

(1)

state law claim generally does not suffice. See Louisville &

Nashville R.R. v. Mottley, 211 U.S. 149, 152 (1908).

The federal officer removal provision, 28 U.S.C. 1442(a),

creates an exception to that general rule. It authorizes

removal of any civil action filed in state court against “(t]he

United States or any agency thereof or any officer (or any

person acting under that officer) 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).

Suits that fall within the scope of Section 1442(a) may be

removed even when the federal question arises only by way

of a defense to a state law claim. See Jefferson County v.

Acker, 527 U.S. 423, 431 (1999). The purpose of the federal

officer removal statute is to ensure that state courts do not

unduly interfere with the operations of the federal govern-

ment. Willingham v. Morgan, 395 U.S. 402, 406 (1969);

Tennessee v. Davis, 100 U.S. 257, 263 (1880).

To remove an action to federal court successfully under

the federal officer removal statute, a defendant must satisfy

three requirements. First, the defendant must be a federal

officer, a federal agency, or a person acting under a federal

officer. 28 U.S.C. 1442(a). Second, the defendant must

assert a “colorable” federal defense. Mesa v. California,

489 U.S. 121, 129, 139 (1989). And third, the defendant

must establish that the suit is “for any act under color of

such office.” 28 U.S.C. 1442(a)(1). In order to satisfy the

third requirement, the defendant “must show a nexus, a

causal connection between the charged conduct and as-

serted official authority.” Jefferson County, 527 U.S. at 431

(citation and internal quotation marks deleted).

2. The Federal Trade Commission (FTC) has authority

under Section 5(a)(1) of the Federal Trade Commission Act

(FTC Act), 15 U.S.C. 45(a)(1), to prevent “unfair or decep-

tive acts or practices in or affecting commerce.” That au-

thority extends to most industries, including the tobacco

industry.

The FTC exercises its authority under Sections 5 and 13

of the FTC Act in two ways. First, the agency may bring

an administrative or judicial enforcement action. 15 U.S.C.

45, 53; see 16 C.F.R. 3.1 et seg. Such actions are frequently

resolved through negotiated consent agreements. See 16

C.F.R. 3.25. Second, the FTC may promulgate trade regu-

lation rules that apply to an entire industry. 15 U.S.C. 57b-

3; 16 C.F.R. 1.7-1.20. Rulemaking proceedings require an

initial publication of the proposed rule, the opportunity for

public comment, and a formal vote by the FTC’s commis-

sioners. [bid.

In the 1950s, the FTC became concerned that tobacco

companies’ advertising claims were inaccurate and mislead-

ing to consumers. FTC v. Brown & Williamson Tobacco

Corp., 778 F.2d 35, 37 (D.C. Cir. 1985). After initially advis-

ing tobacco companies in 1955 not to make representations

about the tar and nicotine levels of their cigarettes, ibid.,

the FTC issued a policy statement in 1966 stating that a

factual statement of the tar and nicotine content based on

the “Cambridge Filter Method” (Cambridge Method)

would not be treated as deceptive as long as there were

no express or implied representations that the specified

level of tar or nicotine reduced or eliminated health haz-

ards. Cigarette Adver. Guides, 6 Trade Reg. Rep. (CCH)

{1 39,012.70, at 41,602 (Oct. 6, 2004).

- The Cambridge Method “utilizes a smoking machine that

takes a 35 milliliter puff of two seconds’ duration on a ciga-

rette every 60 seconds until the cigarette is smoked to a

specified butt length. The tar and nicotine collected by the

machine is then weighed and measured.” Brown & Wil-

liamson, 778 F.2d at 37. Because smoking behavior varies

from person to person, the Cambridge Method does not

attempt to replicate the actual amount of tar and nicotine

inhaled by human smokers. Pet. App. 3a. The FTC none-

theless endorsed the test “to provide smokers seeking to

switch to lower tar cigarettes with a single, standardized

measurement with which to choose among the existing

brands.” 62 Fed. Reg. 48,158 (1997).

In 1970, the FTC initiated formal rulemaking to require

tobacco manufacturers to disclose the tar and nicotine

yields determined by the Cambridge Method test. 35 Fed.

Reg. 12,671 (1970). Before the FTC adopted a rule, how-

ever, a number of major tobacco companies (including re-

spondent Philip Morris) entered into a voluntary agree-

ment among themselves to disclose Cambridge Method test

data in all cigarette advertisements. Pet. App. 3a. That

private agreement prompted the FTC to end its rule-

making proceedings. 36 Fed. Reg. 784 (1971); 62 Fed. Reg.

at 48,158.

The FTC originally conducted Cambridge Method tests

through its own laboratory and published the results in the

Federal Register. Pet. App. 3a, 27a; 62 Fed. Reg. at 48,158.

An organization funded by major tobacco companies, the

Tobacco Institute Testing Lab (TITL), also conducted inde-

pendent Cambridge Method tests. After the FTC ceased

conducting the tests ia 1987, the TITL continued to conduct

them. /d. at 48,158 & n.5.

The FTC has never promulgated official regulatory defi-

nitions of terms such as “light” or “low tar.” 62 Fed. Reg.

at 48,163. In several reports to Congress, the FTC used the

term “low tar” to refer to cigarettes containing 15 milli-

grams or less of tar. See, e.g. FTC, Report to Congress

Pursuant to the Public Health Cigarette Smoking Act for

the Year 1978, at 3 (Dec. 24, 1978). Those references, how-

ever, did not reflect an official FTC regulatory position.

In 1997, the FTC requested comments on whether it

should regulate the tobacco industry’s use of descriptive

terms in advertising and labeling. 62 Fed. Reg. at 48,158.

