# Amicus Curiae Brief — Watson v. Philip Morris Companies, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0251%3A17 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2007 - **Citation:** 551 U.S. 142 ## Text Vos iB) ‘meaner ’ i ‘ ~~ ! we , - b nF rr ee _-- - - ~~ SUPRE WE ous No. 05-1284 '—2== fart IN THE Supreme Court of the Gnited States LISA WATSON, ET AL..- Petitioners, Vv. PHILIP MORRIS COMPANIES, INC., ET AL.. Respondents. On Writ of Certiorari to the United States Court of Appeals for the Eighth Circuit BRIEF OF PUBLIC CITIZEN, INC., AARP, NATIONAL ASSOCIATION OF CONSUMER ADVOCATES, U.S. PIRG, CONSUMER FEDERATION OF CALIFORNIA, CONGRESS OF CALIFORNIA SENIORS, AND PUBLIC HEALTH ADVOCACY INSTITUTE, INC., AS AMICI CURIAE IN SUPPORT OF PETITIONERS STACY CANAN SCOTT L. NELSON BRUCE VIGNERY Counsel of Record AARP FOUNDATION BRIAN WOLFMAN MICHAEL SCHUSTER PUBLIC CITIZEN LITIGATION AARP GROUP 601 E Street, N.W. 1600 20th Street. N.W. Washington, D.C. 20049 ~ Washington, D.C. 20009 (202) 434-2130 (202) 588-1000 Attorneys for Amici Curiae February 2007 QUESTION PRESENTED Whether a private corporation engaged in marketing ciga- rettes is a “person acting under [a federal] officer” and is act- ing “under color of such office” for purposes of 28 U.S.C. § 1442(a)(1), entitling the corporation to remove to federal court a civil action brought in state court under state law, solely because the corporation’s actions were influenced by federal regulatory authorities. TABLE OF CONTENTS ee II sniesssscecsnonssiaciuinnsihessipaetasiilitsitessioniaia i SRE Ce FUP EEN ciccetscccicinsstsncsicciiitstaiinatsmsensedennts ill Se Te Ad GI vccinccecescensisesiccnsecvintaiinieannsotiis l INTRODUCTION AND SUMMARY OF IEE siissielaiidetiichhsdhiaatalicditeceatabatesincnieinitipssiniicipiincedenitia 4 SPT ei cechcieieeiincilteedbiihteenihittitelpheiiatienididcincesbaadonianiisiiaditen 6 I. The Corporate Defendants Are Not “Persons” Entitled To Invoke Federal Officer Removal. .................. 6 Il. A Private Business, Even If Subject to Federal Regulation, Does Not Act “Under” a Federal Officer or Perform “Any Act Under Color of Such Office” When It Is Not Enforcing or Executing ITE sncsisssssittesiecahianilienndlitatiiinitniecaedeblaeaeaiiaiabnanei 10 Ill. The FTC’s “Regulation” of Cigarettes Has Never Been Uniquely or Even Unusually Extensive................. 17 A. The FTC’s Weak “Regulation” of the Cigarette Industry Did Not Compe] Philip Morris to Take the Actions for Which It Has Been Sued.................. 17 B. Other Industries Face Much More Extensive, Specific, and Formal Regulation than Do Ciga- rette Manufacturers Such as Philip Mormis. .............. 20 C. Whether Broadly or Narrowly Applied, the Eighth Circuit’s Ruling Will Have Mischievous RIT ..ciisnsteasiaianseiiecinietiiipnlettaeindibdestinasammaainaite 26 Se hsiciiicntiniiesicciieietieiiniacaanniaiieapichaaiinniinidgpiteiiietiteia 28 ill TABLE OF AUTHORITIES Cases: In re “Agent Orange,” Product Liability Litigation, 304 F. Supp. 2d 442 (E.D.N.Y. 2004) oo... eeceseeseeeeeees 9 Adams v. United States, 420 F.3d 1049 (9th Cir. Sree eiasssiaciteinnialetececsteisteshinaileiiinelaiabaiiabeitintainiebianiniatiibii’ 8 Arizona v. Manypenny, 451 U.S. 232 (1981)... eee 4,11 Bakalis v. Crossland Sav. Bank, 781 F. Supp. 140 RET Tis, UTE ssostiiscisaciesitadatiniacbbietnangtaniiiieninnntiaiiint 15 Blum v. Yaretsky, 457 U.S. 991 (1982).......cccccseceeseeeseeeeeeees 14 Brown vy. Philip Morris Inc., 250 F.3d 789 (3d Cir. ee isesecdaicliniaihdiesinsnpiasinidstasltasinsitisnbensenpiinaiiahiaibiabiniieiedii 13,17 Brown & Williamson Tobacco Corp. v. Wigand, 913 F. Supp. 530 (W.D. Ky. 1996)..............csccssscossssoeee 16 C.H. v. American Red Cross, 684 F. Supp. 1018 SAEs SENG: UTI ncccsiesoienniidacenesenpeiisinapmiadeciatceanieiesmimetivae 6 Cob» v. Georgia Power Co., 757 F.2d 1248 (11th I, See eisiitsiicniecstinicesnalaaihechisiieiuiniininitvipbilaltiansidiganitacmiiwaned 14 Craft v. Philip Morris Companies, Inc., 2006 WL. 744415 (E.D. Mo. Mar. 17, 2006). ...........cccccsscesssesseeeees 16 FTC v. Brown & Williamson Tobacco Corp., Fe ee is Ts I ticecincnacennnssnssecgassnteninsoninee 19 Gay v. Ruff, 292 U.S. 25 (1934)...ccccccccccscesscssscesseceeseesees 12, 13 Gensplit Fin. Corp. v. Foreign Credit Ins. Ass'n, 616 F. Supp. 1504 (E.D. Wis. 1985)......... ccc eesesceeeeeeees 6 International Primate Prot. League v. Adminis- trators of Tulane Educ. Fund, 500 U.S. 72 iv Jackson v. Metropolitan Edison Co., 419 U.S. 345 Sateen cada alae ai hdl 14 Johnson v. Wells Fargo & Co., 98 F. 3 (C.C. Cal. ee adie emeeblieitaiaiineiaaiciedpbiiaibiietitdidniigal 15 King v. Provident Bank, 428 F. Supp. 2d 1226 aN aE cerviishicinsitsbsenaapiatinssnibupiinbdicncibensieitndidbninaniben 26 Krangel v. Crown, 791 F. Supp. 1436 (S.D. Cal. ENE nN TRO 6 Lippoldt v. Cole, 468 F.3d 1204 (10th Cir. 2006)................... 8 Maryland v. Soper (No. 1), 270 U.S. 9 (1926)........:000008 11,12 Maryland v. Soper (No. 2), 270 U.S. 36 (1926)........ 