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

Supreme Court, U.S

FILED

egnnecre cor" , FEB 2 § 2007

No. 05-1284 OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

LISA WATSON AND LORETTA LAWSON, INDIVIDUALLY AND ON

BEHALF OF ALL OTHERS SIMILARLY SITUATED,

Petitioners,

v.

PHILIP MORRIS COMPANIES, INC., A CORPORATION; AND

PHILIP MORRIS, INCORPORATED, A CORPORATION

Respondents.

On Writ of Certiorari to the United

States Court of Appeals for the Eighth Circuit

BRIEF OF AMICI CURIAE PUBLIC JUSTICE, P.C.,

AMERICAN ASSOCIATION FOR JUSTICE, AND

CONSUMER ATTORNEYS OF CALIFORNIA

IN SUPPORT OF PETITIONERS

ARTHUR H. BRYANT GERSON H. SMOGER

LESLIE A. BRUECKNER Counsel of Record

PUBLIC JUSTICE, P.C. SMOGER & ASSOCIATES

555 12% Street, Suite 1620 3175 Monterey Blvd., Ste. 3

Oakland, CA 94607 Oakland, CA 94602

(510) 622-8150 (510) 531- 4529

JEFFREY R. WHITE ESTHER E. BEREZOFSKY

CENTER FOR CONSTITUTIONAL MICHAEL J. QUIRK

LITIGATION, P.C. WILLIAMS CUKER BEREZOFSKY

1050 31s Street N.W. 1617 J.F.K. Blvd., Suite 800

Washington, DC 20007 Philadelphia, PA 19103

(202) 944-2839 (215) 557-0099

Counsel for Amici Curiae

QUESTION PRESENTED

Whether a private corporation sued related to its

marketing of cigarettes is “acting under [a federal]

officer” and “under color of such office” for purposes of

removal jurisdiction under 28 U.S.C. § 1442(a)(1), when

that corporation does not assert a federal defense based

on its active participation in federal law enforcement, and

relies solely on the type of federal preemption defense

which this Court has held is otherwise insufficient to

invoke removal jurisdiction.

ii

TABLE OF CONTENTS

Page(s)

SI AIOS 0 IIE SIP cece cnenniccussnessesscesenpsennccsnenevininotite i

CA FFD iercsecccrerserensernnnnnnmnnatints iii

INTEREST OF AMICI CUIRIAE ...........ccecsscsssersosesesesesessees 1

ee GEE We I contsnrneveremrennsorcennintnnenienmmesiinaiie 3

SUMMARY OF ARGUMENT. ..........0.-c.cecscveessseoresssveeseeees 5

IO cdceneseestninnterinercnnvendanariuteniannimemnnntintininn 7

I. ITISWELL SETTLED THAT PREEMPTION

DEFENSES DO NOT CREATE FEDERAL

JURISDICTION UNDER THE GENERAL

REMOVAL STATUTE, 28 U.S.C. § 1441 ........ eee 7

Il. REMOVAL UNDER 28 U.S.C. § 1442(a)(1)

SHOULD ONLY BE AVAILABLE WHERE THE

ASSERTED FEDERAL DEFENSE INVOLVES

PARTICIPATION IN FEDERAL LAW

RT LETT 11

A. The Purpose of the Federal Officer Removal

Statute Is to Secure a Federal Forum for

Parties Engaged in Federal Law

IIIT: ctsccenserenisevicientintinintnnsinmmsuanmnneimnes 11

B. In Order to Effectuate the Underlying

Purpose of the Federal Officer Removal

Statute and Prevent a Massive Expansion of

Federal Court Jurisdiction, This Court

Should Expressly Limit Removal Jurisdiction

Under 28 U.S.C. § 1442(a)(1) to Cases

Presenting Defenses Based Upon

Participation in Federal Law Enforcement. .......15

Sea ID cersnrecvsassnenansbennsiesenemnsiinuenimnassinmencennaveipats 17

ill

TABLE OF AUTHORITIES

Page(s)

Cases

Alsup v. 3-Day Blinds, Inc., 435 F. Supp. 2d 838

SERGI Sele SIRITD ececneunessceeinenmesnnaeessnenianesitnimnasevinsitapvediisente 16

Amalgamated Clothing Workers of America v.

