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

(

No. 05-1284

IN THE

Supreme Court of the United States

LISA WATSON, ET AL..

Petitioners,

V.

PHILIP MORRIS COMPANIES, INC... ET AL..

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

BRIEF FOR AMICUS CURIAE

THE WASHINGTON LEGAL FOUNDATION

IN SUPPORT OF RESPONDENTS

DANIEL J. POPFO KATHARINE R. LATIMER

PAUL D. KAMENAR Counsel of Record

WASHINGTON LEGAL REBECCA A. WOMELDORF

FOUNDATION MICHAEL L. JUNK

2009 Massachusetts Ave... NW = STEPHANIE J. DAWSON

Washington, DC 20036 SPRIGGS & HOLLINGSWORTH

(202) 588-0302 1350 I Street N.W.

Washington, D.C. 20005

(202) 898-5800

March 30, 2007

SP SS I ETE ELE I TT CI TT TT OE TIE LETTE DES TEE TE TEE LE EE EET

WitSON-EPES PRINTING Co., INC. — (202) 789-0096 -— WASHINGTON, D.C. 20002

TABLE OF CONTENTS

AE Ce FF CRI BTID ccsersereveonsssccocnsntnengssocsconscesemnennansennons ill

OS Ce I Ci vececcsecscosesesecsncsvcessconssnnvsnsnsesste l

ET SUE GUIENUUIIIN ET scsentisssiciiciisnainnastisninnniiniinimniataiiiiiiia 2

TE ci cincsinstititenciinincninesnicinicionisteeitipascuiahisnipasuaiiegnddianiniiaiidibiaita 3

I. Corporations Historically Have Availed

Themselves Of The Federal Officer Statute. .................... 3

Il. The Overwheiming Majority Of Modern

Courts Have Rejected The Arguments

Raised By Public Citizen, Holding That

Private Corporations Are Indeed “Persons”

Within The Meaning Of The Federal Office

ERR Rave eR Ir aoe ee 5

III. Interpreting The Federal Officer Statute To

Preclude Removal By Corporations Acting

Under Federal Officers Would Both

Contradict This Court’s Mandate To Apply

The Statute Expansively And Produce An

eT icehecisiitcibciieiiiecildeitcasiiblanieniclichidiimacianeinaianiad 9

IV. This Court’s Decision In Primate Protection

Does Not Dictate That Private Corporations

Cannot Be “Persons” Under The Current

TIEN A LAI IE OT oO RTM 12

il

V. The 1996 Amendments To The Federal

Officer Statute, Viewed In Light Of The

Pre-Existing Dictionary Act, Confirm That

Corporations May Seek The Protections Of

The Federal Officer Statute. .......00:..ccssseccsssessssscsesssesseses

i tcencesecinenineiecssnvinnnccnatetonsMenmsssisibicsenpinnsiintidmmaaninet

ill

TABLE OF AUTHORITIES

Cases

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

EES A SA TO

Arness v. Boeing N. Am., Inc., 997 F. Supp. 1268

LEE ALTE

Boyle v. United Technologies Corp., 487 U.S. 500

LTT Ae

C.H. v. American Red Cross, 684 F. Supp. 1018

SERRE

Camacho y. Autoridad de Telefonos de Puerto Rico,

868 F.2d 482 (Ist Cir. 1989) .ecccccccccccccccccsesecccsceccseccsee .

Cannon v. Univ. of Chicago, 441 U.S. 677 (1979)............

Davidson v. Arch Chems. Specialty Prods., Inc.,

347 F. Supp. 2d 938 (D. Or. 2004) .00.. eee eeeeeees

Davis v. United States, 512 U.S. 452 (1994)...

Durham vy. Lockheed Martin Corp., 445 F.3d 1247

ES REESE LAE LET LA

Ferguson v. Lorillard Tobacco Co., No.

1:06CV 100006, 2007 WL 539279 (N.D. Ohio

IS SE es

Gensplit Fin. Corp. v. Foreign Credit Ins. Ass'n,

616 F. Supp. 1504 (E.D. Wis. 1985).....cccccsccsescssseesesee

iV

Good v. Armstrong World Indus., Inc., 914 F. Supp.

an TIE: SUITE scsdenscssinisiteienctaitiieiesiibehapetnecintiandiain

Greene v. Citigroup, Inc., 215 F.3d 1336 (Table),

2000 WL 647190 (10th Cir. 2000) .......csecccssecsssseessseees

Harris v. Allstate Ins. Co., 300 F.3d 1183 (10th Cir.