11, 12, 13 Maryland v. Soper (No. 3), 270 U.S. 44 (1926)........:cccecseee 13 Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) .........ccccceeeeees 20 Mesa v. California, 489 U.S. 121 (1989)... cc eeeeeeeeeeeee 4,7 Mignona v. Sair Aviation, Inc., 937 F.2d 37 (2d Cir. ; SITUTTT cinsasnitietieiedibdeiiataioatatiieidcadiiisiaapddeienpiidaieiasibatianiininiapinideiill 9 New Jersey v. Moriarity, 268 F. Supp. 546 (D.N.J. Sanat i sictiiisenieninebceiiedeloteansacutiiaudpuicalibepeaecisiaianasdannineniaiie 7 Parks v. Guidant Corp., 402 F. Supp. 2d 964 (N.D. Sah MIE cetsieshthhesshicailpdecearidapaibieetiiaieiebicietinibannietnebeisivencennnii 26 Rendell-Baker v. Kohn, 457 U.S. 830 (1982), ....ccccscecseesees 14 Roche v. American Red Cross, 680 F. Supp. 449 (D. NI, MU die iica latte diaaa i ialnihitnennitibainidi 6 Ryan v. Dow Chem. Co., 781 F. Supp. 934 Ne aU eissirlseniliniteninihanipibiniaeiasiioamidneiadsaeniniii 7,8 Screws v. United States, 325 U.S. 91 (1945) 0.0... eeeceeeeeeees 14 Single Moms, Inc. v. Montana Power Co., 331 F.3d 743 (9th Cir. 2003), cert. denied, 540 U.S. 1180 ise i intsintbisinsteliniiniatadiaisteietiossenenininiianpiiiniiontminsieshinennitenen 14 Vv Sutton v. Providence St. Joseph Medical Center, BOS FS SIS CO Car. FOB) cccccnscscssssscrnersensevnicsnmnesnvunanl 14 Tennessee v. Davis, 100 U.S. 257 (1880) ........ccceeeeeeeeeeeeeees 4,6 Tremblay v. Philip Morris, Inc., 23\ F. Supp. 2d SES GRICE, BOD eevecivininnsustcitiiiinnnniaaaeaiaal 16 United States v. Philip Morris, 263 F. Supp. 2d 72 GE,. GED) Indeed, Primate Protection suggests that the 1948 enacting Con- gress may have even had a more limited definition of “officer of the United States” in mind, see 500 U.S. at 81, because at that time it was not clear that the phrase encompassed officers of certain independent agen- cies. Thus, it was all the more essential to add the word “person” to en- sure coverage of employecs and agents of independent agencies. 9 those whose only qualification for “officer” status is that they are regulated by (or doing business with) the government. Although this Court has never addressed a case involving the application of the statute to a corporation, in Primate Protection the Court demonstrated the limits of the statute in holding that the term “officer ... or person acting under him” did not apply even to federal agencies. 500 U.S. at 82-84. In so holding, the Court emphasized that Congress had limited the statute to “individual federal officers” (as opposed to agencies) because it was individual federal officers and em- ployers who were being prosecuted and sued in state courts, and whom Congress wanted to protect from such actions. /d. at 85. The Court further reasoned that “individual federal officers” had a greater need for “the protection of a federal forum in which to raise their federal defenses.” /d. at 86. The Court’s reasoning strongly suggests that corporations, like agencies, fall outside the concerns that led Congress to pro- vide protection for vulnerable individuals against potentially hostile state courts.* Following Primate Protection, Congress amended § 1442(a)(1) to permit the United States and federal agencies, in addition to federal officers and persons acting under them, to invoke removal. See Federal Courts Improvement Act of 1996, Pub. L. No. 104-317, § 206, 110 Stat. 3847, 3850. Al- though one court has suggested that “Congress’s amendment of the statute to emphasize its broad scope supports the con- clusion that ‘person’ encompasses more than mere individu- als,” In re “Agent Orange,” Product Liability Litigation, 304 F. Supp. 2d 442, 447 (E.D.N.Y. 2004), the way Congress amended the statute in fact supports exactly the opposite in- * Cf Mignona v. Sair Aviation, Inc., 937 F.2d 37, 41 (2d Cir. 1991) (holding, in the aftermath of Primate Protection, that a nonappropnated fund instrumentality of the federal government was not entitled to remove cases against it, because, as “an impersonal entity, [it] is not an ‘officer’ of the United States”). 10 ference. Congress did not bring agencies within the ambit of the statute by changing the definition of “person,” which the Court in Primate Protection had held did not encompass them. Rather, Congress left in place the statutory protection for officers and persons acting under them, and added the United States and federal agencies as a separate category of entities that could invoke the statute. Nothing in Congress’s changes to the statute reflects a broader intent to alter, let alone expand, the definition of “person” or to benefit non- human entities other than the United States and its agencies. Thus, if the statute applies to corporations because they are “persons,” it must also have done so before 1996, when actual agencies of the United States were held by this Court to be prohibited from invoking the statute—an incongruous result, to say the least. In short, the history of the statute con- tains no suggestion that Congress intended to grant to corpo- rations and other non-human entities an entitlement that, until 1996, was not even available to the government’s own agen- cies; and the 1996 amendment of the statute in no way indi- cates that in extending that entitlement to agencies, Congress also gave it to corporations. Il. A Private Business, Even If Subject to Federal Regulation, Does Not Act “Under” a Federal Officer or Perform “Any Act Under Color of Such Office” When It Is Not Enforcing or Executing Federal Law. On its face, the federal officer removal statute requires not only that the actor who is sued be a goveriunent officer Or person acting directly under an officer, but also that the action for which the defendant is sued be an official one— that is, an act “under color of such office.” The under-color- of-office requirement is a critical limitation of the statute, integral to its core purpose of providing for removal “broad enough to cover all cases where federal officers can raise a colorable defense arising out of their duty to enforce federal law.” Willingham, 395 U.S. at 406-07 (emphasis added); see 1] also Arizona v. Manypenny, 451 U.S. at 241 (“{R]Jemoval under § 1442(a)(1) and its predecessor statutes was meant to ensure a federal forum in any case where a federal official is _ entitled to raise a defense arising out of his official duties.”’) (emphasis added). The Court emphasized this critical limitation in two of its leading decisions applying the statute, Maryland v. Soper (No. 1), 270 U.S. 9 (1926), and Maryland