Richman Brothers Co., 348 U.S. 511 (1955) ...........:00000 8

Arizona v. Manypenny, 451 U.S. 232 (1981) ........2.serere0e 13

Beneficial Nat’l Bank v. Anderson, 539 U.S. 1 (2003)..... 7, 9

Camacho v. Autoridad de Telefonos de Puerto Rico,

BE ae Ge Ge. Fa erccesescscnesesnicreinsmanatnonnsnieitn 14

Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987). 5, 8, 9, 10

Chik Kam Choo v. Exxon Corp., 486 U.S. 140 (1988).......... 8

Colorado v. Symes, 286 U.S. 510 (1932) .........:ssseceesereeeeees 14

Dukes v. U.S. Healthcare, Inc., 57 F.3d 350 (3d Cir.

TE cvscisteeesenententvisesonnensetipinsninitiionsemiiiiabinetdiiietiatosineseans 10

Exxon Mobil Corp. v. Allapattah Serv’s, 545 U.S.

I cerencenctocrenasnnnnepsetenessestnnsemsietiniiannindintinenaneen 4,7

Guckin v. Nagle, 259 F. Supp. 2d 406 (E.D. Pa.

ED ennenenrereennsenmmnminensenmnieimnninaniemenainnsetn 16

Gully v. First National Bank, 299 U.S. 109 (1936) ............. 8

Healy v. Ratta, 292 U.S. 263 (1934).......cessssereseseseeeererees 7

In re MTBE Products Liability Litigation, 342 F.

Supp. 2d 147 (S.D.N.Y. 2006) ..........0ececccececscsesesecersees 16

International Primate Protection League v.

Administrators of Tulane Educational Fund, 500

SN. Fe re iecennensccervmmmatenioninaioneaiietiimuniopianensien - Se

Jefferson County v. Acker, 527 U.S. 423 (1999)............0000 12

iV

King v. Provident Bank, 428 F. Supp. 2d 1226

SS GRU: BEI creiihinsnscenninostasnetactimannensecntdcnstacbeninens 16

Kokkonen v. Guardian Life Ins. Co. of America, 511

i TED sleehctienisetenmiscnnientsaionctantsnninineatitiinnineenesee 7

Magnin v. Teledyne Continental Motors, 91 F.3d

Ge IIE cecperrtesincctevtniensnonetissnnennsteintasienene 14

Maryland v. Soper, 270 U.S. 9 (1926).......ccseseesesessseceens 13

Mesa v. California, 489 U.S. 121 (1989) ........cesceseerseseeees 13

Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58

ITED sibsiivtecietbiegliitiiisneinidinpehintsbiccaqpieaidiieiindniemmeninaticneninn 10

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

i ee ictiasssisciinsctasninsinsinnniciaiesecnerenesionintatenininientineenes 16

Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100

SE ciistuintosiinciuibitinhehjnctosictonibeinstineniilainibundeniiniveitechiideanneiees 15

Sprietsma v. Mercury Marine, 197 I1l.2d 112 (2001),

rev'd, Sprietsma v. Mercury Marine Corp., 537

a NE ecthedesiantintinnenrnnerensonenetavtininesmmmennqnenninnesennies 1

Sullivan v. American Airlines, Inc., 424 F.3d 267

Es TIED wisincesenvtnenedutiibensesenemdusnintinenesccedenemsesnenenets 9

Tennessee v. Davis, 100 U.S. 257 (1880) .............:2000 11, 13

Venezia v. Robinson, 16 F.3d 209 (7 Cir. 1994).............. 14

Watson v. Philip Morris Co’s, Inc., 420 F.3d 852 (8

__NERRESESETIGIEE oeeprsereoe een TOOT OOD 5,12, 15

Willingham v. Morgan, 395 U.S. 402 (1969)........... 6, 12, 13

Statutes

a Ci iestinnsccnntessnciennitnnnsiniiennnsnemscentiniieieemannienntaney 4

Be I diitininichepeniinnesicenicintntennennsmnentetdennnnnn 5,8, 11

ie Te SD iirionscicccecssinreersennssomincianbeyiarenti passim

29 U.S.C. § 185..

29 U.S.C. §1132

Ark. Code Ann.

