Watson v. Philip Morris Cos.

Petitioners filed a state-court suit claiming that respondents (Philip Morris) violated Arkansas unfair business practice laws by advertising certain cigarette brands as "light" when, in fact, Philip Morris had manipulated testing results to register lower levels of tar and nicotine in the advertised cigarettes than would be delivered to consumers. Philip Morris removed the case to Federal District Court under the federal officer removal statute, which permits removal of an action against "any officer (or any person acting under that officer) of the United States or of any agency thereof," 28 U.S.C. § 1442(a)(1) (emphasis added). The federal court upheld the removal, ruling that the complaint attacked Philip Morris' use of the Government's method of testing cigarettes and thus that petitioners had sued Philip Morris for "acting under" the Federal Trade Commission. The Eighth Circuit affirmed, emphasizing the FTC's detailed supervision of the cigarette testing process and likening the case to others in which lower courts permitted removal by heavily supervised Government contractors.

Held: The fact that a federal agency directs, supervises, and monitors a company's activities in considerable detail does not bring that company within § 1442(a)(1)'s scope and thereby permit removal. Pp. 147–157.

(a) Section 1442(a)(1)'s words "acting under" are broad, and the statute must be "liberally construed." Colorado v. Symes, 286 U.S. 510, 517. But broad language is not limitless. And a liberal construction nonetheless can find limits in a text's language, context, history, and purposes. The statute's history and this Court's cases demonstrate that its basic purpose is to protect the Federal Government from the interference with its "operations" that would ensue were a State able, for example, to "arres[t]" and bring "to trial in a State cour[t] for an alleged offense against the law of the State," "officers and agents" of the Government "acting within the scope of their authority." Willingham v. Morgan, 395 U.S. 402, 406 (internal quotation marks omitted). State-court proceedings may reflect "local prejudice" against unpopular federal laws or officials, e.g., Maryland v. Soper (No. 1), 270 U.S. 9, 32, and States hostile to the Government may impede enforcement of federal law, see, e.g., Tennessee v. Davis, 100 U.S. 257, 263, or deprive federal officials of a federal forum in which to assert federal [p143] immunity defenses, see, e.g., Willingham, supra, at 407. The removal statute applies to private persons "who lawfully assist" a federal officer "in the performance of his official duty," Davis v. South Carolina, 107 U.S. 597, 600, but "only" if the private parties were "authorized to act with or for [federal officers or agents] in affirmatively executing duties under federal law," City of Greenwood v. Peacock, 384 U.S. 808, 824. Pp. 147–151.

(b) The relevant relationship here is that of a private person "acting under" a federal "officer" or "agency." § 1442(a)(1) (emphasis added). In this context, "under" must refer to what the dictionaries describe as a relationship involving acting in a certain capacity, considered in relation to one holding a superior position or office, and typically includes subjection, guidance, or control. Precedent and statutory purpose also make clear that the private person's "acting under" must involve an effort to assist, or to help carry out, the federal superior's duties or tasks. See, e.g., Davis v. South Carolina, supra, at 600. Such aid does not include simply complying with the law. When a company complies with a regulatory order, it does not ordinarily create a significant risk of state-court "prejudice." Cf. Soper, supra, at 32. A state-court suit brought against such a company is not likely to disable federal officials from taking necessary action designed to enforce federal law, cf. Tennessee v. Davis, supra, at 262–263, nor to deny a federal forum to an individual entitled to assert a federal immunity claim, see, e.g., Willingham, supra, at 407. Thus, a private firm's compliance (or noncompliance) with federal laws, rules, and regulations does not by itself fall within the scope of the statutory phrase "acting under" a federal "official," even if the regulation is highly detailed and even if the private firm's activities are highly supervised and monitored. A contrary determination would expand the statute's scope considerably, potentially bringing within it state-court actions filed against private firms in many highly regulated industries. Nothing in the statute's language, history, or purpose indicates a congressional intent to do so. Pp. 151–153.

