Watson v. Philip Morris Companies, Inc. – Oral Argument – April 25, 2007

Media for Watson v. Philip Morris Companies, Inc.

Audio Transcription for Opinion Announcement – June 11, 2007 in Watson v. Philip Morris Companies, Inc.

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John G. Roberts, Jr.:

We’ll hear argument next in case 05-1284, Watson versus Philip Morris Companies.

Mr. Frederick.

David C. Frederick:

Thank you, Mr. Chief Justice, and may it please the Court:

The Eighth Circuit held that Philip Morris is subject to such specific and detailed regulations by the Federal Trade Commission that it is entitled to remove this purely State law case from State court to Federal court under the Federal officer removal statute.

That holding is erroneous and should be reversed for at least three reasons.

First, the court articulated the wrong test for determining when a person is acting under a Federal officer.

Second, the court misunderstood the Federal Trade Commission’s regulatory regime with respect to the marketing of so-called light cigarettes.

And third, the court’s approach ignores the long history and purposes of the federal officer removal provision to protect the Federal Government operations from interference by State court proceedings.

In this case, and in this Court, Philip Morris largely abandons the Eighth Circuit’s rationale and offers an alternate ground of affirmance.

It should be rejected.

The FTC has not delegated authority to conduct testing to Philip Morris, and the complaint in any event challenges only the company’s marketing and not its testing of so-called light cigarettes.

Now with respect to the first point, the Eighth Circuit applied and articulated the wrong test for determining when a person is acting under a federal officer.

The proper test, as this Court’s case in the City of Greenwood versus Peacock Casey elucidates, is when the person is aiding or acting on behalf of the Federal officer in a subordinate role in the officer’s discharge of official functions.

That is not what is happening here.

What is happening here is that the Federal Trade Commission for a time conducted testing on the tar and nicotine levels of cigarettes and stopped doing so.

Philip Morris asserts that that sequence of events caused, in effect, a delegation of this authority.

But what is really happening is that Philip Morris–

Antonin Scalia:

Do they cite any particular document or statement–

David C. Frederick:

–No.

Antonin Scalia:

–that constitutes the delegation?

David C. Frederick:

No.

There is nothing, Justice Scalia.

There is no regulation, this is no order, there is no policy statement, there is no statement by the chairman of the FTC before Congress.

There is nothing.

John G. Roberts, Jr.:

So it’s perfectly all right for them to adopt a new method of testing tar and nicotine that yields numbers that are far lower than the Government’s method, and to publish an ad saying these are our tar and nicotine figures, and the FTC would have no problem with that?

David C. Frederick:

Mr. Chief Justice, the answer to your question is no.

And the reason is that what the FTC did at the time was, it determined that this particular Cambridge filter method was the preferred method for ascertaining the level of tar and nicotine in cigarettes.

And in the D.C. Circuit opinion of Federal–

John G. Roberts, Jr.:

Not just the preferred method, but presumably the only one they would allow.

If you used another one, they would bring a deceptive trade practices action very quickly.

David C. Frederick:

–That is correct.

But what was clear in the Brown & Williamson case decided by the–

D.C. Circuit, a panel of Judges Bork, Scalia and Edwards–

John G. Roberts, Jr.:

They still might–

have gotten it right.

[Laughter]

David C. Frederick:

–They most assuredly did get–

it right, Mr. Chief Justice.

What they held was that that method, the Cambridge filter method, had not been done according to rulemaking, a trade regulation rule; and that, therefore, there might be a testing mechanism that would be different and better, but that with respect to undertaking the deception analysis, which is what the FTC is charged by… with doing under Section 5 of the Federal Trade Commission… Federal Trade Act, it had to determine whether or not there would be some method that the cigarette makers were attempting to use that would be deceptive; and what the court in the D.C. Circuit held was that there was no other method that had been determined at that time.

There had been no statement or proposed rule made by the FTC, and so for purposes of determining deception, that was the best that could be done, while leaving open the possibility that the FTC would promulgate the appropriate–

John G. Roberts, Jr.:

Well, I understand you have a dispute about whether that is this case, but there are many areas where the Government requires testing of products.