COE EEE EEE EERE EERE SEE EEE EE EET EEE HEHE EEEE EE EETE TET HEH ERE EH

COREE EERE EEE EEE EEE EEE EEE HEHEHE ESET EEEE EEE EEE HEE THEE HE EE OEE

BOBBIE an cccccrsececcensosssssosensnsiesnossnsainngins

l

INTEREST OF AMICI CURIAE

Public Justice, P.C., the American Association for

Justice, and the Consumer Attorneys of California submit

this brief as amici curiae in support of Petitioners, urging

this Court to hold that Respondent Philip Morris

Companies, Inc. (hereinafter “Philip Morris”) does not

assert a federal law defense that can support removal of a

case under the “federal officer removal statute,” 28 U.S.C.

§ 1442(a)(1)..

Public Justice, P.C. (“Public Justice”), which

recently shortened its name from “Trial Lawyers for

Public Justice, P.C.” is a national public interest law firm

that specializes in precedent-setting and socially

significant civil litigation and is dedicated to pursuing

justice for the victims of corporate and governmental

abuses. Litigating in the federal and state courts, Public

Justice prosecutes cases designed to advance consumers’

and victims’ rights, environmental protection and safety,

civil rights and civil liberties, occupational health and

employees’ rights, the preservation and improvement of

the civil justice system, and the protection of the poor

and the powerless. Public Justice has fought federal

preemption in numerous state court cases. See, ¢.g.,

Sprietsma v. Mercury Marine, 197 Ill.2d 112 (2001), rev'd,

Sprietsma v. Mercury Marine Corp., 537 U.S. 51 (2002).

Public Justice is concerned that, if the decision below is

upheld, plaintiffs may be deprived of their choice of

' Letters granting blanket consent to the filing of amicus

curiae briefs have been filed with the Clerk. This brief was not

authored in whole or in part by counsel for a party. No person

or entity other than amici curiae or its counsel made a monetary

contribution to the preparation or submission of this brief.

2

forum in any case involving a federal preemption defense

and the federal courts will be overburdened, causing

substantial delays in consumers’ access to justice.

The American Association for Justice (“AAJ”),

known until Dec. 2006 as the Association of Trial

Lawyers of America, is a voluntary national bar

association. AAJ’s approximately 55,000 members

practice in state courts throughout the country, primarily

representing plaintiffs in personal injury suits, civil rights

and employment discrimination cases, and worker injury

actions. AAJ’s mission includes the protection of the

health and safety of all Americans through the

development of law and preservation of the right to trial

by jury guaranteed by the Constitution. AAJ believes

that the ramifications of potentially placing large

numbers of state law actions into at times distant federal

courts may result in an unwarranted denial of

Americans’ fundamental right to legal recourse for

injury.

The Consumer Attorneys of California is a

voluntary membership organization representing

approximately 6,000 associated attorneys practicing

throughout California. The organization was founded in

1962. Its membership consists primarily of attorneys who

represent individuals subjected in a variety of ways to

personal injury, employment discrimination, and other

harmful business and governmental practices. The

Consumer Attorneys of California has taken a leading

role in advancing and protecting the rights of injured

consumers in both the courts and the legislature.

The decision below implicates amici’s concerns in a

number of respects, one of which is the focus of this brief.

3

Amici often have advocated before this and other courts

against expansive assertions of federal preemption

doctrines that would prevent consumers and injury

victims from vindicating their rights under state law to

seek damages and other relief. State courts have long

been the primary guardians of these state-law rights, and

federal law consistently has been construed to respect the

vital role played by state courts. Even where defendants

invoke federal preemption, this Court has been steadfast

in holding that cases may not be removed from state to

federal court based on an asserted federal defense, and

that state courts are equally competent to decide these

defenses. The decision below upends this settled rule of

law by allowing a private corporate defendant to remove

a case after merely asserting a possible preemption

defense based upon its alleged compliance with federal

regulations. Amici submit this brief urging reversal.

STATEMENT OF FACTS

In April 2003, Lisa Watson and Loretta Lawson

filed a putative class action against Philip Morris, the

seller of millions of packs of cigarettes in the state of

Arkansas, alleging that Philip Morris had violated the

Arkansas Deceptive Trade Practices Act in selling its

Marlboro Lights cigarettes in Arkansas (Counts I and II).

See Ark. Code Ann. §§ 4-88-101, et seq. Pet. App. 62a-73a

(First Amended Complaint). They brought this case

exclusively on behalf of individuals who purchased

cigarettes within the state of Arkansas. Pet. App. 68a

(First Amended Complaint, 7 27). At the time it was

filed, there was no basis for Philip Morris to remove this

action pursuant to the diversity removal statute, 28

4

US.C. § 1332,? so in order to access its preferred federal

forum Philip Morris based its removal solely on 28 U.S.C.