That request made clear that “[t|here are no official defini-

tions” for terms such as “low tar,” “light,” or “ultra light,”

but explained that “they appear to be used by the industry

to reflect ranges of FTC tar ratings.” /d. at 48,163. The

FTC did not take any regulatory action in response to that

request. In 2002, Philip Morris petitioned the FTC to pro-

mulgate a trade regulation rule that would require tobacco

companies to: (1) disclose the average tar and nicotine

yields of cigarette brands; (2) define and regulate the use of

descriptors such as “light” and “ultra light;” and (3) man-

date the use of disclaimers with respect to the average tar

yield and the health effects of low yield cigarettes. Petition

for Rulemaking 1, 32-35, Tar and Nicotine Testing and

Disclosure (filed Sept. 18, 2002). That petition is still pend-

ing before the FTC.

3. Petitioners Lisa Watson and Loretta Lawson filed suit

in Arkansas state court against respondent Philip Morris, .

Inc., alleging that respondent had engaged in unfair busi-

ness practices in connection with the sale of Cambridge

Lights and Marlboro Lights. Pet. App. la-2a. Petitioners

specifically alleged that respondent designed those ciga-

rettes to register lower levels of tar and nicotine on the

Cambridge Method test than would be delivered to actual

smokers. /d. at 63a-64a. They further alleged that respon-

dent engaged in that conduct in order to achieve support

for false and misleading claims that Cambridge Lights and

Marlboro Lights are lighter than regular cigarettes. /d. at

64a. Petitioners seek to represent a class of persons who

purchased Cambridge Lights or Marlboro Lights in Arkan-

sas for personal consumption. /d. at 66a.

Relying on the federal officer removal statute, 28 U.S.C.

1442(a), respondent removed the case to the United States

District Court for the Eastern District of Arkansas. Pet.

App. 74a-75a. Petitioners moved to remand the case, but

the district court denied the motion. /d. at 20a-60a. It rea-

soned that respondent was “acting under” a federal officer

in its advertising of “light” cigarettes and that removal was

therefore appropriate under Section 1442(a). Jd. at 41la-

46a. The court certified for interlocutory review the ques-

tion whether removal was appropriate under Section

1442(a). Id. at 58a-60a.

4. The court of appeals accepted the appeal and af-

farmed. Pet. App. la-19a. The court held that the question

whether a defendant is “acting under” a federal officer

“depends on the detail and specificity of the federal direc-

tion of the defendant’s activities and whether the govern-

ment exercises control over the defendant.” /d. at 6a. The

court explained that while “[m Jere participation in a regu-

lated industry” does not establish grounds for removal,

removal is appropriate when “the challenged conduct is

closely linked to detailed and specific regulations.” /bid.

(internal quotation marks and citation omitted). Applying

its “acting under” test, the court concluded that the FTC

had engaged in detailed regulation of tobacco companies

because it had specified details of the Cambridge Method

test, published the ratings, and monitored cigarette adver-

tisements. /d. at 9a-10a.

The court rejected the argument that the tobacco compa-

nies’ use of the Cambridge Method test was the result of a

voluntary agreement rather than government compulsion.

Pet. App. 9a-10a. The court reasoned that the FTC “effec-

tively used its coercive power to cause the tobacco compa-

nies to enter the agreement.” /d. at 10a. The court also

concluded that the FTC had effectively enforced the agree-

ment by making “comments” that “suggest{ed] it would

bring an action for deceptive advertising or reinstitute for-

mal rulemaking proceedings if a company did not disclose

the tar and nicotine ratings” produced by the Cambridge

Method. /d. at 1a.

The court of appeals next concluded that there was a

“causal connection” linking the FTC’s actions to the acts

challenged in petitioners’ complaint. Pet. App. 13a-14a.

The court reached that conclusion based on its view that

petitioners’ suit challenges the FTC’s policy judgment that

despite the deficiencies in the Cambridge Method, its re-

sults “should still be included in advertising, even if along-

side ‘light’ descriptors,” in order to prevent deception. /d.

at 16a. Finally, the court concluded that respondent had

raised a colorable federal defense. /d. at 16a-17a.

Judge Gruender filed a concurring opinion. He stated

that the court’s decision depended on the “extraordinary”

level of control that the FTC exercises over tobacco compa-

nies. Pet. App. 18a.

SUMMARY OF ARGUMENT

The federal officer removal statute limits private party

removal to persons who are “acting under” federal officers.

28 U.S.C. 1442(a). A person acts under a federal officer

within the meaning of that statute only when that person

acts on behalf of or otherwise assists the officer in carrying

out the officer’s duties. A private party that acts for its own

purposes is not acting under a federal officer merely be-

cause it acts in compliance with federal regulation.

A. The phrase “acting under” is commonly used to refer

to a person in a subordinate position who assists a person

in a superior position in carrying out the superior’s duties.

The evolution and judicial construction of the federal officer

removal statute show that the statutory phrase “acting un-

der” is properly understood in that sense.

The first federal officer removal statute authorized re-

moval by any customs officer and any other person “aiding

or assisting” such officer in the discharge and performance

of the official’s duties. Act of Feb. 4, 1815, ch. 31, §§ 7, 8,3

Stat. 197-198. Later versions of the statute used the “act-

ing under” formulation, making explicit what had been im-

plicit in the original formulation: that the person aiding the

officer must act subject to the supervision, guidance, or

oversight of the officer, rather than as an officious inter-

meddler. But no expansion in the class of persons entitled

to remove was intended. Indeed, in City of Greenwood v.

Peacock, 384 U.S. 808, 823 n.20 (1966), the Court explained

that the “acting under” formulation drew on the “compara-

ble characterization” of the persons entitled to remove un-

der the original statute.

Peacock’s construction of a related removal statute con-

firms that the two formulations were designed to reach the

same class of persons. The removal statute at issue in Pea-

cock did not include an “acting under” limitation, but the

Court held that the statute implicitly contained such a re-

quirement. 384 U.S. at 821. Of crucial importance here, the

Court equated persons acting under federal officers with

“persons assisting such officers in the performance of their

official duties.” /d. at 815. The underscanding that persons

act under federal officers only when they assist such offi-

cers in carrying out their official duties is also reflected in

the two cases in which the Court has interpreted the “act-

ing under” language in the federal officer removal statute.