You know, the strength of seat belts and stuff, and they specify very precise means to which those tests have to be conducted.

And if someone, a manufacturer is complying with those requirements, and a challenge is brought, saying something to the effect that that test doesn’t give you a good measure or something, in that situation would this removal provision apply?

David C. Frederick:

–No.

Because that’s merely compliance with rule and not aiding or acting on behalf of the Government officer in a subordinate relationship in the discharge of function.

John G. Roberts, Jr.:

What if the Government says you’ve got to test your cars, you know, every three months or something, and you’ve got to send us the results of a random… random test?

David C. Frederick:

The reporting of results doesn’t change the hypothetical.

That’s also compliance with the law, and that happens all the time in the Government.

The Department of Labor, the Department of Commerce, the Federal Reserve, all of those agencies routinely require reporting on the part of industry.

But the reporting of information does not transform a regulated entity into a Federal officer for purposes of these cases.

And the court’s cases are highly instructive in this regard.

Beginning with the act of 1815 that began the Federal officer removal, the court’s cases have held that when a person is deemed to be acting under, the person is acting in a subordinate relationship to the Federal officer, merely complying with the law does not transform a regulated entity into someone subordinate to the officer.

And that subordinate relationship is what is critical to understanding when in other contexts someone might have a better claim to being a person acting under a Federal officer than Philip Morris can assert in this case.

Ruth Bader Ginsburg:

That is… this is certainly not your revenue officer needing help from a citizen or the Federal agent going to close down a still during Prohibition.

But what about the Government contractor cases that are cited, the Agent Orange was one example?

David C. Frederick:

The Government contractor cases present a quite distinct set of issues that, of course, is not present in this case because there is no contract between the Federal Trade Commission and Philip Morris.

But I think that the proper way of looking at Government contractors is to look at contextually what is the nature of the contract?

Does the contract provide for ongoing supervision by the Federal officer and give the Federal officer the power to change or alter the conduct of the contracting party?

Otherwise, mere specifications, detailed as they might be, constitute simply compliance with the terms of the contract rather than a subordinate relationship.

Antonin Scalia:

Do all these contracting cases involve the contractor imposing law upon somebody, executing law?

Antonin Scalia:

On behalf of the Government?

David C. Frederick:

In a couple–

Antonin Scalia:

Because that’s your test.

I mean, and if that is the proper test, it ought to apply in the Government contractor situation, too.

So, for example, the Government can hire a private company run prisons; but that would be the Government hiring somebody to perform Government… Government functions.

Now, do all of those… a function that remain as Government function, keeping the incarcerated incarcerated.

Now do, do all of the contract cases involve that?

David C. Frederick:

–No.

I think and that’s why it would be–

Antonin Scalia:

Well–

David C. Frederick:

–a mistake for the Court to either categorically say all Government contractors are in or all Government contractors are out.

Antonin Scalia:

–But that puts a whole new theory on your–

David C. Frederick:

No, it doesn’t.

Antonin Scalia:

–Oh.

David C. Frederick:

Because my theory is that the person acting under has to be aiding or acting on behalf of a Federal officer in a subordinate relationship in the performance of the officer’s official functions.

And in the case of some Government contractors, like the chauffeur in Maryland versus Soper, for instance, who was an employee of the Reliable Transfer Company, he was hired by the Maryland Director of Prohibition to serve with the agents when they went out doing their investigations.

Antonin Scalia:

And he was acting under color of law as you’ve described that in your petitions?

I don’t think so.

David C. Frederick:

That’s a different question, Justice Scalia.

The question of under color of office as the statute defines it depends on the nature of the acts and whether there is a causal relationship between the acts that are charged by the State in the State case and the actions of the people involved.

In the Soper case, the problem wasn’t the color of office, because the chauffeur was out with the four agents, and when there was a death that they stumbled upon, the question arose what were the nature of the facts, not whether the chauffeur was acting under color of office.

That would be a distinct inquiry not related specifically to whether a person is acting under, but that’s the third part of this question.