In re Agent Orange Prod. Liab. Litig., 304 F. Supp.

Ee I 0 I icisntsnrecsnicneemtntniiainnintennnnne

In re MTBE Prods. Liab. Litig., 342 F. Supp. 2d

147 (S.D.N.Y. 2004) ..ccccccccsssescsescsssessssecsussssecsssecssneesnes

International Primate Protection League v.

Administrators of Tulane Educational Fund,

SOO US, 72 (1991) ...cee.ocvcescccveesscvessscnesccnesesvvveservvceesees

Jefferson County, Ala. v. Acker, 527 U.S. 423

SRI CEE A etal Raa aI de

Lopez v. Three Rivers Elec. Co-op., 166 F.R.D. 411

Ee SOME SITET iseeiticthsiieniantesiinibichineiinpiidiidiaitaicinstiiatantions

McCleskey v. Zant, 499 U.S. 467 (1991) .....cccceceeeeseeees

Paldrmic v. Altria Corp. Servs., Inc., 327 F. Supp.

Be FEF Rs WAR. BD crccnerczesereinssessissstbtsltlmeemeseens

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

a

Roche v. American Red Cross, 680 F. Supp. 449 (D.

SA Ma teiletichitiiiilb cianebichiteaiaiieapaieiaiiditin acrimaiesiniasinaaas

Ryan v. Dow Chem. Co., 781 F. Supp. 934

AE «Sp ee scsescssnncnstninbiniestneniedeindetctepibitiniétiniiimaanaaianas 8, 12

State of Colo. v. Symes, 286 U.S. 510 (1932) ....ccccccsceesccesecceeeeeees 11

State of La. v. Sparks, 978 F.2d 226 (Sth Cir. 1992) ............ceeeee 11

United States v. Craft, 535 U.S. 274 (2002) .......ccccccsccesceeeeseeeseeeeeees 8

Virden v. Altria Group, Inc., 304 F. Supp. 2d 832

GIRL UF. Wil eer nesnsnsrcnnsnsestecnmuniiniveiiniiniaiinimmaieseaeee 7

Vt. Agency of Natural Res. v. United States ex rel.

DRIVES, FES CFI. FOO Cee cvcvccssenssensnenresnsnntpstiinsbiiaiiniiasaaiiiin 14

Ward v. Congress Constr. Co., 99 F. 598 (7th Cir.

SITTIIEI sccesenssisieonnneannievesinsieicasentehiviventesmiaiiibaaaadiaalaaaaann 3

Winters v. Diamond Shamrock Chem. Co., 149 F.3d

FIT Ces Be icoscecwnincecvisnttiensnninttseidpaiitetaniiaaiamesidaiaialaia 6, 11

Youakim v. Miller, 425 U.S. 231 (1976)....... etasecnessesesesesesesecesesorssers 2

Statutes

B Ble 0b cccenseasntsssesonnssnicinininnianamesiinngsiiieaeneianan 14

Se | Nc passim

INTEREST OF AMICUS CURIAE

The Washington Legal Foundation (“WLF’”) is a non-

profit, public-interest law and policy center based in Washington,

D.C., with supporters in all 50 states.'" WLF devotes a substantial

portion of its resources to defending free enterprise principles,

individual rights, a limited and accountable government, and the

proper use of our state and federal judicial systems. To that end,

WLF has appeared before this and other federal courts in cases

raising issues of federal court jurisdiction and the removal of

federal cases to state courts. See, e.g., Kircher v. Putnam Funds

Trust, 126 S. Ct. 2145 (2006); Marshall v. Marshall, 547 U.S. 293

(2006). In addition, WLF’s Legal Studies Division publishes legal

policy papers on these topics. A WLF publication of particular

relevance to this case is Katharine R. Latimer & Michael L. Junk,

Removing Lawsuits From State Court: The "Federal Officer”

Option, WLF Contemporary Legal Notes (Dec. 2006).

As recognized by the great majority of courts to consider

the issue, Congress intended 28 U.S.C. § 1442(a)(1) (the “Federal

Officer Statute’’) to permit removal] from state to federal court of

any case brought against federal officers or those acting under

federal officers, without limitation. Accordingly, WLF files this

brief in support of respondents to inform the Court about the

historical application of the Federal Officer Statute to corporations

acting under federal officers, and to urge the Court not to disturb

the consensus of the lower courts that a private corporation today

may avail itself of the Federal Officer Statute in those

circumstances.