(c) Philip Morris' two arguments to the contrary are rejected. First, it contends that if close supervision is sufficient to turn a Government contractor into a private firm "acting under" a Government "agency" or "officer," as lower courts have held, it is sufficient to transform a company subjected to intense regulation. The answer to this argument is that the assistance that private contractors provide federal officers goes beyond simple compliance with the law and helps the officers fulfill other basic governmental tasks. Second, Philip Morris argues that it is "acting under" FTC officers when it conducts cigarette testing because, after initially testing cigarettes for tar and nicotine, the FTC delegated authority for that task to the tobacco industry in 1987 and has thereaf- [p144] ter extensively supervised and closely monitored testing. This argument contains a fatal flaw of omission. Although it uses the word "delegation," there is no evidence of any delegation of legal authority from the FTC to the tobacco industry to undertake testing on the Government agency's behalf, or evidence of any contract, payment, employer/employee relationship, or principal/agent arrangement. The existence of detailed FTC rules indicates regulation, not delegation. The usual regulator/regulated relationship cannot be construed as bringing Philip Morris within the statute's terms. Pp. 153–157.

420 F.3d 852, reversed and remanded.

BREYER, J., delivered the opinion for a unanimous Court.

David C. Frederick argued the cause for petitioners. With him on the briefs were Mark L. Evans, Steven Eugene Cauley, James Allen Carney, and Marcus N. Bozeman.

Irving L. Gornstein argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Clement, Assistant Attorney General Keisler, Deputy Solicitor General Hungar, Mark B. Stern, and Dana J. Martin.

Theodore B. Olson argued the cause for respondents. With him on the brief were Mark A. Perry, Amir C. Tayrani, Murray R. Garnick, and Kenneth S. Geller.


 * Briefs of amici curiae urging reversal were filed for the State of Illinois et al. by Lisa Madigan, Attorney General of Illinois, Gary Feinerman, Solicitor General, and Michael Scodro, Deputy Solicitor General, by Linda Singer, Acting Attorney General of the District of Columbia, and by the Attorneys General for their respective States as follows: Talis J. Colberg of Alaska, Terry Goddard of Arizona, Mike Beebe of Arkansas, Edmund G. Brown, Jr., of California, John W. Suthers of Colorado, Richard Blumenthal of Connecticut, Joseph R. Biden III of Delaware, Bill McCollum of Florida, Thurbert E. Baker of Georgia, Mark J. Bennett of Hawaii, Lawrence G. Wasden of Idaho, Steve Carter of Indiana, Tom Miller of Iowa, Paul J. Morrison of Kansas, Gregory D. Stumbo of Kentucky, Charles C. Foti, Jr., of Louisiana, G. Steven Rowe of Maine, Douglas F. Gansler of Maryland, Martha Coakley of Massachusetts, Michael A. Cox of Michigan, Lori Swanson of Minnesota, Jim Hood of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Mike McGrath of Montana, Catherine Cortez Masto of Nevada, Kelly A. Ayotte of New Hampshire, Stuart [p145] Rabner of New Jersey, Gary K. King of New Mexico, Andrew M. Cuomo of New York, Roy Cooper of North Carolina, Wayne Stenehjem of North Dakota, Marc Dann of Ohio, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Thomas W. Corbett, Jr., of Pennsylvania, Patrick Lynch of Rhode Island, Henry McMaster of South Carolina, Lawrence E. Long of South Dakota, Robert E. Cooper, Jr., of Tennessee, Mark L. Shurtleff of Utah, William H. Sorrell of Vermont, Robert F. McDonnell of Virginia, Robert M. McKenna of Washington, Darrell V. McGraw, Jr., of West Virginia, J. B. Van Hollen of Wisconsin, and Patrick J. Crank of Wyoming; for the Campaign for Tobacco-Free Kids et al. by Matthew L. Myers; for Public Citizen, Inc., et al. by Scott L. Nelson, Brian Wolfman, Stacy Canan, Bruce Vignery, and Michael Schuster; and for Public Justice, P.C., et al. by Gerson H. Smoger, Esther E. Berezofsky, Michael J. Quirk, Arthur H. Bryant, Leslie A. Brueckner, and Jeffrey R. White.

Michael S. Fried and Christian G. Vergonis filed a brief for Former Commissioners and Senior Staff of the Federal Trade Commission as amici curiae urging affirmance.

Briefs of amici curiae were filed for the Blue Cross and Blue Shield Association by Anthony F. Shelley; for Defense Contractors et al. by Seth P. Waxman, Stephen W. Preston, Paul R. Q. Wolfson, and John P. Janecek; and for the Washington Legal Foundation by Katharine R. Latimer, Rebecca A. Womeldorf, Michael L. Junk, Daniel J. Popeo, and Paul D. Kamenar.