Antonin Scalia:

Well, I, I it seems to me color of office, you say color of office, it means that its appearance to somebody else is that… that he is being an official.

And I would think that that requires the fact that he’s assisting a Government agent in enforcing the law against somebody.

David C. Frederick:

And in the Medicare context this happens.

Blue Cross-Blue Shield, hired out by the Government to pursuant to a very detailed contract to engage in intermediary payments, and audits, forming Government functions.

I think that is a paradigmatic instance where the Government consists… and has ongoing supervisory relationship and a control over the conduct as it is implementing the Government’s function.

The Government employment example, like Soper, where the chauffeur is hired and brought into work with the agents, they’re having a ongoing supervisory relationship, telling him where to drive, what to do, where to go.

They are able to alter his conduct in the same way.

In many procurement instances, that is not true.

Anthony M. Kennedy:

How, how do you distinguish your Blue Cross example from the instance where drug companies are doing testing required by the FDA?

David C. Frederick:

That’s compliance with the regulation.

There are all sorts of instances, Justice Kennedy, where industry is required to do certain things before they can bring their product to market.

That’s not acting–

Anthony M. Kennedy:

Blue Cross is different because there they are acting as an intermediary of the Government?

David C. Frederick:

–They are performing a function at the Government’s direction for the Government.

The Government used to–

John G. Roberts, Jr.:

Well, that doesn’t seem to be a distinction.

The drug companies… the Government wants to make sure that drugs are safe and effective and so they issue regulations saying here’s how you have to test it.

They’re just, you could say, delegating the testing to the companies.

David C. Frederick:

–No.

Compliance doesn’t constitute a delegation, Mr. Chief Justice.

And the reason is quite clear from the fact that the Code of Federal Regulations is full of all sorts of very specific instructions to industry actors.

But when they comply with those rules they are not acting on behalf of the Government.

They are simply fulfilling a legal obligation that all Americans have to fulfill when confronted with a question of Federal law.

The situation for acting under is different, and in the Medicaid context, there’s a very special bureaucracy that has been created under the Secretary of Health and Human Services to perform Government functions that used to be performed that are now contracted out to Blue Cross-Blue Shield, and I acknowledge that that is a very different kind of situation.

But the Government, of course, in a multi-trillion-dollar budget purchases all sorts of items all the time.

Many of them are off the shelf.

And others are subject to very specific and detailed specifications.

But the compliance by a contractor with specific and detailed instructions would not itself transform that entity into a person acting under a Federal officer.

John G. Roberts, Jr.:

There’s a difference between you are providing products and complying with testing.

In other words, and if, in fact, the Government specifies precisely how the testing is supposed to be done to determine whether it, the Government, will approve the marketing of a particular drug, and the challenge, the litigation is to the testing.

Somebody sues as drugs company and says you know, you tested this drug wrong, we think you should have tested it some other way, and the drug company says the Government told us how to test it… why in that situation aren’t they acting under a Government official?

David C. Frederick:

Because it would be transforming a preemption defense into an opportunity to use a Federal officer removal to have a case from State court to Federal court.

This Court has said many times that preemption is an issue that can be decided by State courts, and the mere fact that someone is complying with detailed Federal regulations, and therefore is able to claim the cause of action is preempted as a result of those Federal regulations, does not transform the person into a person acting under a Federal officer.

Antonin Scalia:

Just out of curiosity, what, what happens to the, the employees of the private companies that run prisons?

Could they removed under this provision?

David C. Frederick:

It depends on the nature of the contract, Justice Scalia.

The things that the Court would look at would depend–

Antonin Scalia:

They either run the prison for a State, or for the Federal Government.

David C. Frederick:

–What the Court–

Antonin Scalia:

–or the Federal Government.

David C. Frederick:

–What the Court would look at is whether there is a ongoing supervisory relationship and whether the Federal officer has the power to transform or alter the conduct.

If those circumstances are met, then there would be a very strong argument that the person is acting under the Federal officer.

Ruth Bader Ginsburg:

Well, the prison case, there’s not any if about it.