v. Soper (No. 2), 270 U.S. 36 (1926). The Soper cases, like Davis, arose from the efforts of federal revenue agents to break up an illegal still, this one near the hamlet of Madonna, Maryland. After a futile pursuit of a group of moonshincrs, the agents destroyed the still and, as they left the site, found a mortally wounded man lying beside a path. Although they claimed not to know how the man had been killed, the agents (and their chauffeur) were arrested by the local sheriff and indicted for murder and conspiracy to obstruct justice by falsely denying any knowl- edge of the circumstances leading to the victim’s death. The officers invoked the predecessor to § 1442(a)(1) to remove the prosecutions to the U.S. District Court for the District of Maryland, which denied a motion to remand. This Court re- versed as to both the murder and conspiracy prosecutions. In Soper (No. 1), addressing the murder prosecution, the Court held that the defendants’ removal petition was defi- cient because it failed to explain in any manner how the al- leged murder constituted an action “under color of ... office” other than that the death occurred during a time when the agents were engaged in performing their duty of enforcing the prohibition laws. 270 U.S. at 35. The Court emphasized that the statute required more: The [action] to be removed under the section must have been instituted “on account of’ acts done by the defen- dant as a federal officer under color of his office .... There must be causal connection between what the offi- cer has done under asserted federal authority and the ‘ state prosecution. It must appear that the prosecution of 12 him for whatever offense has arisen out of the acts done by him under color of federal authority and in en- forcement of federal law .... Id. at 33 (emphasis added). Because the defendants’ petition did not state that “whatever was done by them leading to the prosecution was done under color of their federal official duty,” and thus left open the possibility that they were being prosecuted for a murder not committed under color of federal authority, id. at 35, the Court found that, unless the petition could be amended to rectify this deficiency, the case must be remanded. Having so held with respect to the murder charges, the Court in Soper (No. 2) made even shorter shrift of the claim that the prosecution for conspiracy to obstruct justice was removable. The Court held that the defendants’ responses to the criminal investigation by state authorities were not “acts under federal authority” because they were not “closely con- nected with, and included in, the attempted enforcement of the federal law,” nor were the officers acting “in performance of their duty as officers of the United States” when they gave the allegedly false evidence. 270 U.S. at 43. Because the prosecution was not for “acts done by these defendants solely in pursuance of their federal authority,” the Court held that a “fair construction” of the statute did not permit removal. /d. at 44. Similarly, in Gay v. Ruff, 292 U.S. 25 (1934), the Court enforced the limit placed on removal by the statute’s re- quirement that an action be based on acts “under color of of- fice.” Gay concerned a 1916 amendment to the statute that provided that any “officer of the courts of the United States” could remove an action brought against him “for or on ac- * In a third case, Marviand v. Soper (No. 3), 270 U.S. 44 (1926), the Court also applied Soper (No. 2) to require remand of a perjury prosecu- tion against one of the defendants. 13 count of any act done under color of his office or in the per- formance of his duties as such officer.” Jd. at 27.° The re- moved action was a lawsuit brought against the receiver of a railroad (who had been appointed by and was an officer of a federal court) alleging that the railroad’s negligence had re- sulted in the death of the plaintiff's son. Emphasizing that the statute’s purpose was to protect officers engaged in the en- forcement of federal law and not to produce a wholesale ex- pansion of federal jurisdiction over otherwise non-federal claims, see id. at 31-35, Justice Brandeis’ opinion held that the claim must be remanded to state court, and rested its holding squarely on the “under color of office” requirement: “A suit for damages for an injury resulting from negligent operation of a train is not, within the meaning of [the federal officer removal statute], a suit ‘for or on account of any act done under color of his (the receiver’s) office.” Jd. at 39. For precisely the same reason, a suit predicated on inju- ries resulting from Philip Morris’s design, marketing and sale of so-called “light” cigarettes is not brought “for any act un- der color of [federal] office” within the meaning of § 1442(a)(1). As Philip Morris itself has successfully argued elsewhere, whatever sclling cigarettes may be, it is not an activity performed under color of federal office. See Brown v. Philip Morris Inc., 250 F.3d 789, 801 (3d Cir. 2001) (accept- ing Philip Morris’ argument that federal regulation of its marketing practices did not make its actions “under color of federal law” for purposes of a Bivens action). And Soper (No. 2) leaves no doubt that misleading the public as to the health risks associated with “light” cigarettes falls well outside the furthest possible bounds of action under color of federal of- fice. Nor can Philip Morris’s purely self-interested private conduct be brought within the realm of action “under color of * The provision is now codified at 28 U.S.C. § 1442(a)(3). 