§ 1442(a)(1), the federal officer removal statute. Pet.

App.74a-97a (Notice of Removal).

The federal officer removal statute allows a

defendant to remove an otherwise unremovable civil or

criminal case when the defendant is a United States

officer “or any person acting under that officer,” so long as

he or she is sued “for any act under color of such office.” 28

U.S.C. § 1442(a)(1) (emphases supplied). In support of its

removal petition, Philip Morris asserted that when it sold

its Marlboro Lights cigarettes within the state of

Arkansas, it was “acting under” an officer of the U.S.

Federal Trade Commission (“FTC”) and selling its

cigarettes “ under color of” the FTC simply because it was

subject to a federal regulatory regime that circumscribed

when it could sell its privately manufactured products to

the general public.

Recognizing that the statute has been held to

impose a requirement that the removing federal officer

assert a “colorable federal defense” based upon official

actions, Philip Morris contended that it would defend the

action against it by demonstrating that “Watson’s and

Lawson’s state law claims were preempted by Section

2 The recently enacted Class Action Fairness Act, Pub.

L. 109-2, 119 Stat. 4, amended 28 U.S.C. § 1332 to “confer[]

federal diversity jurisdiction over class actions where the

aggregate amount in controversy exceeds $5,000,000,” and

thereby “abrogates the rule against aggregating claims.”

Exxon Mobil Corp. v. Allapattah Serv’s, 545 U.S. 546, 571 (2005).

If filed today, this case would likely be removed by Philip

Morris pursuant to 28 U.S.C. § 1332.

5

Five of the Federal Cigarette Labeling and Advertising

Act.” Watson v. Philip Morris Co’s, Inc., 420 F.3d 852, 862

(8th Cir. 2005). In response, the Eighth Circuit cursorily

addressed whether this assertion by Philip Morris

fulfilled the requirement of a “federal defense.” The

Eighth Circuit dispensed with this requirement in a few

short sentences by holding that “the threshold is quite

low” for a federal defense and, therefore, it had “no

hesitation in concluding that Philip Morris in its Notice of

Removal, has set forth a colorable federa! defense...” Id.

at 863.

SUMMARY OF ARGUMENT

This Court has consistently held that district courts

are by design courts of limited jurisdiction. Under the

general removal statute, 28 U.S.C. § 1441, Congress, by

permitting removal only when a district court has

original jurisdiction, has made “the plaintiff the master of

the claim; he or she may avoid federal jurisdiction by

exclusive reliance on state law.” Caterpillar, Inc. v.

Williams, 482 U.S. 386, 392 (1987). Thus, this Court has

decided that a defendant's assertion of a preemption

defense does not create federal jurisdiction when a

plaintiff's claims are based, as herein, entirely upon state

law. Id. at 393.

The decision below turns this longstanding

jurisprudence on its head. Instead of keeping the

jurisdiction of federal courts limited, the Eighth Circuit

drastically expanded that jurisdiction by construing the

federal officer removal statute, 28 U.S.C. § 1442(a)(1), to

allow a private corporate defendant to remove any case

where state-law claims challenge its conduct, so long as

that defendant asserts that its compliance with federal

6

regulations give rise to a “colorable” preemption defense.

Given the pervasiveness of federal regulation in the

modern economy, upholding this ruling would

essentially transform the federal courts into courts of

general jurisdiction over private corporate conduct.

The Eighth Circuit's interpretation of 28 U.S.C. §

1442(a)(1) is incorrect. The federal officer removal statute

does not overturn the rule that state courts are competent

to handle actions based upon state law where private

corporate defendants merely assert preemption defenses.

By allowing the defense of preemption to fulfill one of

the prerequisites for removal under 28 USC. §

1442(a)(1), the Eighth Circuit ignored the fundamental

purpose and intent of the statute. As this Court has

repeatedly stated, the federal officer removal statute was

designed to apply to “cases where federal officers can

raise a colorable defense arising out of their duty to enforce

federal law.” Willingham v. Morgan, 395 U.S. 402, 406-07

(1969) (emphasis added). As a result, this Court has

limited the type of federal defenses that may support

removal to those directly arising out of the active

enforcement of federal law, principally immunity

defenses. Philip Morris’s preemption defense bears no

relationship to this statutory purpose. Philip Morris does

not and cannot allege that it was engaged in federal law-

enforcement when it privately manufactured and sold

“light” cigarettes.