A State, municipality, has a contract with a private entrepreneur to run a prison.

One question that I think must have come up in that context comes under the 1983 action in… against a, a prison guard, a privately hired prison guard.

David C. Frederick:

Of course, this Court has held that in that context there is not State action in that particular circumstance.

In fact, in the Third Circuit, Philip Morris defended its actions against a very similar claim regarding its marketing, that it was not a State actor for purposes of a Bivens action or a Section 1983 claim.

Antonin Scalia:

Is that the test here?

If it is State action, it is covered by this statute.

If it isn’t, it is not?

David C. Frederick:

There… that would certainly be a simple way to determine whether a person is acting under a Federal officer, if it meets the entwinement test articulated by this Court in that case.

Antonin Scalia:

But suppose it doesn’t.

David C. Frederick:

If it doesn’t–

Antonin Scalia:

Should I conclude it therefore is not covered?

David C. Frederick:

–No, I think that the proper standard, Justice Scalia, as I’ve said, is whether there is a ongoing supervisory relationship and the Government has the power to alter the actor’s conduct.

If those two conditions are met then a person can be said to be acting under the Federal officer within the meaning of this statute.

Ruth Bader Ginsburg:

I don’t follow that.

The Government is always altering people’s conduct when it regulates them.

David C. Frederick:

But not on a basis that is I think appropriate to understand a subordinate relationship.

The fact that there is alteration through Government regulation is simply compliance with law.

But to be acting under within the meaning of this Court’s cases… and I would direct the Court to the Greenwood case, which the other side basically ignores… in that case, in footnotes 17 and 20, this Court made clear that the phrase “acting under” is acting in that kind of subordinate relationship in the execution of laws.

Compliance is insufficient.

Otherwise, it would blow the whole statute apart.

Everybody in a regulated industry would able to remove under the Federal officer statute.

Ruth Bader Ginsburg:

Has it been done?

I mean, this is… I don’t recall any case like this.

Are there other product liability cases that are removed from State court to Federal Court on a similar basis?

David C. Frederick:

Justice Ginsburg, in our cert papers, and we didn’t repeat them in our merits papers, we give examples where a window blinds manufacturer, a medical device manufacturer, a whole series of others, a bank, a credit union, have attempted… after the Eighth Circuit’s decision in this case have removed cases to Federal court on the grounds that they are Federal officers because they are subjected to far more extensive regulations than Philip Morris.

David C. Frederick:

In fact, if you turn to volume 16 of the Code of Federal Regulations and turn to part 408, there’s a heading, and it says Deceptive Unfair Advertising of Cigarettes For Health Benefits.

Then underneath it it says “intentionally left blank”.

And the argument that these other entities have made is there are no Federal regulations concerning the marketing of “light” cigarettes but there are regulations concerning our products.

So therefore, we must be a Federal officer because the regime governing us is far more specific and detailed than it is for cigarettes.

If I could reserve the balance of my time.

John G. Roberts, Jr.:

Thank you, Mr. Frederick.

Mr. Gornstein.

Irving L. Gornstein:

Mr. Chief Justice, and may it please the Court.

Manufacturers of cars, drugs, medical devices, pesticides, home appliances and numerous other consumer good market their products in accordance with detailed and specific Federal Government regulation.

If that in a colorable preemption defense were sufficient to trigger removal, then it would create the potential for a very major shift of traditional State law litigation from State to Federal court.

Antonin Scalia:

Do they test their products before they’re marketed under rigid Federal testing regulations which are supervised by the Federal Government?

Irving L. Gornstein:

Let me talk about… there are, there are numerous testing requirements.

The automobile industry has to test for fuel efficiency; it has to test for crash testing under very specific requirements.

The home appliances have to be tested for energy efficiency under Federal requirements–

Antonin Scalia:

Is the Government supervising those?

Irving L. Gornstein:

–Is… the Government often says exactly what the test has to be.

Antonin Scalia:

Yeah, but is there some Government official who’s there to make sure that the testing is being done the way, the way it’s supposed to be, which is what, what is argued is the case here?