' WLF hereby affirms that no counsel for either party authored

any part of this brief, and that no person or entity other than amicus

curiae and its counsel provided financial support for the preparation and

submission of this brief. By blanket letters of consent filed with the

Clerk of the Court, all parties have consented to the filing of this brief.

SUMMARY OF ARGUMENT

The “Federal Officer Statute,” as amended in 1996,

provides that a civil action commenced in state court against any

officer of the United States or “any person acting under that

officer” may be removed “to the district court of the United States

for the district and division embracing the place wherein it is

pending.” 28 U.S.C. § 1442(a)(1) (emphasis added).

Amici curiae Public Citizen, Inc., et a/. argue that no “non-

human” entity other than the United States and its agencies may

utilize the Federal Officer Statute. See Public Citizen Br. at 7-8

(“[T]he statutory language granting removal rights . . . does not

reflect an intent to grant protection to corporations and other

artificial entities.”); id. at 10 (“Nothing . . . 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.”). In essence, Public Citizen urges this Court to reach an

issue never considered by the lower courts in this case,” to ignore

? The parties and the courts below never questioned that a private

corporation could avail itself of the protections of the Federal Officer

Statute. See Pet. App. 16a (noting that the parties do not dispute that a

corporation can be a “person” acting under a federal officer). Public

Citizen’s suggestion (see Public Citizen Br. at 6-7) that the Court must

address this question before affirming the decision below is incorrect.

See Youakim v. Miller, 425 U.S. 231, 234 (1976) (per curiam) (“It is this

Court’s practice to decline to review those issues neither pressed nor

passed upon below.”); Davis v. United States, 512 U.S. 452, 457 n*

(1994) (“Although we will consider arguments raised only in an amicus

brief, we are reluctant to do so when the issue is one of first impression

involving the interpretation of a federal statute on which the [relevant

federal department] expressly declines to take a position.” (internal

citation omitted)); McCleskey v. Zant, 499 U.S. 467, 523 n.10 (1991)

(“It is well established . . . that this Court will not consider an argument.

advanced by amicus when that argument was not raised or passed on

(Footnote cont'd)

3

decades of jurisprudence, and then to hold that no private

corporation — regardless of the circumstances — may ever invoke

federal jurisdiction by way of the Federal Officer Statute. Neither

law nor logic dictates such a result. WLF respectfully requests that

the Court reject Public Citizen’s invitation to impose ~such

sweeping and unjustified limitations upon the protections granted

by the Federal Officer Statute.

ARGUMENT

1. Corporations Historically Have Availed Themselves Of

The Federal Officer Statute.

Public Citizen begins its argument from the premise that

“the principle purpose of the removal statute was to protect

individual federal officers, employees, and agents.” Public Citizen

Br. at 6: From there, however, Public Citizen broadly and

incorrectly states that “[t]he statute’s history provides no support

for the notion that it was intended to protect private corporations.”

Id. at 4 (emphasis added).

Although it may be true that the impetus behind the original

Federal Officer Statute was the protection of the mghts of

individual federal officers, it is untrue that the predecessors to

today’s Federal Officer Statute served only individuals to the

exclusion of private corporations. In Ward v. Congress Constr.

Co., 99 F. 598 (7th Cir. 1900), a decision handed down more than

a century ago, the Seventh Circuit held that a private construction

company was entitled to remove a claim to federal court under the

then-existing terms of the Federal Officer Statute. Like today’s

Federal Officer Statute, the one before the Seventh Circuit in Ward

below and was not advanced in this Court by the party on whose behalf

the argument is being raised.”’).

4

did not grant the right of removal to corporations by explicit

statutory inclusion. Instead, it allowed removal in claims brought

against “any officer appointed under or acting by authority of any

revenue law of the United States . . . or any person acting under or

by authority of any such officer.” Jd. at 604 (emphasis added).

Even so, in reaching its decision, the Seventh Circuit apparently

never doubted that the private corporation in Ward could benefit

from the removal provisions found in that early Federal Officer

Statute.

Other examples may be found, but this one suffices to

refute Public Citizen’s broad-brush attempt to re-paint the

traditional application of the Federal Officer Statutes in order to

circumscribe the application of the modern-day statute at issue in

this proceeding. For it is clear that private, corporate entities — and

not just individuals — historically availed themselves of the

protections afforded by the Federal Officer Statute.’ Certainly this

fact could ot have escaped the attention of Congress, which has

revised the Federal Officer Statute several times throughout the

statute’s existence in various forms over more than 100 years.