Since Philip Morris’s preemption defense has

nothing to do with the removal statute’s purpose of

protecting federal officials and those acting under color

of their authority to enforce federal law, the decision

below should be reversed. Instead, this Court should

hold that removal pursuant to 28 U.S.C. § 1442(a)(1) is

7

limited to those instances where federal immunity

defenses are being asserted in response to state

prosecutions which may impede the active enforcement of

federal law by or under the auspices of a federal officer.

ARGUMENT

The Eighth Circuit failed to acknowledge that this

Court has discussed applicable federal defenses under 28

U.S.C. § 1442(a)(1) exclusively in the context of cases

involving actual federal officers who were asserting

official immunity defenses. This Court has never held

that a defense other than an asserted immunity defense

will support removal under the statute. For the reasons

discussed below, this Court should hold that asserted

defenses unrelated to the enforcement of federal law do

not support removal under the statute.

I. IT IS WELL SETTLED THAT PREEMPTION

DEFENSES DO NOT CREATE FEDERAL

JURISDICTION UNDER THE GENERAL

REMOVAL STATUTE, 28 U.S.C. § 1441

This Court has often reiterated that the district

courts of the United States “are ‘courts of limited

jurisdiction. They possess only that power authorized by

Constitution and statute.” Exxon-Mobil Corp., 545 U.S.

at 552 (quoting Kokkonen v. Guardian Life Ins. Co. of

America, 511 U.S. 375, 377 (1994)). This rule embodies the

““due regard for the rightful independence of state

governments, which should actuate federal courts, [by

requiring] that they scrupulously confine their own

jurisdiction to the precise limits which the statute has

defined.’” Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 18

(2003) (Scalia, J. dissenting) (quoting Healy v. Ratta, 292

U.S. 263, 270 (1934)).

8

Thus, under the general federal removal statute, 28

U.S.C. § 1441(a), unless otherwise provided by Congress,

a defendant may only remove a “civil action brought ina

State court of which the district courts of the United

States have original jurisdiction.” Congress’s requirement

of original jurisdiction means that a question of federal

law “must be disclosed upon the face of the complaint,

unaided by the answer or by the petition for removal.”

Gully v. First National Bank, 299 U.S. 109, 113 (1936).

When a federal law defense does not appear on the face

of a plaintiff's complaint, that defense cannot create

removal jurisdiction. See, e.g., Caterpillar, 482 U.S. at 392

(“The rule makes the plaintiff the master of the claim; he

or she may avoid federal jurisdiction by exclusive

reliance on state law.”).

There is no exception made for the assertion of the

federal defense of preemption, as the abiding respect for

the authority of state courts has long compelled the

recognition of state court competence to resolve

preemption defenses. See, e.g., Chik Kam Choo v. Exxon

Corp., 486 U.S. 140, 149-50 (1988) (“[W]hen a state

proceeding presents a federal issue, even a pre-emption

issue, the proper course is to seek resolution of that issue

by the state court.”). Further, even where a defendant

asserts “field preemption,” alleging that Congress has

displaced state law by occupying an entire field of

regulation, state courts are still deemed fully competent

to patrol the borders of such occupied fields by resolving

these defenses. See, e.g., Caterpillar, 482 U.S. at 398-99

(holding that state court must decide preemption defense

based on field-preemptive statute); cf. Amalgamated

Clothing Workers of America v. Richman Brothers Co., 348

U.S. 511, 517-19 (1955) (directing party to raise defense in

state court). In fact, state courts handle questions of

9

“preemption” so often that a Lexis/Nexis search of

written decisions reveals that the subject of “ preemption”

was discussed in at least 457 state court cases in 2006, 440

in 2005, and 448 in 2004.

Even the small set of cases involving “complete

preemption” do not-undermine this rule. In those cases,

this Court has held that a “complete preemption”

argument will support removal only if Congress has

created not just a federal defense to state-law claims but

also an exclusive cause of action under federal law. See,

e.g., Beneficial Nat'l Bank, 539 U.S. at 9-10 (holding that

National Bank Act, 12 U.S.C. § 86, creates exclusive cause

of action allowing removal of case involving state-law

usury claims against national bank); id. at 6-8 (describing

similar holdings based on provisions in the National

_ Labor Relations Act, 29 U.S.C. § 185, and Employee

Retirement Income Security Act, 29 U.S.C. § 1132). Yet,

even in those cases, this Court has been careful to

distinguish complete preemption from the general rule

that preemption defenses alone do not support removal.