Irving L. Gornstein:

Well, I… I… I can’t say in every case that somebody is there to make sure–

Antonin Scalia:

They don’t have to be there every day.

Irving L. Gornstein:

–But… the Government is–

Antonin Scalia:

Policing–

Irving L. Gornstein:

–Policing and enforcing the testing requirements, and there’s testing in all these areas.

The other thing to say is that there’s no–

John G. Roberts, Jr.:

What’s… what’s your conclusion?

That those are not people acting under Federal officers–

Irving L. Gornstein:

–They are not people acting, because if they–

John G. Roberts, Jr.:

–Because policing sounds like–

Irving L. Gornstein:

–The Government’s policing is enforcing the law.

People who are, who are regulating their products in accordance with detailed and specific Federal Government regulation are acting on their own behalf in marketing the products in… on… in compliance with Federal law.

They are not acting under Federal officers… within the meaning of the Federal… within the meaning of this statute.

John G. Roberts, Jr.:

–What about… what about USDA food inspection?

Isn’t a lot of that delegated to the producers rather than the Government officials?

Irving L. Gornstein:

The Government–

John G. Roberts, Jr.:

But you still get a Government stamp.

Irving L. Gornstein:

–You can have different situations.

And I’m not sure about the precise one you’re talking about.

But you can have situations and the FAA is one, where the FAA has a statute which says you can delegate to third parties inspecting aircrafts, and the Agency certifies through regulation that this person is inspecting as a representative of the FAA.

Now that’s a varied situation.

In that kind of situation the person would acting under.

But if the person is simply complying with Federal requirements about how to test, that is private behavior, acting on their own behalf, in order to further the marketing of their products.

John G. Roberts, Jr.:

So if you are a federally certified inspector you are acting under–

Irving L. Gornstein:

Certified as a representative of the FAA, yes, you are.

John G. Roberts, Jr.:

–What about private transportation of mail?

Is the private contractor who’s carrying U.S. mail, is that person… could he remove a case under this provision.

Irving L. Gornstein:

The standard for contracts is some contracts are in and some contracts are out in our minds, depending on whether the… they are subject to the guidance, supervision, or control of federal officers.

And so if they are performing a service on behalf of the federal government and they are subject to control or supervision, then they could be acting under federal officers.

Now the situation here, the test that the court of appeals used, simply acting in conformity with detailed and specific Federal regulation, is one that would lead, as I said, to a very substantial change in where State court claims have been litigated up until now.

Antonin Scalia:

–I have a contract to provides food to the Senate cafeteria, okay.

And the Senate or maybe the Executive Branch, for that matter, closely supervises my preparation and service of that food.

Am I acting under, even though I’m not assisting the Government in any governmental function at all?

Don’t you have to be assisting in the performance of a governmental function?

Irving L. Gornstein:

But the problem with that, what you’re saying, is the 1948 statute expanded it all Federal officers.

So if Federal officers were running that cafeteria, those Federal officers could remove because they are performing a duty under Federal law to provide that service to Federal employees.

Now, once the statute expanded out in 1948 to cover Federal officers who perform any function, not just enforcement functions, it carried with it persons who act under Federal officers in performing those very same functions.

So if the Federal Government hired an employee to serve food who was acting under a Federal officer who was responsible for the delivery of food, that person would be acting under a Federal officer within the meaning of this statute, assuming that the person was subject to the control, guidance, and oversight in the delivery of that food.

Now, this case is very far from the historical examples of citizens being called upon by customs officers to assist in the enforcement of the revenue laws or the chauffeur who was, under a Federal employment contract, who then… assisted revenue officers in carrying out a raid on a distillery, or the military corporal who was involved in assisting Federal officers in making an arrest.

Those are the historical examples.

They point to the principle that you are talking about people who are in a subordinate position and who are acting on behalf of or otherwise assisting Federal officers in carrying out their duties.

As for the alternative ground for affirmance here, that is that there has been a delegation, testing delegation of authority, there has been no delegation of authority.