B. Limiting the removal right to persons who assist fed-

eral officers in carrying out their duties is consistent with

the statute’s purpose of preventing state court interference

with “the operations of the general government.” Tennes-

see v. Davis, 100 U.S. 257, 263 (1880). If the federal govern-

ment could not receive the help it needs from private par-

ties to carry out its operations, the government’s ability to

function effectively could be seriously jeopardized. The

same cannot be said, however, when a private party is sued

in state court for conduct undertaken for purely private

purposes, even if the private party was subject to detailed

and specific regulatory requirements in so acting. Such

persons are not engaged in conduct that serves to advance

the government’s operations.

C. At the same time, permitting such parties to remove

would potentially shift into federal court a wide range of

traditional state law claims. Manufacturers of medical de-

vices, cars, pesticides, and consumer products are all sub-

ject to detailed and specific federal regulation. It is highly

improbable that Congress intended to shift traditional state

law claims against such manufacturers into federal court

through the federal officer removal statute. Detailed and

specific federal regulation may well supply a federal pre-

emption defense. But except in the case of complete pre-

emption, the existence of such a defense has never been

viewed as a sufficient basis to transfer a traditional state

law claim against a private party into federal court. It is

implausible that Congress silently authorized wholesale

evasion of that established principle by means of the federal

officer removal statute.

D. Court of appeals decisions illustrate the proper scope

of removal under the “acting under” provision of the federal

officer removal statute. As those cases establish, the provi-

sion is critically important in protecting those who assist

federal officers in performing their work, in both the law

enforcement context and in other settings. But it does not

extend to those subject to a federal regulatory regime, even

a pervasive one.

FE. Tobacco manufacturers that market “light” ciga-

rettes do not remotely act under federal officers. Such

manufacturers hardly market “light” cigarettes on the

FTC’s behalf; they do so solely to further their own eco-

nomic interest. Nor does it matter that they pursue their

own interest in asserted compliance with federal law. Com-

pliance is just what the law expects. It does not transform

a private party that acts to further its own economic inter-

est into a party assisting federal officers in carrying out

their duties. Because respondent did not act on behalf of or

otherwise assist federal officers in carrying out their official

duties, it had no right to remove petitioner’s state law ac-

tion to federal court.

ARGUMENT

A PERSON ACTS “UNDER” A FEDERAL OFFICER ONLY

WHEN THAT PERSON ACTS ON BEHALF OF OR OTHERWISE

ASSISTS THE OFFICER IN CARRYING OUT THE OFFICER’S

OFFICIAL DUTIES

As relevant here, the federal officer removal statute, 28

U.S.C. 1442(a), affords a right of removal to any “officer (or

any person acting under that officer) of the United States

* * * for any act under color of such office.” The court of

appeals in this case held that a private entity is “acting un-

der” a federal officer for purposes of that statute whenever

it acts pursuant to “detailed and specific regulations.” Pet.

App. 6a (citation and internal quotation marks omitted); see

ibid. (“comprehensive and detailed regulation”); id. at 13a

(“comprehensive and detailed control”) (citation omitted).

That reading of the statute expands it far beyond its in-

tended scope. A private person acts under a federal officer

within the meaning of the federal officer removal statute

only when that person acts on behalf of or otherwise assists

the officer in carrying out the officer’s official duties. A

private party that acts for its own private purposes is not

“acting under” a federal officer merely because it does so in

compliance with detailed and specific federal regulations.

A. The Text, Evolution, And Judicial Construction Of The Fed-

eral Officer Removal Statute Make Clear That It Permits

Removal By Private Parties Only When They Act On Behalf

Of Or Otherwise Assist Federal Officers In Carrying Out

Their Official Duties

As presently codified, Section 1442(a) confers removal

rights on persons “acting under” a federal officer. In ordi-

nary parlance, the term “under” indicates, inter alia, “sub-

jection, guidance, or control,” or “{s]ubject to the guidance

and instruction of.” Webster’s New International Dictio-

nary of the English Language 2765 (2d ed. 1958); see Funk

& Wagnalls New Standard Dictionary of the English Lan-

guage 2604 (1946) (“[slubordinate or subservient to,”

“(sJubject to guidance, tutorship, or direction of”); see also

The Random House Dictionary of the English Language

1543 (1966) (defining “under” to mean, inter alia, “in the

position or state of * * * supporting [or] sustaining”).

Thus, when used to describe conduct by one person in rela-

tionship to another, “under” is commonly used to describe

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. Webster's 2765

(“he fought under Cromwell”); Random House 1543 (“a

bureau functioning under the prime minister’). The evolu-

tion and judicial construction of the federal officer removal

statute confirm that the statutory phrase “acting under” is

properly understood in that sense.

1. The current version of the federal officer removal

statute is the end-product of a series of congressional enact-

ments beginning in the early years of our Nation’s history,

and an examination of those historical antecedents sheds

considerable light on the statute’s scope and purpose. See

City of Greenwood v. Peacock, 384 U.S. 808, 814-815 (1966)

(interpreting related removal statute in light of its histori-

cal antecedents). The “primordial” federal officer removal

statute, id. at 821 n.17, was enacted in 1815 “as part of an

attempt to enforce an embargo on trade with England over

the opposition of the New England States, where the War

of 1812 was quite unpopular.” Willingham, 395 U.S. at 405.

The 1815 Act allowed removal by customs collectors and

other officers involved in enforcement of the customs laws

“or any other person aiding or assisting” under color of

that statute. Act of Feb. 4, 1815, ch. 31, § 8, 3 Stat. 198

(emphasis added). The statute elsewhere indicated that the

private parties entitled to remove were citizens called upon

by a customs officer to “aid and assist such officer in the

discharge and performance of his duty,” such as by seizing

embargoed goods. § 6, 3 Stat. 197.