See, e.g., Beneficial Nat'l Bank, 539 U.S-at 9 (“The section

[12 U.S.C. § 85] would therefore provide the petitioners

with a complete federal defense. Such a federal defense,

however, would not justify removal.”).? As this Court

concluded in Caterpillar:

3 See also Sullivan v. American Airlines, Inc., 424 F.3d 267,

272-73 (2d Cir. 2005) (“The complete-preemption doctrine

must be distinguished from ordinary preemption, also known

as defensive preemption. Many federal statutes - far more

than support complete preemption - will support a

defendant's argument that because federal law preempts state

law, the defendant cannot be held liable under state law. . . .

The Supreme Court has left no doubt, however, that a

10

[T]he presence of a federal question ...ina

defensive argument does not overcome the

paramount policies embodied in the well-

pleaded complaint rule - that the plaintiff -

is the master of the complaint, that a

federal question must appear on the face of

the complaint, and that the plaintiff may,

by eschewing claims based on federal law,

choose to have the cause heard in state

court... . [A] defendant cannot, merely by

injecting a federal question into an action

that asserts what is plainly a state-law

claim, transform the action into one arising

under federal law, thereby selecting the

forum in which the claim shall be litigated.

If a defendant could do so, the plaintiff

would be master of nothing.

482 U.S. at 398-99 (emphasis in original).

It is thus well settled that federal preemption

defenses by themselves do not create removal

jurisdiction. The only remaining question, then, is

whether Congress, in enacting 28 U.S.C. § 1442(a)(1),

_ “otherwise expressly provided,” id., that the federal

officer removal statute should override this general, well-

plaintiff's suit does not arise under federal law simply because

the defendant may raise the defense of ordinary preemption.” )

(citations omitted); Dukes v. U.S. Healthcare, Inc., 57 F.3d 350,

355 (3d Cir. 1995) (“State law claims which fall outside the

scope of [ERISA] § 502, even if preempted by § 514(a), are still

governed by the well-pleaded complaint rule and, therefore,

are not removable under the complete-preemption principles

established in Metropolitan Life [Ins. Co. v. Taylor, 481 U.S. 58-

(1987)].”).

1]

considered rule. Although 28 U.S.C. § 1442(a)(1) creates a

narrow exception to 28 U.S.C. § 1441's “well-pleaded

complaint rule,” for the reasons that follow it is clear that

the federal officer removal statute was never intended to

permit removal outside of the context of federal law

enforcement.

Il. REMOVAL UNDER 28 U.S.C. § 1442(a)(1)

SHOULD ONLY BE AVAILABLE WHERE THE

ASSERTED FEDERAL DEFENSE INVOLVES

PARTICIPATION IN FEDERAL LAW

ENFORCEMENT.

A. The Purpose of the Federal Officer

Removal Statute Is to Secure a Federal

Forum for Parties Engaged in Federal Law

Enforcement. .

The primary purpose of the federal officer removal

statute has always been to prevent states from using their

own court systems to interfere with the federal

government's enforcement of federal laws. This

underlying purpose has been at the heart of every one of

this Court's decisions applying the statute for over a

century. For instance, in Tennessee v. Davis, 100 U.S. 257

(1880), this Court explained:

[The United States government] can act

only through its officers 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 possess .. ., the operations of the

12

general government may at any time be

arrested at the will of one af its members.

Id. at 263; see also International Primate Protection League v.

Administrators of Tulane Educational Fund, 500 U.S. 72, 85-

86 (1991) (official immunity defense “was resolved by

examining whether an officer's challenged actions

exceeded the powers the sovereign had delegated to him.

Determining whether a federal officer had acted ultra

vires was fraught with difficulty and subject to

considerable manipulation.”) (citation omitted);

Willingham, 395 U.S. at 406 (reiterating that the federal

interest supporting removal under this act is “the very

basic interest in the enforcement of federal law through

federal officials”).