14 office” by the federal regulation to which it was (supposedly) subject. This Court has made clear that even “extensive” regulation of the activities of a business does not make its actions under color of law; rather, a private person acts under color of law only when its action “may be fairly treated as that of the [government] itself.” Jackson v. Metropolitan Edi- son Co., 419 U.S. 345, 350 (1974); accord Blum v. Yaretsky, 457 U.S. 991 (1982); see also Single Moms, Inc. v. Moniana Power Co., 331 F.3d 743, 748 (9th Cir. 2003) (“That a pri- vate entity is regulated by government does not transform that private entity’s conduct into state action.”); Sutton v. Providence St. Joseph Medical Center, 192 F.3d 826, 837-39 (9th Cir. 1999) (a private entity does not act “under color of law” merely because it acts under compulsion of government regulation); Cobb v. Georgia Power Co., 757 F.2d 1248 (11th Cir. 1985) (heavy regulation of a private entity does not make its actions “under color of law”). Indeed, this Court’s precedents suggest that, if anything, the phrase “under color of such office” in the removal statute is even more limited than the “under color of law,” which is used in 42 U.S.C. § 1983 and elsewhere to describe conduct that qualifies as government action for constitutional pur- poses. Thus, under § 1983, action “under color of law” in- cludes action “under pretense of law,” but, as the Soper hold- ings illustrate, the under color of office requirement in the removal statute requires an exercise of authority actually con- ferred by office. See Screws v. United States, 325 U.S. 91, 111-12 (1945) (opinion of Douglas, J.). A fortiori, if regula- ’ Similarly, that a business is operating under government contracts whose specifications it must meet does not transform its conduct into government action. As this Court has stated, “many private corpora- tions[’] ... business depends primarily on contracts to build roads, bridges, dams, ships, or submarines for the government. Acts of such private contractors do not become acts of the government by reason of their significant or even total engagement in performing public con- tracts.” Rendell-Baker v. Kohn, 457 U.S. 830, 841 (1982). 15 tory compulsion is not enough to make private action “under color of law,” it also cannot bring private conduct within the narrower category of action “under color of [federal] office” within the meaning of 28 U.S.C. § 1442(a)(1). There is all the difference in the world between merely complying with federal regulations and stepping into the shoes of a federal regulator acting under color of his office. As one early deci- sion under the removal statute put it: The purpose of the statute is to protect the revenue offi- cers of the government in the line of their official du- ties, and those who are employed to act under them in the performance of such duties; but, further than pro- viding this necessary protection to the administration of its revenues, the federal government has no interest in the business affairs of the people incidentally brought within the range of the tariff system. Johnson v. Wells Fargo & Co., 98 F. 3, 8 (C.C. Cal. 1899).® Rather, removal of suits based on actions taken by federal officers or their subordinates under color of office must be limited to cases where the removing defendant was “effec- tively an agent or employee of the government” performing “official functions” on its behalf. Virden v. Altria Group, Inc., 304 F. Supp. 2d 832, 846, 845 (N.D. W. Va. 2004); see also Bakalis v. Crossland Sav. Bank, 781 F. Supp. 140, 145 (E.D.N.Y. 1991) (a defendant invoking the removal statute must be so “intimately involved with government functions as to occupy essentially the position of an employee”); * In Johnson, the plaintiff sued Wells Fargo, a common carrier, for refusing to deliver a package for which the plaiatiff had refused to pur- chase a one-cent stamp that federal law required Wells Fargo to affix to each item shipped. Wells Fargo removed the case to federal court, argu- ing that in requiring the purchase of the stamp, it was acting »nder the direction of a federal revenue officer. The federal court rejected Wells Fargo’s argument that its mere compliance with the federal regulatory requirement made its action one under color of federal office. 16 Brown & Williamson Tobacco Corp. v. Wigand, 913 F. Supp. 530, 533 (W.D. Ky. 1996) (tobacco whistleblower Jeffrey Wigand could not remove an action brought against him for giving grand jury testimony because “he has not been di- rected to perform official functions as an officer or agent of the government”), The requirement that a removing defendant act under of- ficial direction in the performance of an official function thus excludes from the coverage of the statute entities that are merely conducting their own private business under regula- tory or other requirements imposed by the federal govern- ment. See Virden, 304 F. Supp. 2d at 844-45 (citing cases). Philip Morris’s conduct in marketing “light” cigarettes was not in any way performed on behalf of the federal govern- ment or as_n exercise of its authority; hence it was not action “under color of [federal] office.” The intrinsically private nature of Philip Morris’s conduct no doubt explains why Philip Morris discovered that it was “acting under” a federal officer so late in the game (particu- larly in light of the company’s assertion that there is a long and unique history of federal regulation of its activities). The first reported decision in a case where a cigarette company claimed federal officer removal did not come until 2002, see Tremblay v. Philip Morris, Inc., 231 F. Supp. 2d 411 (D.N.H. 2002), and even in the Eighth Circuit some of Philip Morris’s attempted removals on this ground have recently been held untimely. Craft v. Philip Morris Companies, Inc., 2006 WL 744415 (E.D. Mo. Mar. 17, 2006). And as noted above, when it suited Philip Morris’s interests