The 1815 removal provision expired at the end of the

War, but in 1833, in response to South Carolina’s threats of

nullification, see Willingham, 395 U.S. at 405, Congress

authorized 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.” Act of Mar. 2, 1833, ch.

57, § 3, 4 Stat. 633. While that provision referred to any

“other person” rather than to “any person aiding or assist-

ing,” there is no indication that a substantial difference in

meaning was intended. In addition to the persons covered

by the previous provision, the statute contemplated only

two additional classes of persons who would have a right to

remove: members of the land, naval, or militia forces em-

powered to protect the customs officers from unruly mobs,

§ 1, 4 Stat. 632, and persons who claimed title to land under

the authority of the revenue laws, § 3,°4 Stat. 633. Inclu-

sion of the latter class may have caused Congress to use the

term “person” rather than “person aiding or assisting.”

Peacock, 384 U.S. at 821 n.17.

Congress enacted a series of federal officer removal stat-

utes during the Civil War “which applied mainly to cases

growing out of the enforcement of the revenue laws.”

Willingham, 395 U.S. at 405-406. One such statute sepa-

rately protected any revenue officer, “any person acting

under or by authority of any such officer on account of any

act done under color of his office,” or “any person holding

property or estate by title derived from any such officer.”

Act of July 13, 1866, ch. 184, § 67, 14 Stat. 171. The statute

elsewhere made clear that the category of persons “acting

under” revenue officers were persons engaged in acts un-

der or by the authority of revenue officers “for the collec-

tion of taxes.” § 67, 14 Stat. 172. Thus, while using differ-

ent language, the 1866 Act gave a right of removal to essen-

tially the same class of persons as the original federal offi-

cer removal statute: persons aiding federal officers in the

enforcement of revenue laws. The “acting under” formula-

tion made explicit what had been implicit in the original

formulation: that the person assisting the officer must be

subject to the supervision, guidance, or oversight of the

officer, rather than an officious intermeddler. But no ex-

pansion in the class of persons entitled to remove was in-

tended.

Indeed, the Court made clear in Peacock that the “acting

under” terminology adopted in the 1866 Act did not signal

a substantive departure from the original 1815 Act’s refer-

ence to “any other person aiding or assisting” a federal rev-

enue officer. Act of Feb. 4, 1815, ch. 31, § 8, 3 Stat. 198.

The Court explained that “|a|lthough, in the revenue officer

removal provision of the Revenue Act of 1866 * * *, Con-

gress expressly characterized the ‘other person’ as one ‘act-

ing under or by authority of any [revenue] officer,’ that

statute obviously drew on the comparable characterization

of the ‘other person’ in the Customs Act of 1815.” 384 U.S.

at 823 n.20 (emphasis added).

The 1866 version of the removal provision was eventually

codified into a permanent statute. See Rev. Stat. § 643

(1874); Judicial Code of 1911, ch. 231, § 33, 36 Stat. 1097. As

part of the 1948 recodification of the Judicial Code, Con-

gress enacted the provision containing the critical language

at issue here. Act of June 25, 1948, ch. 646, § 1, 62 Stat. 938

(28 U.S.C. 1442(a)). That enactment expressly expanded

the right of removal to encompass any federal officer and

any person “acting under” any such officer.

The expansion of the removal right from any revenue

officer to any federal officer necessarily worked a corre-

sponding expansion in the class of private parties entitled

to remove. While the previous statute allowed private par-

ties to remove when they assisted revenue officers in their

duty to enforce the revenue laws, the 1948 statute allows

private parties to remove when they assist any federal offi-

cer in carrying out that officer’s duties, regardless of

whether those duties involve enforcement of the revenue

laws, or indeed enforcement activity of any kind. See U.S.

Cert. Stage Amicus Br. 17-18.

That expansion was significant, but the 1948 provision

did not expand the class of private parties eligible to re-

move in any other way. In particular, while Congress did

expand the universe of federal officers directly covered by

the provision, it did not expand the scope of derivative cov-

erage for those assisting any federal officer directly cov-

ered by the statute—whether a revenue officer or a federal

officer included for the first time. There is nothing in the

text of that provision to suggest that Congress intendeda -

novel expansion of the removal right to encompass persons

who are not involved in assisting federal officers in the per-

formance of their duties, but instead are simply the objects

of detailed and specific government regulation.

Nor is there anything in the legislative history that

would support that sweeping expansion of the class of per-

sons eligible to remove. Indeed, other than federal officers,

the legislative history refers to only one class of persons

eligible to remove—federal “employees.” H.R. Rep. No.

308, 80th Cong., Ist Sess. A-134 (1947). Not only.do federal

employees assist federal officers in the performance of their

official duties; that is their job. To be sure, the committee

report’s reference to federal “employees” cannot be under-

stood to suggest that private parties are categorically ineli-

gible for removal under Section 1442(a)(1); the text and

genesis of the statute preclude that result. The point is

simply that the legislative history affords no basis for up-

rooting the statute from its historic context by construing

it to encompass not only persons who assist federal officers

in the performance of their official duties, but also persons

who are the object of detailed and specific government reg-

ulation.

2. The Court’s decision in Peacock reinforces the conclu-

sion that the federal officer removal statute applies to pri-

vate parties only when they act on behalf of or otherwise

assist federal officers in the performance of their official

duties. In Peacock, the Court interpreted a related removal

provision, 28 U.S.C. 1443(2). That provision authorizes re-

moval of a civil action “for any act under color of authority

derived from any law providing for equal rights.” In light

of that provision’s text and history, the Court held that it

was implicitly “limited to federal officers and those acting

under them.” 384 U.S. at 821. Of crucia! importance here,

the Peacock Court equated the phrase persons “acting un-

der” federal officers with “persons assisting such officers in

the performance of their official duties,” id. at 815, and with —

persons “authorized to act with or for them in affirmatively

executing duties under any federal law.” /d. at 824.