Further, this Court has consistently held that

giving federal courts the right to resolve federal officers’

official immunity defenses in response to state-law

prosecutions prevents those prosecutions from unfairly

hindering federal law enforcement. Thus, although the

Eighth Circuit correctly stated that this Court has held

that “the Defendant need only raise a colorable federal

defense” and that removal should not be frustrated by a

“narrow, grudging interpretation,” Watson, 420 F.3d at

856, 863 (citing Willingham, 395 U.S. at 407, and Jefferson

County v. Acker, 527 U.S. 423, 431 (1999)), the court below

ignored the fact that this Court has only discussed federal

defenses that “aris[e] out of [an officer’s] duty to enforce

federal law.” It is singularly the threat that state

prosecution may impede federal law enforcement

operations that has undergirded both “the validity of the

defense of official immunity tried in a federal court” and

this Court's broad statements regarding removal

jurisdiction. Willingham, 395 U.S. at 407; Jefferson County,

13

527 U.S. at 431 (quoting Willingham); id. at 447 (Scalia, J.

concurring in part and dissenting in part) (“The point is

only that the officer should have to identify as the

gravamen of the suit an act that was, if not required by, at

least closely connected with, the performance of his

official functions.”); Mesa v. California, 489 U.S. 121, 137

(1989) (“Congress’ enactment of federal officer removal

statutes since 1815 served ‘to provide a federal forum for

cases where federal officials must raise defenses arising

from their official duties.’”) (quoting Willingham, 395 US.

at 405)); Arizona v. Manypenny, 451 U.S. 232, 241 (1981)

(“Historically, removal 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.”). Removal

under this statute thus has always been predicated upon

a defendant's colorable allegation that he or she was

engaged in federal law enforcement activity at the time of

the alleged conduct upon which suit has been brought.

_ Indeed, to date every case this Court has decided

addressing this statute has involved the assertion of

official immunity defenses by actual federal government

officials. For example, in Davis, 100 U.S. at 260, it was a

federal revenue collector who sought removal (“[T]he act

for which he was indicted was performed in his own

necessary self-defense while engaged in the discharge of

his duties as deputy collector.”); in Willingham, 395 US. at

409, removal was sought by on-duty federal prison

officers (“Petitioners sufficiently put in issue the

questions of official justification and immunity[.]”); in

Maryland v. Soper, 270 U.S. 9, 34 (1926), removal was

sought by four prohibition agents and their chauffeur

accused of murder (“In invoking the protection of a trial

of a state offense in a federal court under § 33, a federal

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officer abandons his right to refuse to testify because

accused of crime, at least to the extent of disclosing in his

application for removal all the circumstances known to

him out of which the prosecution arose. The defense he is

to make is that of his immunity from punishment by the

state, because what he did was justified by his duty

under the federal law . . .”); and in Colorado v. Symes, 286

U.S. 510, 518 (1932), removal was sought by a prohibition

agent accused of murder (“Federal officers and

employees are not, merely because they are such, granted

immunity from prosecution in state courts for crimes

against state law.”). In each of these cases, the

defendant(s) argued that the lack of a federal venue in

which to present their immunity defense could

potentially result in dire consequences for them.

By contrast, Philip Morris makes no claim that it

needs to be protected from adverse consequences if its

defense is scrutinized within a state court system. Rather

than arguing immunity based upon participation in

federal law enforcement, Philip Morris merely argues

that there may be a conflict between state and federal law

when it allegedly complied with federal regulations in

the process of privately manufacturing its cigarettes and

choosing to sell them within the state of Arkansas.‘

4 Philip Morris’ asserted preemption defense here is a

far cry from the federal immunity defenses which have been

asserted by private parties where removal under this statute

has at times been upheld. See, e.g., Magnin v. Teledyne

Continental Motors, 91 F.3d 1424, 1427-28 (11" Cir. 1996)

(immunity defense by designated airplane inspector of Federal

Aviation Administration); Venezia v. Robinson, 16 F.3d 209, 211-

12 (7" Cir. 1994) (immunity and justification defenses by

participant in FBI sting operation); Camacho v. Autoridad de

Telefonos de Puerto Rico, 868 F.2d 482, 484-86 (1st Cir. 1989)

15

However, such a preemption defense is precisely the type

of defense that state courts have repeatedly been deemed

more than competent to resolve.

B. In Order to Effectuate the Underlying

Purpose of the Federal Officer Removal

Statute and Prevent a Massive Expansion

of Federal Court Jurisdiction, This Court

Should Expressly Limit Removal

Jurisdiction Under 28 U.S.C. § 1442(a)(1) to

Cases Presenting Defenses Based Upon

Participation in Federal Law Enforcement.