* Petitioners concede that private corporations historically have

“availf[ed] themselves” of the federal officer removal statute. See Br. for

Pet. at 32 (“Some federal courts have held that — unlike private regulated

parties — government contractors, in certain circumstances, may avail

themselves of the federal officer removal statute.” (internal citation

omitted) (citing Ward, 99 F. 598)).

5

Il. The Overwhelming Majority Of Modern Courts Have

Rejected The Arguments Raised By Public Citizen,

Holding That Private Corporations Are Indeed

“Persons” Within The Meaning Of The Federal Office

Removal Statute.

Since the Supreme Court’s decision solidifying the

government-contractor defense in Boyle v. United Technologies

Corp., 487 U.S. 500 (1988), corporate defendants have more often

invoked the removal privileges of the Federal Officer Statute.

Public Citizen concedes, as it must, that only a handful of modern

district court decisions stand for the proposition that a private

corporation cannot qualify as a “person” under the terms of the

statute. See Public Citizen Br. at 6 (noting that “several federal

courts have concluded that the statute only applies to natural

persons”).*

The handful of cases cited by Public Citizen were all

decided pnor to the most recent amendments to 28 U.S.C. §

* Public Citizen cites the following cases: (1) Krangel v. Crown,

791 F. Supp. 1436 (S.D. Cal. 1992); (2) CH. v. Am. Red Cross, 684 F.

Supp. 1018 (E.D. Mo. 1987); (3) Roche v. American Red Cross, 680 F.

Supp. 449 (D. Mass. 1988); and (4) Gensplit Fin. Corp. v. Foreign

Credit Ins. Ass'n, 616 F. Supp. 1504 (E.D. Wis. 1985). See Public

Citizen Br. at 6. Krangel v. Crown provides no authority for the

proposition that a private corporation can never qualify as a “person”

under the current Federal Officer Statute. Even assuming for the sake of

argument that the Krangel court properly construed the 1948 version of

the Federal Officer Statute at issue in that case, the Krangel holding is

beside the point, because the 1996 revision of the Federal Officer Statute

is at issue here. See Section V, infra. And, as noted by the district court

in Krangel, Roche, Gensplit, and C.H. all involved the issue of agency

removal; therefore “[nJone of these decisions precisely addresses

whether a private corporation is a ‘person’ under the provision.” 791 F.

Supp. at 1445.

6

1442(a)(1)° and stand against a veritable tide of contrary authority.

No federal circuit court has ever endorsed the view that a

corporation may never invoke the Federal Officer Statute. To the

contrary, at least the First, Fifth, and Tenth Circuits have held that

private corporations can qualify as “persons” acting under a federal

officer for purposes of Section 1442(a)(1).° In the last ten years,

every federal district court squarely to address the issue has

likewise held that a private corporation can be a “person” within

the meaning of the Federal Officer Statute. In reaching this

conclusion, numerous courts have rejected the very same

arguments proffered by Public Citizen here.’ In the instant case,

° See Section V, infra.

° See Camacho v. Autoridad de Telefonos de Puerto Rico, 868

F.2d 482, 468 (Ist Cir. 1989) (finding that telephone companies acting

under a federal officer could utilize the Federal Officer Statute, and

implicitly holding that those companies were “persons” within the terms

of the statute); Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387,

398 (Sth Cir. 1998) (“[C]orporate entities qualify as ‘persons’ under §

1442(a)(1).”), cert. denied, 526 U.S. 1034 (1999); Greene v. Citigroup,

Inc., 215 F.3d 1336 (Table), 2000 WL 647190, at *2 (10th Cir. 2000)

(“A private corporation may remove a case under § 1442(a)(1).”).

” See, e.g., Ferguson v. Lorillard Tobacco Co., No.

1:06CV 100006, 2007 WL 539279, at *3 (N.D. Ohio Feb. 15, 2007)

(noting that “the overwhelming weight of recent judicial authority

supports the view that corporations qualify as ‘persons’ under the Federal

Officer Statute” (citation omitted)); Alsup v. 3-Day Blinds, Inc., 435 F.