As a matter of logic and interpretive consistency, the

Court’s construction of the implicit “acting under” limita-

tion at issue in Peacock is equally applicable to the express

“acting under” limitation contained in the federal officer

removal statute. Indeed, as discussed above, the Peacock

Court suggested as much, noting that Congress’s adoption

of the “acting under” terminology in 1866 for purposes of

the federal officer removal statute “obviously drew on” the

“comparable characterization” in the 1815 Act, i.e., persons

“aiding or assisting” federal revenue officers. 384 U.S. at

823 n.20. Similarly, the Court described the 1874 codifica-

tion of the federal officer removal statute (which employed

the same “acting under” terminology) as “applicable to fed-

eral officers and persons assisting them.” Id. at 820 n.17

(emphasis added). Accordingly, in accordance with Pea-

cock, the “acting under” limitation in the federal officer

-removal statute must be understood to confine private-

party removal to “persons assisting [federal] officers in the

performance of their official duties.” /d. at 815.

3. That understanding is also reflected in the two cases

in which the Court has interpreted the “acting under” lan-

guage in the federal officer removal statute. In both cases,

the Court held that persons act under a federal revenue

officer when they assist the officer in the performance of

the officer’s duties.

In Davis v. South Carolina, 107 U.S. 597 (1883), a corpo-

ral of the United States infantry was detailed to assist a

revenue officer in making an arrest under the revenue laws.

After a state criminal prosecution arising out of the arrest

was brought against him, he sought to remove the case to

federal court under a predecessor statute that authorized

removal by persons acting under or by the authority of a

revenue officer. The Court held that the corporal was enti-

tled to remove because the removal statute “shields all who

lawfully assist [a revenue officer] in the performance of his

official duty,” and the corporal “was acting in that capac-

ity.” Id. at 600.

Similarly, in Maryland v. Soper, 270 U.S. 9 (1925), fed-

eral prohibition agents and their chauffeur sought to re-

move a state criminal prosecution to federal court. The

predecessor statute at issue authorized removal by officers

appointed under the federal revenue laws and persons act-

ing under or by their authority. The Court held that the

four prohibition agents were officers acting under the au-

thority of the revenue laws within the meaning of the re-

moval statute. /d. at 31. The Court further observed that,

because the chauffeur was acting as a “helper to the four

officers under their orders,” he had “the same right to ben-

efit of [the removal statute] as they.” /d. at 30.

The Court in Soper ultimately concluded that the defen-

dants had not sufficiently alleged that the prosecution was

for official acts and that they therefore were not entitled to

remove the case. 270 U.S. at 35. But the relevant point for

purposes of this case is the Court’s recognition that a per- ~

son acting as a “helper” to a federa! officer in the perfor-

mance of his official duties is “acting under” that officer for

purposes of the removal statute. Davis and Soper thus

confirm that a person acts under a federal officer when he

assists the officer in the performance of his official duties.

B. Limiting Private-Party Removal To Persons Assisting Fed-

eral Officers In The Performance Of Official Duties Accords

With The Purpose Of The Federal Officer Removal Statute

Limiting removal to persons who assist federal officers

in the performance of their official duties is consistent with

(18

the purpose of the federal officer removal statute. This

Court has recognized that the purpose of the statute is to

prevent state court interference with the operations of the

federal government. Willingham, 395 U.S. at 406; Davis,

100 U.S. at 263. The Court in Davis described the purpose

of the officer removal statute as follows (ibid.):

[The federal government] can act only through its offi-

cers and agents, and they must act within the States. If,

when thus acting, and within the scope of their authority,

those officers can be arrested and brought to trial in a

State court, for an alleged offence against the law of the

State, yet warranted by the Federal authority they pos-

sess, and if the general government is powerless to inter-

fere at once for their protection,—if their protection

must be left to the action of the State court,—the opera-

tions of the general government may at any time be ar-

rested at the will of one of its members.

The need to prevent state court interference with the

federal government’s own operations is directly implicated

when a State seeks to hold a private party accountable for

actions that assisted a federal officer in carrying out that

officer’s duties. If the federal government could not receive

help from private parties to carry out its operations, the

federal government’s ability to function effectively could be

placed in serious jeopardy. But the compelling need to pro-

tect the government’s own operations is generally not impli-

cated when a private party is sued in state court for conduct

undertaken for purely private purposes, even if the private

party was subject to detailed and specific federal regulatory

requirements in so acting. Such conduct is not engaged in

on behalf of or for the assistance of federal officers in the

performance uf their official duties, and thus does not serve

to advance “the operations of the general government.”

Indeed, the existence of a detailed federal regulatory re-

gime may well be an indication that the private conduct at

issue, far from advancing the government’s own operations,

is instead potentially harmful, hazardous, or otherwise

disfavored under federal law.

C. Permitting Removal By Private Parties Subjected To De-

tailed And Specific Federal Regulation Would Potentially

Shift Into Federal Court A Wide Range Of Traditional State

Law Claims

This Court has long interpreted removal statutes against

the background understanding that, except when over-

whelming federal interests are implicated, Congress ordi-

narily intends to respect the interest of the States in pro-

viding state forums for the vindication of state law claims

against private parties, even if they possess a substantial

federal law defense. That understanding of congressional

intent is reflected in the well-pleaded complaint rule, under

which (absent diversity jurisdiction) a state court action

involving state law claims ordinarily may not be removed to

federal court under the general removal provision, 28

U.S.C. 1441(a), even when the merits of a federal defense

may be the dispositive issue in the litigation. See Gully v.

First Nat'l Bank, 299 U.S. 109, 112 (1936).