By arguing for an expansive inclusion of all federal

defenses within the umbrella of the statute, Philip Morris

seeks to make this statute the exception that swallows the

rule of limited federal court jurisdiction. This Court has

long held that statutes addressing removal jurisdiction

should be construed narrowly and strictly out of respect

for the independence of state courts. See, e.g., Shamrock

Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108 (1941) (“[T]he

policy of the successive acts of Congress regulating the

jurisdiction of federal courts is one calling for the strict

construction of such legislation.”). Indeed, as explained

_ above, this statute should only be read expansively when

federal officers argue they are enforcing federal law as

part of their official duties. The Eighth Circuit's contrary

conclusion, which allows removal based on any

“colorable federal defense,” Watson, 420 F.3d at 862-863

(“the threshold is quite low”), rests on the absurd

(defenses by telephone company participating in federal

wiretapping investigation). In these cases, the defendants

obtaining removal had colorable defenses based on their

alleged actual participation in federal law enforcement.

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premise that the federal officer removal statute was

intended to provide an exclusive federal forum for a

defense that a federal officer himself could hardly ever

assert! This Court should reject such a plainly overbroad

reading of the statute.

Rather, in order to effectuate the statute’s

underlying purpose of preventing state interference with

federal law enforcement, while at the same time

preserving the longstanding principle that federal courts

are courts of limited jurisdiction, this Court should clarify

the types of federal defenses that the statute is intended

‘to protect: namely, those defenses that arise out of a

federal officers’ law enforcement responsibilities. Such a

bright line rule would appropriately preserve the

removal statute’s underlying purposes while at the same

time stemming the recent tide of removals based on

asserted compliance with all manner of federal

regulatory schemes. See, e.g., Alsup v. 3-Day Blinds, Inc.,

435 F. Supp. 2d 838, 852-53 (S.D. Ill. 2006) (rejecting

window-blinds manufacturer's removal based on

asserted compliance with Consumer Product Safety

Commission regulations); King v. Provident Bank, 428 F.

Supp. 2d 1226, 1231-32 (M.D. Ala. 2006) (rejecting bank’s

removal based on asserted compliance with Truth In

Lending Act regulations); Parks v. Guidant Corp., 402 F.

Supp. 2d 964, 969-70 (N.D. Ind. 2005) (rejecting removal

based on medical device manufacturer's asserted

compliance with FDA regulations); In re MTBE Products

Liability Litigation, 342 F. Supp. 2d 147, 158-59 (S.D.NLY.

2004) (allowing removal based on gasoline additive

manufacturer's asserted compliance with EPA

directives); Guckin v. Nagle, 259 F. Supp. 2d 406, 416-18

(E.D. Pa. 2003) (rejecting medical device manufacturer's

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removal based on asserted compliance with FDA

regulations).

As the removals in these cases demonstrate, if

Philip Morris's preemption defense here can support

removal under the federal officer removal statute, then

removal to federal court will become the norm in

virtually all cases involving state-law claims against

companies in regulated industries. There is no support

for this massive expansion of federal court jurisdiction in

either the text or underlying rationale behind the federal

officer removal statute. Decades of this Court's decisions

counsel exactly the opposite result, authorizing plaintiffs

rather than defendants to determine both the nature of

the claims at issue and the forum in which those claims

may be heard.

This Court, therefore, should hold that a

defendant seeking removal under 28 U.S.C. § 1442(a)(1)

must assert a colorable federal immunity defense that is

based on its participation in the actual enforcement of

federal law. Absent a federal defense that implicates §

1442(a)(1)’s true purpose, the general rule prohibiting

removal in the face of a “well-pleaded complaint” should

apply.

CONCLUSION

For the reasons stated herein, the Eighth Circuit's

decision should be reversed.

February 26, 2007

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Respectfully submitted,

GERSON H. SMOGER

Counsel of Record

SMOGER & ASSOCIATES

3175 Monterey Blvd., Suite 3

Oakland, CA 94602

(510) 531- 4529

ARTHUR H. BRYANT

LESLIE A. BRUECKNER ~

PUBLIC JUSTICE

555 12t Street, Suite 1620

Oakland, CA 94607

(510) 622-8150

JEFFREY R. WHITE

CENTER FOR CONSTITUTIONAL

LITIGATION, P.C.

1050 31st Street N.W.

Washington, DC 20007

(202) 944-2839

ESTHER E. BEREZOFSKY

MICHAEL J. QUIRK

WILLIAMS CUKER BEREZOFSKY

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