Supp. 2d 838, 845 n.3 (S.D. Ill. 2006) (“[T]he Court agrees with the

weight of authority holding that corporations are persons for purposes of

federal officer removal.”); Davidson v. Arch Chems. Specialty Prods.,

Inc., 347 F. Supp. 2d 938, 941 (D. Or. 2004) (“A corporation can be a

‘person’ for purposes of § 1442(a)(1).”); Paldrmic v. Altria Corp. Servs.,

Inc., 327 F. Supp. 2d 959, 965 (E.D. Wis. 2004) (disapproving contrary

holding by sister court in Gensplit Fin. Corp. v. Foreign Credit Ins.

Ass'n, 616 F. Supp. 1504 (E.D. Wis. 1985)); Jn re Agent Orange Prod.

Liab. Litig., 304 F. Supp. 2d 442, 447 (E.D.N.Y. 2004) (“Under section

(Footnote cont'd)

7

none of the real parties in interest disputes that a corporation can

be a “person” under the statute. See Pet. App. 16a (Eighth Circuit

noting that the parties do not dispute that a corporation can be a

“person” acting under a federal officer). Even the United States

apparently does not dispute that private corporations are “persons”

for purposes of the Federal Officer Statute. See Br. for the U.S. at

24-25 (relying on cases in which courts applied the Federal Officer

Statute to private companies such as telephone companies and

banks that “assist{] a federal officer in performing the officer’s

duties”).

Although the numerous lower court decisions noted above

— like the concessions of the parties — are not binding on this Court,

the near unanimity of the lower courts in holding that corporations

are “persons” for purposes of the Federal Officer Statute is

1442(a)(1) a ‘person’ includes a corporation.”); Virden v. Altria Group,

Inc., 304 F. Supp. 2d 832, 844 (N.D. W. Va. 2004) (“The majority of

courts construing the removal statute . . . have disagreed with the holding

in the Krangel case and have applied the federal officer removal statute

to corporations. ... Furthermore, courts adopting the majority position

have found that including corporations within the definition of ‘persons’

is consistent with the statutory goal of the federal officer removal statute

to prevent state suits from inhibiting federal policy. The majority rule,

both as a matter of statutory construction and policy, is persuasive, and

the Court concliides that the defendant corporations are ‘persons’ under

28 U.S.C. § 1442.” (citations omitted)); Arness v. Boeing N. Am., Inc.,

997 F. Supp. 1268, 1271-72 (C.D. Cal. 1998) (disapproving contrary

holding by sister court in Krangel v. Crown, 791 F. Supp. 1436 (S.D.

Cal. 1992)); Lopez v. Three Rivers Elec. Co-op., 166 F.R.D. 411 (E.D.

Mo. 1996) (disapproving contrary holding by sister court in C.H. v.

American Red Cross, 684 F. Supp. 1018 (E.D. Mo. 1987)); Good v.

Armstrong World Indus., Inc., 914 F. Supp. 1125, 1128 (E.D. Pa. 1996)

(“I find that Westinghouse qualifies as a person within the meaning of

the statute.”’).

8

persuasive authority for that proposition. ® The lower court

decisions are particularly persuasive here, where those decisions

reflect a careful, reasoned analysis of the issue, worthy of this

Court’s deference. In Ryan v. Dow Chem. Co, 781 F. Supp. 934

(E.D.N.Y. 1992), for example, one of the first decisions to consider

(and reject) each of the arguments urged here in support of the

theory that corporations cannot be “persons” under the Federal

Officer Statute, Judge Weinstein reasoned as follows:

Determining in a vacuum what the term “person” is

meant to encompass seems a fruitless exercise.

The statute's use of the word could refer to either

natural or legal persons. Legislative history is

equally unilluminating. Although as a historical

matter it seems plausible to believe that the drafters

were concerned with protecting natural persons,

there is almost no recorded history for the

provision, and none to warrant reliance on such an

intuition.

Given the arid interpretive landscape, it would seem

more productive to address a slightly different

question, namely, what definition of person makes

sense in light of the purpose of the section read as a

whole. Thus recast, the issue is whether a purely

legal person such as a corporation could be engaged

in activities that amount to the implementation of a

federal policy under the direction of a government

officer in such a manner that state court suits

* Cf. United States v. Craft, 535 U.S. 274, 300 (2002) (Thomas,

J., Scalia, J., and Stevens, J., dissenting) (discussing import of consensus

among lower federal courts and stating that "[w]hile the positions of the

lower courts and the IRS do not bind this Court, one would be hard

pressed to explain why the combined weight of these judicial and

administrative sources . . . do not constitute relevant authority").