Similarly, the Court has held more recently that the exis-

tence of a federal law counterclaim is not sufficient to sat-

isfy the well-pleaded complaint rule. Holmes Group, Inc.

v. Vornado Air Circulation Sys., Ine., 5385 U.S. 826, 830-832

(2002). The Court explained that permitting defendants to

secure removal to federal court by alleging a federal law

counterclaim “would radically expand the class of remov-

able cases, contrary to the due regard for the rightful inde-

pendence of state governments that [the Court’s] cases

addressing removal require.” /d. at 832 (internal quotation

marks, brackets, and citation omitted).

Due regard for the States’ interest in providing state law

forums for the vindication of state law claims has also in-

formed the Court’s decisions that identify when the pres-

ence of a federal law ingredient in a state law cause of ac-

tion may provide a basis for removal under Section 1441(a).

For example, in Merrell Dow Pharmaceuticals Inc. v.

Thompson, 478 U.S. 804 (1986), the Court held that state

law negligence actions asserting that alleged violations of

a federal law standard constitute presumptive negligence

are not removable under Section 1441(a). As the Court

subsequently explained, Merrell Dow interpreted Section

1441(a) to preclude removal of such an action because per-

mitting removal would “have heralded a potentially enor-

mous shift of traditionally state cases into federal courts,”

and it was “improbable” that Congress would have wanted

to alter the traditional state-federal balance in that manner.

Grable & Sons Metal Prods., Inc. v. Daure Eng’g & Mfg.,

545 U.S. 308, 319 (2005).

Thus, this Court will not lightly conclude that a removal

statute has dramatically altered the usual federal-state

balance. That principle is directly implicated here, because

the rule of law adopted by the court below—which would

permit removal to federal court whenever a private party

is sued for conduct that was subject to a detailed and spe-

cific federal regulatory regime—has the potential to trans-

fer to federal court a wide array of traditional state law

cases.

That is particularly true in light of the court of appeals’

relatively lax standard for determining whether regulatory

conduct qualifies as “detailed and specific” so as to make

removal available. Pet. App. 6a. In this case, petitioners

have alleged that respondent designed Cambridge Lights

and Marlboro Lights to register lower levels of tar and nic-

otine on the Cambridge Method test than would be deliv-

ered to actual smokers, and that it did so to support its false

and misleading representations that those cigarettes are

lighter than regular cigarettes. /d. at 63a-64a. In holding

that respondent was subject to detailed and specific federal

regulation with respect to those alleged marketing activi-

ties, the court of appeals pointed to essentially three fac-

tors: that the FTC had developed and specified the details

of the Cambridge Method test; that the FTC had published

the results of the tests; and that the FTC had monitored

cigarette advertisements and brought deceptive advertising

claims in some cases. Pet. App. 9a-10a. The court viewed

that level of regulation as sufficiently detailed and specific

to satisfy its removal standard even though: (1) the FTC

has never required tobacco companies to use the Cam-

bridge Method to determine tar levels or to report the re-

sults of those tests in advertising; (2) the FTC has never

adopted any official regulatory definitions of the terms

“light,” or “low tar”; and (3) the FTC has neither requested

nor required tobaceo companies to describe or advertise

their cigarettes using those or any other such descriptors.

See pp. 3-5, supra.

If that level of regulation is sufficiently detailed and spe-

cific to justify removal of petitioners’ claims under the court

of appeals’ standard, then that standard would potentially

allow removal into federal court of a large number of tradi-

tional state law cases. Numerous private entities are sub-

ject to government regulation that is at least as detailed

and specific as that identified by the court of appeals here,

and would seemingly be in a position to remove to federal

court any state-law challenges to their regulated conduct.

Although the concurring opinion suggested that the cireum-

stances of this industry are unique, the essence of what the

court of appeals required—a detailed regulatory structure

with a regulatory safe harbor (for federal law purposes) for

products that comply with the federal regulatory require-

ments—is far from unique.

For example, manufacturers of Class III medical devices

must undergo a rigorous pre-market approval process that

examines the safety and effectiveness of the product.

Medtronic, Inc. v. Lohr, 518 U.S. 470, 477 (1996). Manufac-

turers of Class III devices must also comply with FDA

standards for the manufacturing and labeling of their prod-

ucts. /d. at 497. And the FDA has issued detailed regula-

tions that specify how certain products must be tested or

labeled. E.g., 21 C.F.R. 800.20, 801.430, 801.420, 801.435.

Similarly, vehicle manufacturers must comply with spe-

cific design and performance standards issued by the De-

partment of Transportation’s National Highway Traffic

Safety Administration (NHTSA). 49 C.F.R. Pt. 571; see

Geier v. American Honda Motor Co., 529 U.S. 861, 875-877

(2000); Freightliner Corp. v. Myrick, 514 U.S. 280, 284 &

n.2 (1995). Automobile manufacturers must also comply

with detailed fuel efficiency and testing standards issued by

the Environmental Protection Agency (EPA). 40 C.F.R.

Pt. 86.

There are numerous other examples of extensive federal

regulation. Pesticide manufacturers must comply with a

“comprehensive regulatory statute” that requires registra-

tion of the pesticide with EPA, an EPA determination of

safety and effectiveness, and compliance with EPA labeling

standards. Bates v. Dow Agrosciences LLC, 544 U.S. 431,

437-438 (2005). The Department of Energy establishes

detailed energy and water conservation standards for a

wide range of home products, such as kitchen appliances,

air conditioners, and television sets, and prescribes the spe-

cific method for testing the products to ensure that they

meet those standards. 10 C.F.R. Pt. 430. The Consumer

Product Safety Commission has established specific safety

standards for numerous consumer products, such as bicycle

helmets, baby cribs, and sleepwear as well as tests for de-

termining compliance with its standards. 16 C.F.R. Pts

1000-1750. See e.g. 16 C.F.R. Pt. 1616. And the Occupa-

tional Safety and Health Administration (OSHA) has issued

detailed and specific regulations that require employers to

limit the exposure of their emplovees to certain hazardous

substances. 29 C.F.R. Pt. 1910.