in other litigation, the com- pany steadfastly denied that its actions could be equated to those of a government officer acting under color of law. See 17 Brown v. Philip-Morris, 250 F.3d at 801. Philip Morris was right then; it is wrong now.” Ii1.The FTC’s “Regulation” of Cigarettes Has Never Been Uniquely or Even Unusually Extensive. Recognizing that “mere participation in a regulated in- dustry is insufficient” to support removal, Br. in Opp. 14, Philip Morris has attempted to defend the Eighth Circuit's decision on the ground that the regulation to which it was subject was so “unusual” and even “unique” as to differenti- ate Philip Morris from other regulated businesses and justify a special removal rule for tobacco cases. Br. in Opp. 10. But if regulation is not enough to transform a private enterprise’s conduct of its business into action “under color of federal of- fice,” it does not matter whether that regulation is more or less extensive. And in any event, the Eighth Circuit’s charac- terization of the regulation of cigarette companies as “un- precedented,” on which Philip Morris relies, Br. in Opp. 18, is baseless. Left standing, the decision below will lead either to a potentially vast expansion of federal officer removal, as other more heavily regulated businesses seek the same bene- fit afforded Philip Morris by the Eighth Circuit, or to an un- principled special rule benefiting only the tobacco industry. A. The FTC’s Weak “Regulation” of the Cigarette Industry Did Not Compel Philip Morris to Take the Actions for Which It Has Been Sued. Philip Morris, echoing the Eighth Circuit’s opinion, is long on adjectives characterizing the supposedly extensive regulation to which it was subjected by the FTC. See Br. in ” Indeed, accepting the company’s belated characterization of regu- lated business activity as action “under color of office” would, especially if extended to other industries, render legal battles that have raged in re- cent years over other grounds for removal such as “complete preemption” largely beside the point as regulated industries rushed to invoke this new basis for federal} jurisdiction. See infra pp. 19-27. 18 Opp. 3-6. The undisputed, public-record facts, however, fall far short of justifying those characterizations. The critical points are: e First, and most importantly, whatever the FTC may or may not have “directed” Philip Morris to do, Philip Morris does not claim—because it cannot—tuat the FTC ever required it to sell “low tar” cigarettes, or compelled it to call its cigarettes “lights,” or otherwise ordered it to use advertising that would mislead con- sumers by suggesting, on the basis of measured tar and nicotine levels, that “light” cigarettes are somehow healthier than “regular” cigarettes. e The United States is currently suing Philip Morris and other cigarette manufacturers for precisely the conduct that Philip Morris insists in this case it undertook as an agent of the federal government acting under color of federal office. The district court in that case has rejected the defendants’ argument that they were merely follow- ing FTC mandates, noting that the advertisements in which they suggested that “light” cigarettes were less hazardous “were certainly not mandated by the FTC.” United States v. Philip Morris, 263 F. Supp. 2d 72, 81 (D.D.C. 2003) (emphasis added). e The FTC has never promulgated regulations requiring cigarette makers to test the tar and nicotine levels of cigarettes, let alone regulations defining how such tests must be conducted, how the results must be disclosed, - or how test results may be used in cigarette advertising. e The major cigarette makers’ adherence to the FIC method of testing cigarettes was the result of a volun- tary agreement ‘o stave off formal regulation and/or en- forcement actions under the FTC’s general authority to sanction “unfair or deceptive acts or practices in or af- fecting commerce” under § 5 of the FTC Act, 15 U.S.C. 19 § 45(a). See FTC, Cigarette Testing: Request for Pub- lic Comment, 62 Fed. Reg. 48,158 (Sept. 12, 1997). e Absent agreement by the manufacturers to use the FTC’s test method, the FTC could not, as a matter of law, foreclose use of other methods unless it could prove that advertising their results wceuld be unfair or deceptive under the FTC Act. As the D.C. Circuit held in FTC v. Brown & Williamson Tobacco Corp., 778 F.2d 35, 44 (D.C. Cir. 1985), “[b]ecause the FTC has not adopted its system of testing pursuant to a Trade Regulation Rule under section 18 of the FTC Act, 15 U.S.C. § 57a (1982), one cannot say that the FTC sys- tem constitutes the only acceptable one available for measuring milligrams of tar per cigarette.” Although Philip Morris, following the Eighth Circuit’s lead, insists that the FTC “‘formally defined’ ‘low tar’ cigarettes as those measuring 15 milligrams or less in tar according to the FTC Method,” Br. in Opp. 5, nei- ther Philip Morris nor the court below can cite any FTC - regulation or other “formal” action of the Commission embodying such a definition. As the Commission itself has stated, “Cigarette manufacturers use a number of descriptive terms (such as ‘low tar,’ ‘light,’ ‘medium,’ ‘extra light,’ ‘ultra light,’ ‘ultra low,’ and ‘ultima’) in advertising “nd labeling information about their ciga- rettes. ... There are no official definitions for these terms but they appear to be used by the industry to re- flect ranges of FTC tar ratings.” FTC, Cigarette Test- ing: Request for Public Comment, 62 Fed. Reg. at 48,163 (emphasis added). The most that can be said is that the FTC at one point followed an informe! enforcement policy of not taking action against cigarette companies that advertised ciga- rettes as “light” or “low tar” based on test results