9

against corporations arising out of those activities

could be a_ direct interference with the

implementation of federal law.

It is not difficult to imagine such a circumstance.

Id. at 946.

III. Interpreting The Federal Officer Statute To Preclude

Removal By Corporations Acting Under Federal

Officers Wouid Both Contradict This Court’s Mandate

To Apply The Statute Expansively And Produce An

Absurd Result.

By now, numerous courts across the country share Judge

Weinstein’s considered view that corporations may act as

“persons” under the Federal Officer Statute.” The same logic and

the same result should obtain here, for interpreting the word

“person” in the Federal Officer Statute to exclude corporations

would ignore the sound rationale expressed in the Ryan decision

and lay down a rule that no corporation, no matter how connected

to the federal government or its officers, may remove cases based

upon the Federal Officer Statute. Such a holding would impose a

sweeping limitation upon the Federal Officer Statute and produce

an absurd result, all at the expense of substantial federal interests.

To deny corporations the benefit of Section 1442(a)(1)

would be to ignore the reality that the federal government relies on

corporations to carry out many of its functions and duties.’ The

* See n.6 and n.7, supra, and accompanying text.

'° As described in the briefs for Amici Curiae Defense

Contractors and Industry Associations and Blue Cross and Blue Shield

Association, the federal government has long contracted with

corporations for the provision of numerous products and services.

Moreover, the lower courts have long permitted corporations serving in

such roles to remove cases to federal court under Section 1442(a)(1).

(Footnote cont'd)

10

Federal Officer Statute is an essential component of this

relationship, bridging the gap between the interests of the federal

government and the corporations often charged with carrying out

those interests. As the Ninth Circuit pointed out in Durham v.

Lockheed Martin Corp., 445 F.3d 1247, 1252 (9th Cir. 2006), “if

- the federal government can’t guarantee its agents access to a

federal forum if they are sued or prosecuted, it may have difficulty

finding anyone to act on its behalf.” For this reason, corporations

are, and properly should be, viewed as “persons” under the Federal

Officer Statute.

Furthermore, this Court and others have consistently

favored a broad interpretation of Section 1442(a)(1) to ensure that

all private entities acting pursuant to the federal government’s

directives are protected from potentially hostile state courts, and

fu.ther to ensure that the government’s interests are not frustrated

by state policies inconsistent with federal objectives. See, e.g., id.

at 1252 (noting the “clear command from both Congress and the

Supreme Court that when federal officers and their agents are

seeking a federal forum, [courts] are to interpret section 1442

broadly in favor of removal.”); Parks v. Guidant Corp. 402 F.

Supp. 2d 964, 967 (N.D. Ind. 2005) (noting that “{i]f federal

officials could not remove such cases to federal court, states could

effectively thwart federal action and disrupt the operation of the

federal government” (citing Willingham v. Mergan, 395 U.S. 402,

406 (1969)).'' To that end, common sense dictates that where

See Br. for Def. Contractors and Indus. Ass’ns at 7 (noting that “lower

courts are uniform in holding that defense contractors can avail

themselves of Section 1442”); Br. for Blue Cross and Blue Shield Ass’n

at 9-12 (discussing lower court consensus in allowing private entities

right to remove under the Federal Officer Statute).

'' See also Jefferson County, Ala. v. Acker, 527 U.S. 423, 431

(1999) (recognizing that “[iJn construing the colorable federal defense

requirement [under Section 1442(a)(1)], we have rejected a ‘narrow,

grudging interpretation’ of the statute ....”); State of Colo. v. Symes,

(Footnote cont'd)

11

federal officers themselves are granted access to federal courts by

way of the Federal Officer Statute, the same privilege should be

granted to the private corporations acting at their direction.