In each of those areas, States may have established their

own consumer protection standards and provided for en-

forcement of those standards in their own courts. Under

the court of appeals’ “detailed and specific regulation” re-

moval test, those actions would potentially be subject to

removal under the federz:' officer removal statute. Itis ~

improbable, to say the least, that Congress intended for the

federal officer removal statute to serve as the vehicle for

the removal of such a large number of traditional state law

suits to federal court.

To be sure, the existence of an extensive federal regula-

tory regime could well furnish a preemption defense to a

state law claim. But except in the rare case of complete

preemption, the existence of a preemption defense has

never been viewed as a sufficient basis for a private party

to remove a state law claim to federal court. See Beneficial

Nat? Bank v. Anderson, 539 U.S. 1, 6-8 (2003); Gully, 299

U.S. at 116. It is simply not plausible that Congress silently

authorized wholesale evasion of that established principle

by means of the federal officer removal statute.

D. A Proper Understanding Of The Scope Of The Federal Offi-

cer Removal Statute Leaves Ample Room For Removal By

Private Parties In Appropriate Cases .

Courts of appeals applying the federal officer rernoval

statute in the context of private-party removal have gener-

ally focused on the degree of federal oversight or control of

the private party’s activities, sometimes without explicitly

considéring whether the private party was acting on behalf

of or otherwise assisting federal officers in the performance

of their duties. As has been discussed, a proper under-

standing of the text, evolution, judicial construction, and

purposes of the federal officer removal statute makes clear

that consideration of those latter factors should guide the

removal analysis. Nonetheless, the decisions of a number

of courts of appeals serve to illustrate the proper scope of

private-party removal under Section 1442(a)(1), and how

far outside the proper scope the decision below ventures.

For example, in Venezia v. Robinson, 16 F.3d 209 (7th

Cir.), cert. denied, 513 U.S. 815 (1994), a state employee

solicited a bribe as part of a sting operation conducted by

FBI agents. Because the state employee was soliciting the

bribe in aid of a sting operation run by federal officers, the

court correctly concluded that the employee was acting

under federa! officers within the meaning of the federal

officer removal statute. /d. at 211-212.

Similarly, in Camacho v. Autoridad de Telefonos, 868

F.2d 482 (1st Cir. 1989), telephone companies participated

in the wiretapping of certain phone lines under the direc-

tion of federal agents. Because the telephone companies

were assisting federal officers engaged in “official” law en-

forcement activity, and they were doing so at “federal be-

hest,” the court properly held that they were acting under

federal officers within the meaning of the federal officer

removal statute. Jd. at 486.

As those cases and the historical background of the re-

moval statute demonstrate, the federal officer removal stat-

ute is most obviously implicated when private individuals

are aiding law enforcement activity. Persons eligible for

removal under that rationale would include not only under-

cover agents or informants who participate in a sting opera-

tion and telephone companies that place a wiretap on a line

at federal behest, but also cooperating witnesses who aid a

federal investigation by providing needed information. See

Act of Feb. 4, 1815, ch. 31, §§ 7, 8, 3 Stat. 198 (an “informer”

providing information leading to forfeiture is a person “aid-

ing or assisting” a customs officer in the enforcement of the

customs laws).

Because the federal officer removal statute now extends

to all federal officers, and is .:ot limited to those who engage

in law enforcement activity, however, private-party removal

under the statute is not limited to those private parties who

provide aid to federal law enforcement officers. Rather, the

right of removal extends to any private person who assists

a federal officer in performing the officer’s duties, regard-

less of the nature of those duties.

Thus, a surgeon who is subject to the authority of offi-

cers in the Veterans Administration (VA) acts under a fed-

eral officer when he performs surgery at a VA hospital.

Noble v. Employers Ins. of WAUSAU, 555 F.2d 1257, 1258-

1259 (5th Cir. 1977). Such a person aids VA officers in car-

rying out their duty to provide health care to veterans.

Similarly, a bank that is designated as a financial agent

of the United States to provide banking services on a mili-

tary base and that is subject to the direction of the Secre-

tary of the Treasury regarding the services to be provided

is properly characterized as acting under a federal officer

in providing those services. Texas v. National Bank of

Commerce, 290 F.2d 229, 231 (5th Cir.), cert. denied, 368

U.S. 832 (1961). Such a bank, while not engaged in law en-

forcement, is therefore entitled to remove to federal court

an action filed in state court claiming that its provision of

banking services violates state law. /bid.

Finally, a private citizen delegated authority to inspect

aircraft by the Administrator of the Federal Aviation Ad-

ministration (FAA) acts under a federal officer in conduct-

ing such an inspection and issuing a certificate of airworthi-

ness. Magnin v. Teledyne Cont’ Motors, 91 F. 3d 1424

(11th Cir. 1996). That is true regardless of whether the

private individual is viewed as performing a law enforce-

ment role or a safety protection role. The critical point is

that the individual acts on behalf of the FAA Administrator

in conducting the inspection.

In each of the foregoing cases, the defendant was acting

on behalf of or otherwise assisting a federal officer in the

performance of the officer’s duties, and the overall activity

at issue was subject to some form of federal guidance, di-

rection, or oversight. In those circumstances, a private

party is properly characterized as acting under a federal

officer within the meaning of the federal officer removal

statute. Such conduct is far removed from the actions of a

party who does not directly assist in a federal officer’s du-

ties, but is merely subject to a pervasive federal regulatory

regime.