using the Cambridge method; but as Philip Morris itself ac- knowledges, the Commission has more recently begun 20 an investigation, as yet unresolved, of whether such ad- vertising is deceptive. Br. in Opp. 6. B. Other Industries Face Much More Extensive, Specific, and Formal Regulation than Do Ciga- rette Manufacturers Such as Philip Morris. The “regulation” of cigarette testing and advertising by the FT'C—which, as explained above, is virtually non- existent—is by no means “unique,” “extraordinary” or “un- usual” in its intrusiveness. Federal regulatory actions are typically much more formal and prescriptive than the FTC’s actions regarding cigarettes. And although it may have been “unprecedented” for the FTC to involve itself in product test- ing as it did with cigarettes (Br. in Opp. 18), detailed federal product-testing mandates are common, and are usually set forth in regulations with the force of law rather than adopted informally and by agreement with regulated companies, as in the case of the FTC’s cigarette testing regime. The Food and Drug Administration’s regulation of drugs and medical devices demonstrates the fallacy of the argument that the FTC’s actions concerning cigarettes constituted an unusually extensive regulatory scheme. Unlike cigarette makers, drug and medical device manufacturers must comply with detailed, legally enforceable federal standards governing the approval and marketing of new drugs and medical de- vices. Once approved, drugs and devices are subject to for- mal regulations that incorporate the formulation and design originally developed by the manufacturer, as well as the pre- cise contents of their labels; other regulations address manu- facturing practices to which their makers must conform. See generally Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996). The FDA’s manufacturing standards specify how drug and device manufacturers must audit and inspect their manufacturing facilities (see, e.g., 21 C.F.R. Part 820), and the agency itself conducts inspections of manufacturing facilities pursuant to its statutory authority under 21 U.S.C. § 374(a). The regula- tory scheme for drugs and medical devices differs from the 21 FTC’s cigarette testing program both in that it involves ‘regu- lations with the force of law, and in that it directly regulates product design and production. In some cases, FDA regulations also set forth detailed product testing requirements that manufacturers are legally required to follow. For instance, the FDA has promulgated a regulation prescribing in detail how surgical gloves must be tested for leaks, which calls not only for testing by manufac- turers, but also for sampling and testing by the agency itself. 21 C.F.R. § 800.20. Unlike the FTC’s test program for ciga- rettes, the FDA’s testing has teeth: gloves that fail are “adul- terated within the meaning of section 501(c) of the Federal Food, Drug, and Cosmetic Act, and are subject to regulatory action, such as detention ... and seizure ....” Jd. § 800.20(d). The FDA’s glove regulation is by no means unique. Other FDA regulations provide detailed testing and labeling requirements for tampons, 21 C.F.R. § 801.430, impact- resistant eyeglass lenses, id. § 801.410, hearing aids, id. § 801.420, and condoms. id. § 801.435. The tampon regula- tion, for example, requires manufacturers to use an absor- bency test conforming to the detailed descriptions and dia- grams set forth in the regulatory text, and to report the results on package labels using specifically defined terms. Again, the regulation has the force of law, and any noncomplying tampons are “misbranded” within the meaning of the Food, Drug, and Cosmetic Act. Foods, in sharp contrast to cigarettes, are subject to sig- nificant, mandatory federal regulation. Food additives (unlike cigarette ingredients) are subject to detailed federal regula- tions, which require formal FDA approval of the use of any additive not generally recognized as safe. See 21 C.F.R. Parts 170, 171. Manufacturers secking approval of a food additive must provide detailed scientific information supporting the claim that it is safe for human consumption. See 21 C.F.R. 171.1. Food packages (unlike cigarette packages) must list their ingredients, provide nutritional information and comply 22 with other mandatory labeling requirements. See 21 C.F.R. Part 101. And federal agencies, including the FDA and the Agriculture Department’s Food Safety and Inspection Ser- vice, conduct mandatory, not voluntary, inspection and test- ing programs to determine the safety of meat, poultry, eggs, seafood, and other food products. And unlike cigarettes, foods are subject to seizure by federal authorities if testing or inspection reveals them to be adulterated. See generally www.fsis.usda.gov/Fact_Sheets/FSIS Food Recalls/index.as Pp. Such detailed and compulsory federal regulatory schemes are by no means confined to the food, drug, and medical de- vice industries. The National Highway Traffic Safety Ad- ministration (NHTSA), for example, conducts its own pro- gram of crash and rollover testing of automobiles, gives ve- hicles one- to five-star ratings as a result, and tells car manu- facturers how to use those ratings in automobile advertising. See www.SaferCar.gov. NHTSA’s testing activities, which are far more extensive than the FTC’s, are carried out under a specific statutory mandate, 49 U.S.C. § 30168, not pursuant to voluntary agreements or informally adopted policies. Moreover, unlike the FTC, NHTSA does more than test vehicles and instruct automakers concerning the use of those test results in advertising. It also formally promulgates spe- cific design and performance standards for vehicles, known as Federal Motor Vehicle Safety Standards (FMVSSs). Those