Ultimately, to accept that corporations are “persons” within

the meaning of the Federal Officer Statute offends neither ‘the

language, nor the intent, nor the historical application of the

statute. Instead, to allow corporations acting under federal officers

the mght to remove claims against them to federal court is

consistent with the “broad” application of statute mandated by this

286 U.S. 510, 517 (1932) (allowing prohibiucn agent to remove suit

under Section 1442(a)(1) and stating “[i]t scarcely need be said that such

[removal] measures are to be liberally construed to give full effect to the

purposes for which they were enacted”); Durham, 445 F.3d at 1252 (this

Court “has mandated a generous interpretation of the federal officer

removal statute” so that “the policy favoring removal ‘should not be

frustrated by a narrow, grudging interpretation of § 1442(a)(1).” (citing

Arizona v. Manypenny, 451 U.S. 232, 242 (1981) (quoting Willingham,

395 U.S. at 407))); Winters, 149 F.3d at 398 (acknowledging the

“Supreme Court’s admonishment that the statute’s ‘color of federal

office’ requirement is neither ‘limited’ nor ‘narrow,’ but should be

afforded a broad reading so as not to frustrate the statute’s underlying

rationale”); State of La. v. Sparks, 978 F.2d 226, 232 (Sth Cir. 1992)

(noting that “the Supreme Court has for over two decades required a

liberal interpretation of § 1442(a) in view of its chief purpose—to

prevent federal officers who simply comply with a federal duty from

being punished by a state court from doing so” and thereafter adopting

“such a liberal interpretation in the instant case”); Jn re MTBE Prods.

Liab. Litig., 342 F. Supp. 2d 147, 154-55 (S.D.N.Y. 2004) (noting that

“{ajlthough there is no precise standard for the extent of control

necessary to bring an individual with[in] the ‘acting under’ clause [of

Section 1442(a)(1)], a cursory survey of the application of [section

1442(a)(1] reveals it has been construed broadly, and its ‘person acting

under’ provision particularly so” (citing Gurda Farms, Inc. v. Monroe

County Legal Assistance Corp., 358 F. Supp. 841, 844 (S.D.N.Y. 1973)).

12

Court’s precedents as well as the indisputable fact that federal

officers and agencies act not only through individuals but also

through private corporations.

IV. This Court’s Decision In Primate Protection Does Not

Dictate That Private Corporations Cannot Be

“Persons” Under The Current Federal Officer Statute.

Public Citizen points to this Court’s decision in

International Primate Protection League v. Administrators of

Tulane Educational Fund, 500 U.S. 72 (1991) (“Primate

Protection’), as if that decision somehow forecloses a

determination that private corporations fall within the terms of the

Federal Officer Statute. It does not.

Primate Protection does not address the specific question

raised here by Public Citizen, i.e., whether private corporations can

be “persons” within the meaning of the Federal Officer Statute.

Instead, the question confronted by the Court in Primate

Protection was whether a plain reading of the prior Federal Officer

Statute precluded removal by federal “agencies.” See id. at 79

(‘The question before us is whether this provision permits agencies

to remove. [T]he starting point in every case involving

construction of a statute is the language itself.” (quotations and

citation omitted)). In essence, the question in Primate Protection

was a narrow one, readily answered by the unambiguous terms of

the then-existing Federal Officer Statute. See id. (“We have little

trouble concluding that the statutory language excludes agencies

from the removal power.”). 7 Thus, the Court’s conclusion in

'? The Court’s arguably narrow view of the term “person” in

Primate Protection was also compelled by the Court’s “reluctan[ce] to

read ‘person’ to mean the sovereign,” Primate Protection, 500 U.S. at

83, an additional consideration that does not limit the Court’s

interpretation of the same term in this instance.

13

Primate Protection that the language of the former Federal Officer

Statute at one time excluded “agencies” from its provisions does

not implicate — much less resolve — the question of whether

corporations can or should be included as “persons” under the

terms of the current statute. See, e.g., Krangel, 791 F. Supp. at

1444 (observing that this Court’s decision in Primate Protection

“was silent as to whether a corporation could remove under the

statute”); Ryan, 781 F. Supp. at 946 (“The Court did not decide,

however, whether a corporation could be a ‘person acting under

[an officer].”” (quoting Bakalis v. Crossland Sav. Bank, 781 F.

Supp. 140, 142-43 (E.D.N.Y. 1991)).

V. The 1996 Amendments To The Federal Officer Statute,

Viewed In Light Of The Pre-Existing Dictionary Act,

Confirm That Corporations May Seek The Protections

Of The Federal Officer Statute.

, To the extent the Primate Protection decision has any

relevance to the issues currently before the Court, that relevance

stems from the impetus provided by that decision for the 1996

amendments to the Federal Ofimcer Statute. With those

amendments, Congress effectively overruled the narrow

construction given the statute by the Court in Primate Protection,

thus indicating an intent to bring all entities that act under federal

officers within its terms. See, e.g., Jn re Agent Orange Prod. Liab.