E. The Court Of Appeals’ Reasons For Holding That Respon-

dent Was Acting Under A Federal Officer In Marketing

“Light” Cigarettes Are Unpersuasive

In contrast to the foregoing cases, the decision below

reflects a misapplication of the federal officer removal stat-

ute. Section 1442(a)(1) does not remotely encompass to-

bacco manufacturers that market their cigarettes as

“light,” because in so doing the tobacco companies are not

acting on behalf of federal officers or otherwise assisting

federal officers in carrying out their duties. Respondent

hardly markets “light” cigarettes on the FTC’s behalf; it

does so solely in furtherance of its own economic interest.

Nor does it matter that respondent pursues its economic

interest in alleged conformity with a federal regulatory safe

harbor. “Compliance is just what the law expects.” Wall-

ing Vv. Harnischfeger Corp., 242 F.2d 712, 713 (7th Cir.

1957). Mere compliance with federal law does not trans-

form a private party that is acting solely to further its own

economic interests into a party that is acting on behalf of or

otherwise assisting federal officers in carrying out their —

duties.

The court of appeals gave three reasons for holding that

respondent was acting under a federal officer in marketing

light cigarettes. None is persuasive.

1. First, the court of appeals sought to rely on cases

holding that federal contractors act under a federal officer

when they perform their work in accordance with detailed

and specific contract standards. Pet. App. 6a-8a. But there

is a fundamental difference between federal contractors

and respondent. Federal contractors supply products or

services that the government affirmatively seeks and de-

sires to support its own operations, and, in so doing, they

perform tasks that the government would otherwise have

» »erform itself through its own employees. Accordingly,

le federal contractors undoubtedly act for their own

commercial gain, in appropriate circumstances, they may

also reasonably be viewed as assisting federal officers in

carrying out their official duties within the meaning of the

federal officer removal statute.'

Tobacco companies that market “light” cigarettes do not

share the relevant characteristics of government contrac-

tors. They are not providing a product that the government

affirmatively seeks for its own purposes, and they are not

producing a product or service that the government would

otherwise be forced to produce for itself through its own

employees. Instead, they are acting solely for their own

commercial gain. Tobacco companies marketing “light”

cigarettes therefore cannot reasonably be viewed as acting

on behalf of or otherwise assisting federal officers in carry-

ing out their official duties.

2. Second, the court concluded that it was required by

this Court’s decisions in Willingham, 395 U.S. at 407, and

Colorado v. Symes, 286 U.S. 510, 517 (1932), to give the

’ In Logue v. United States, 412 U.S. 521 (1973), this Court held that

employees of federal government contractors are not employees of the

United States for purposes of federal tort liability under the Federal

Tort Claims Act (FTCA), 28 U.S.C. 1346(b), and are not “persons acting

on behalf of a federal agency in an official capacity” for purposes of 28

U.S.C. 2671, when (as is generally the case) the federal government

lacks authority to control the day-to-day physical activities of the con-

tractor’s employees. A determination that a particular government

contractor was assisting a federal officer in carrying out the officer's

duties by, for example, supplying goods or services in furtherance of

those duties would not support a determination that the contractor's

employees were employees of the United States for purposes of the

FTCA, 28 U.S.C. 2671, or any other purposes, because the category of

persons acting under a federal officer is not limited to those persons

whose day-to-day activities are controlled by a federal officer. The key

criterion under Section 1442(a)(1) is instead whether the private person

is assisting the federal officer in the performance of the officer’s duties,

and generalized federal oversight or guidance (as opposed to specific

and detailed day-to-day control) is sufficient to justify removal when

that key criterion is satisfied.

federal officer removal statute “a broad and liberal inter-

pretation.” Pet. App. 12a-13a. The federal government

does not have a quarrel with those salutary principles, but

they provide no basis for extending the statute to entities

that do not help federal officials perform their duties, but

rather are the subjects of pervasive federal regulation.

Moreover, the federal officer removal statute must not only

be interpreted in keeping with its important purpose of

protecting federal officials and those who assist them, but

must also be informed by the statute’s historical anteced-

ents, Peacock, 384 U.S. at 814-815, and the principle that

the Court will not lightly assume that Congress has ef-

fected a potentially dramatic shift in the federal-state bal-

ance. Grable, 545 U.S. at 319; Holmes Group, 535 U.S. at

832. For the reasons previously discussed, when the statu-

tory text is interpreted in light of those considerations, it

compels the conclusion that a person acts under a federal

officer only when he acts on behalf of or otherwise assists

the officer in carrying out official duties—a standard that

respondent cannot satisfy.

3. Ultimately, the court of appeals bottomed its decision

on its assessment that respondent marketed its “light ciga-

rettes in compliance with detailed and specific FTC regula-

tion. Pet. App. 6a-13a. For reasons discussed in this brief

(p. 21, supra), and at greater length in the government’s

brief at the petition stage (Br. 8-12), the court of appeals’

assessment is incorrect. Far from issuing detailed and spe-

cific regulations that govern respondent’s marketing of

light cigarettes, the FTC has not issued any such regula-

tions at all. Of particular importance, the FTC has neither

requested nor required tobacco companies to describe their

products as “light.”

More fundamentally, for the reasons discussed, the court

of appeals’ exclusive focus on the presence or absence of

detailed and specific federal regulatory control is both over-

and under-inclusive. The federal officer removal statute

does not permit removal when a private commercial actor

merely pursues its own economic interests, even when it

does so in accordance with detailed and specific government

regulations. Instead, private-party removal is permissible

only when the private party acts on behalf of or otherwise

assists a federal officer in carrying out that officer’s official

duties—a category of private conduct that will necessarily

entail some form of federal oversight, but not necessarily

(or even usually) “detailed and specific” control. Because

respondent marketed “light” cigarettes for its own com-

mercial gain and not to assist federal officers in carrying

out their official duties, it had no right to remove peti-

tioner’s state law claim to federal court.

CONCLUSION

The judgment of the court of appeals should be reversed. -—__

Respectfully submitted.

PAUL D. CLEMENT