mandatory standards, codified at 49 C.F.R. Part 571, fill ap- proximately 700 pages of the Code of Federal Regulations. Typically, FMVSSs not only define what safety features manufacturers are required to install in vehicles and what standards of protection they must provide, but they also spec- ify exactly how manufacturers must measure their perform- ance. For example, NHTSA’s standard governing seatbelts and airbags, 49 C.F.R. § 571.208, which by itself is 87 pages long, prescribes exactly what crash tests manufacturers must conduct to test their passenger protection systems, including 23 the speed and angle at which vehicles must be crashed, the forces that must be measured, and the precise “anthropomor- phic test devices” (i.e., crash-test dummies) that must be used. Similarly, EPA regulations define exactly how auto- makers must test the fuel economy of their vehicles, and fur- ther provide for testing by the agency itself of a significant percentage of vehicles as a double-check on the manufactur- ers’ own testing. See generally www.epa.gov/fueleconomy/ index.htm; www.fueleconomy.gov/. Again, unlike the FTC’s cigarette testing program, fuel economy tesung is mandated by regulations with the force of law. See 40 C.F.R. Parts 86 & 600. And those regulations not only specify precisely how automakers must disclose fuel economy test results to con- sumers, but also define fleet fuel economy performance stan- dards (CAFE standards) that the automobile industry is re- quired by law to meet.'® Other consumer products are also subject to detailed regulatory testing regimes. Under regulations promulgated by the Department of Energy, 10 C.F.R. Part 430, manufacturers of refrigerators, freezers, dishwashers, water heaters, clothes washers and dryers, air conditioners, television sets, home heating equipment, kitchen ranges and ovens, fluorescent light tubes, showerheads, faucets, and toilets must use pre- scribed test methods to measure the energy and water con- sumption of their products. And unlike the FTC’s cigarette testing program, the Energy Department’s regulations not only require product testing, but also require that the products meet specific energy and water conservation standards. '° By contrast, although the FTC opened a cigarette testing laboratory using the Cambndge Filter Method in 1967, see FTC, Cigarettes: Testing for Tar and Nicotine Content, 32 Fed.Reg. 11,178 (1967), that laboratory was closed in 1987 when most testing of tar and nicotine levels was turned over to a private laboratory funded by the tobacco companies themselves. See 62 Fed. Reg. 48,158 n.5. 24 The Consumer Product Safety Commission (CPSC), in addition to engaging in voluntary efforts to improve product safety similar to the FTC’s interactions with cigarette com- panies, also promulgates mandatory safety standards for con- sumer products, ranging from bicycle helmets to lawn mow- ers to cigarette 1ighters to baby cribs. Mandatory CPSC stan- dards are formally promulgated as regulations and published in 16 C.F.R. Chapter II. Typically, they set forth design and/or performance standards that manufacturers are required to meet and specify the exact test methods that must be used to determine compliance. The CPSC’s standards for flammability of children’s sleepwear (sizes 7 through 14) are illustrative. The standards, set forth at 16 C.F.R. Part 1616, occupy 30 pages of the Code of Federal Regulations, and specify not only what criteria affected products must meet and how they must be labeled, but also how manufacturers must sample fabric for testing, how the testing must be conducted (including eight pages of engineering drawings describing the test chamber), what re- cords the manufacturer must keep, the Commission’s en- forcement policy, the role of the Commission itself in testing, and the consequences of noncompliance. As to the latter, the regulations state that “[t]he Commission will test fabrics and garments subject to the standard for compliance with the standard ... [and] will consider any failing results from com- pliance testing as evidence of a violation of the standard and section 3 of the Flammable Fabrics Act (15 U.S.C. § 1192).” 16 C.F.R. § 1616.35(f). Financial institutions also operate under detailed federal regulatory regimes. Agencies such as the Federal Reserve, the Office of the Comptroller of the Currency, the Federal Deposit Insurance Corporation, and the Office of Thrift Su- pervision extensively supervise the activities of banks and 25 savings associations.'’ Federal regulation of these institutions involves not only the promulgation of mandatory standards governing their soundness and the types of activities they may undertake, but also examination of banks by federal of- ficers. Unlike cigarette testing, bank examination is carried out directly by the responsible federal agencies, and it is mandatory, not voluntary. And findings made by bank exam- iners may lead to consequences far more drastic than any- thing associated with the FTC’s limited tar and nicotine test- ing regime, including removal of the financial institution’s management, placement into federal receivership, and liqui- dation. As a final example, the Occupational Safety and Health Administration (OSHA), pursuant to the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq., formally promul- gates regulations requiring employers to limit the exposure of their workers to hazardous substances and conditions. Those standards, which have the force of law, typically specify not only precise exposure limits, but also means of compliance and specific methods for exposure testing. For example, OSHA’s recently promulgated rule on exposure to hexava- lent chromium, 71 Fed. Reg. 10,100 (Feb. 28, 2006), not only prescribes a precise exposure limit (5 micrograms of hexava- lent chromium per cubic meter of air as an eight-hour time- weighted average), but also defines exactly the testing that employers must use to determine compliance: “the employer shall use a method of monitoring and analysis that can meas- ure chromium (VI) to within an accuracy of plus or minus 25 percent (+/- 25%) and can produce accurate measurements to within a statistical confidence level of 95 percent for airborne concentrations at or above the action level.” /d. at 10,375. In addition to requiring employers to monitor their compliance _-- '' An overview of federal financial institution regulation and the roles of the various agencies involved may be found at www.federalreserve.gov/pf/pdf/pf_S.pdf. . 