Litig., 304 F. Supp. 2d at 447 (“Congress’s amendment of the

statute to emphasize its broad scope supports the conclusion that

‘person’ encompasses more than mere individuals. Protection of

federal government operations in today’s organizational climate

where so much of our economy and government outsourcing

depends upon corporations requires this result. Under section

1442(a)(1) a ‘person’ includes a corporation.”).

The intent of Congress to include corporations as “persons”

capable of acting under federal officers is implicit in the 1996

amendments, but nonetheless manifest. Chief among those is the

fact that the 1996 amendments to the Federal Officer Statute were

14

accomplished at a time when the Dictionary Act unambiguously

defined the term “person” to include corporations. See 1 U.S.C. §

1 (“In determining the meaning of any Act of Congress, unless the

context indicates otherwise . . . the words ‘person’ and ‘whoever’

include corporations, companies, associations, firms, partnerships,

societies, and joint stock companies, as well as individuals.”’).

Public Citizen argues that “the use of the term ‘person’ in the

federal officer removal statute long predates the first enactment of

the Dictionary Act in 1871 and [so the statute] could not possibly

have been informed by the Act.” Public Citizen Br. at 8, n.2.

Although this may be true chronologically, logically Public

Citizen’s argument misses the mark, for it ignores that the

Dictionary Act has remained in place throughout the course of

several amendments to the Federal Officer Statute, including the

most recent amendment in 1996. Therefore, while the scope of the

original statute may not have been informed by the Act itself, the

same cannot be said for the subsequent amendments to the

statute.'? Including corporations within the scope of federal officer

removal is consistent with the language of the statute as amended

in 1996 and as interpreted in light of the pre-existing Dictionary

Act. See Vit. Agency of Natural Res. v. United States ex rel.

Stevens, 529 U.S. 765, 782-83 (2000) (reviewing text and history

of False Claims Act and finding that its provisions apply to

corporations, though not explicitly identified in the statute,

“because the presumption with regard to corporations is . . . [that]

they are presumptively covered by the term|‘person.”” (citing 1

U.S.C. § 1)).

'® By its terms, the Dictionary Act supplements and defines each

“Act of Congress.” 1 U.S.C. § 1. An “Act of Congress” occurs both

when a statute is enacted and when a statute is nded. Cf Harris v.

Allstate Ins. Co. 300 F.3d 1183, 1189-90 (10th Cir. 2002) (noting in an

analogous context that an “Act of Congress” means either the enactment

of a statute on “a never-before considered subject or [the] amend[ment

of] a previously existing statute”’). |

|

15

Ultimately, Public Citizen’s reliance on Primate Protection

is misplaced, and its argument concerning both the relevance of

that case and the 1996 amendments to the Federal Officer Statute

is anon sequitur. Although Public Citizen contends that Congress

meant to exclude corporations as “persons” under the statute

because its 1996 post-Primate Protection amendments did not

explicitly bring corporations within the express terms of the statute

(see Public Citizen Br. at 9-10), the opposite is true. Had Congress

intended to exclude corporations from the purview of the Federal

Officer Statute in 1996, it could and would have done so. See

Cannon v. Univ. of Chicago, 441 U.S. 677, 698-99 (1979)

(“[E]valuation of congressional action . . . must take into account

its contemporary legal context’”).In light of the crucial role that

corporations play in today’s federal government, however, it is not

surprising that Congress has not acted to bar corporations from

invoking Section 1442(a)(1)’s removal provisions under the proper

circumstances. Instead, it is telling that, despite multiple

amendments to the Federal Officer Statute, Congress has never

endorsed such a limitation.

16

CONCLUSION

For the foregoing reasons, WLF respectfully requests that

the Court reject Public Citizen’s invitation to impose sweeping and

unjustified limitations upon the Federal Officer Statute that would

bar corporations acting under federal officers from utilizing its

removal provisions.

Respectfully submitted,

DANIEL J. POPEO KATHARINE R. LATIMER

PAUL D. KAMENAR Counsel of Record

WASHINGTON LEGAL FOUNDATION REBECCA A. WOMELDORF

2009 Massachusetts Avenue NW MICHAEL L. JUNK

Washington, D.C. 20036 STEPHANIE J. DAWSON

(202) 588-0302 SPRIGGS & HOLLINGSWORTH

1350 I Street NW

Washington, D.C. 20005

(202) 898-5800

March 30, 2007