26 using specified methods, OSHA itself periodically tests em- ployer compliance, and violation of its regulations can result in administrative sanctions. We could go on. The point is that federal regulation of business activity is ubiquitous, and regulations that impose detailed testing and compliance requirements are common- place. Indeed, if anything is “unique” and “unusual” about the FTC’s testing of cigarettes, it is that it has not been im- posed by regulations with the force of law, that it does not involve enforcement of any design or performance standards regarding the regulated products, and that it involves no en- forceable regulations concerning the use of test results in cigarette advertising or marketing. No one who understood federal regulation could possibly credit Philip Morris’s (and the Eighth Circuit’s) view that the “regulation” of cigarette companies by the FTC is “uniquely,” “extraordinarily,” or even “unusually” extensive. When compared to most other modern regulatory regimes, just the opposite is true. C. Whether Broadly or Narrowly Applied, the Eighth Circuit’s Ruling Will Have Mischievous Consequences. Precisely because the federal “regulation” of cigarette testing and marketing has been so feeble compared to other federal regulatory regimes that impose enforceable legal re- quirements on their subjects, affirmance of the Eighth Cir- cuit’s ruling would likely lead other regulated businesses who are sued by consumers injured by their products to claim that they, too, “acted under” a federal officer. Indeed, medi- cal device manufacturers have already done so, see Parks v. Guidant Corp., 402 F. Supp.2d 964 (N.D. Ind. 2005), as have banks claiming to be acting under federal officers by virtue of federal regulation of their lending practices. See King v. Provident Bank, 428 F. Supp. 2d 1226 (M.D. Ala. 2006). 27 The range of state-law tort actions potentially subject to claims of removal is virtually unlimited, but the regulations described above provide a number of illustrations, including: e Actions against manufacturers of drugs and medical devices alleging design or manufacturing defects or failure to disclose risks associated with use of the prod- ucts; e Actions against automobile manufacturers alleging de- fective design, manufacture or testing of safety equip- ment; e Consumer fraud actions involving improper disclosure of energy consumption figures for vehicles and other consumer products; e Personal injury actions against manufacturers or sellers of virtually any product subject to regulation by the CPSC; e Actions by consumers sickened or injured by contami- nated or unsafe foods or food additivies; e Consumer fraud actions based on misleading labeling of the contents or nutritional qualities of foods; e Consumer or commercial fraud actions involving bank transactions. Thus, if this Court were to leave the Eighth Circuit’s de- cision intact, a number of undesirable consequences would be likely. Courts that conscientiously applied the principle that regulation, if extensive enough, can justify removal, and that und \\»« a serious comparison of the degree of regula- tion faced .. defendants in other industries with that faced by cigarette companies, might allow a broad range of defendants to remove cases under § 1442(a)(1), dramatically expanding the scope of federal removal jurisdiction in a manner having nothing to do with the statute’s purpose of protecting federal officers in the performance of their official duties. 28 Alternatively, it is possible that this Court, or lower courts, might grasp at the lifeline offered by the Eighth Cir- cuit’s characterization of the Philip Morris case as “unique,” “unusual,” “extraordinary,” and “unprecedented,” and use it to reject removal by defendants outside the cigarette industry even though, in reality, they face regulations much more ex- tensive than cigarette companies. But even if courts declined to extend removal to other industries, much time and effort would be expended litigating meritless removals. And, at the end of the day, the cigarette companies would be left with a special benefit not available to other more heavily regulated industries. A decision resulting in an unprincipled exception to ordinary jurisdictional rules for the benefit of a single in- dustry should not be allowed to stand by this Court. CONCLUSION For the reasons stated above, and by the petitioner, the Eighth Circuit’s decision should be reversed, and the case remanded with directions that it be remanded to the state court in which it was filed. Respectfully submitted, SCOTT L. NELSON Counsel of Record BRIAN WOLFMAN PUBLIC CITIZEN LITIGATION GROUP 1600 20th Street, N.W. Washington, D.C. 20009 (202) 588-1000 Date: February 2007 29 STACY CANAN BRUCE VIGNERY AARP FOUNDATION MICHAEL SCHUSTER AARP 601 E Street, N.W. Washington, D.C. 20049 (202) 434-2130 Attorneys for Amici Curiae --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0251%3A17. Public record. Not legal advice.