It is unusual for the Government to delegate out its own regulatory responsibilities to the very industry it is regulating and it didn’t do that here.

Irving L. Gornstein:

What the Government did is that it had at one time its own testing program.

It eliminated that testing program altogether, which had not been required by statute but was simply the result of a commission vote.

And after that, the industry continued to carry on the very testing that it had been doing all along as a result of an agreement among industry participants.

Now, even if–

John G. Roberts, Jr.:

You don’t care what kind of testing they do?

They can change the method and change the way to resolve–

Irving L. Gornstein:

–Actually, the Federal Trade Commission cannot require the particular testing method.

But even if you assume it could, Mr. Chief Justice, that would simply be a regulatory condition on the marketing of a product.

And acting in accordance with a regulatory condition on the marketing of a product is not acting under a Federal officer, for the reasons I’ve discussed.

Ruth Bader Ginsburg:

Mr. Gornstein, was there any Government litigation against the cigarette companies?

Irving L. Gornstein:

There has been Government litigation against the cigarette companies for allegations that are very similar to the complaint in this case except that it is being brought under the RICO statute.

That litigation is pending in the D.C. Circuit and the basic allegation, one of the allegations of the complaint, is that the cigarette companies have falsely marketed their products as being lest dangerous than other products when, in fact, they are not.

Now, the final point to be made is, even if there was a delegation of authority here, it would not affect the disposition of this case because this complaint does not challenge the testing itself.

What this complaint says is that these… that the Respondent here engaged in deceptive advertising by essentially designing cigarettes that would cheat the test and then marketing the cigarettes as light when in fact they are not.

If the Court has no further questions–

John G. Roberts, Jr.:

–Thank you, Mr. Gornstein.

Mr. Olson.

Theodore B. Olson:

Thank you, Mr. Chief Justice, and may it please the Court:

The heart of this lawsuit is that official FTC tar and nicotine ratings generated by testing performed by Respondents under the FTC’s supervision and transmitted to the public in Respondent’s advertising at the FTC’s insistence is misleading; therefore, the creation and transmission of the allegedly misleading data for which Respondents are being sued were acts performed by Respondents to assist the FTC in performing its official responsibilities.

David H. Souter:

Did the FTC ever adopt a regulation saying you’ve got publish these measurements?

Theodore B. Olson:

No.

The FTC did not do it through a regulation.

If the Court were to look at pages 93 to 110 of the Joint Appendix, you would see testimony by the Chairman of the FTC and the head of the consumer protection part of the FTC saying: We chose not to do it by regulation because we found that it was much more efficient, much more fast, and much for effective to force the tobacco companies into what is called a voluntary agreement requiring precisely that information.

David H. Souter:

But if one of the companies had said, we’re sick of doing this, we don’t like the numbers we’re getting, whatever, we’re just not going to do it, presumably if we, you know, accept that testimony at face value, the FTC would have moved and said, okay, I guess we’re going to have to have a reg or a statute or what-not.

During that period of time, the company wouldn’t be committing any offense?

Theodore B. Olson:

Yes, it would.

In a 1978 advisory opinion, which is found on pages 202 of the joint appendix, the FTC stated categorically… and the joint appendix, by the way, Justice Souter, is full of exactly what I’m talking about.

The FTC said tar values in cigarette advertising must be consistent with the latest FTC number and stated that it would be deceptive to advertise higher numbers or lower numbers or different numbers.

In other words, the enforcement wouldn’t be through the enactment of a regulation.

The FTC… again, I refer to the testimony of the Chairman of the FTC: The FTC does things this way because–

David H. Souter:

What is this… I’m just not following it.

What is the source of the so-called FTC number> [“] to which advertising must conform?

Theodore B. Olson:

–The source of the FTC number is the FTC test, alternatively called the Cambridge filter test.

David H. Souter:

The Cambridge test, yes.

Theodore B. Olson:

But the FTC calls it the FTC test.

It was devised by the FTC.

It has a specific set of requirements.

The FTC itself performed that test for a number of years.

Then in 1987 the test was transmitted… the FTC stopped doing it and allowed the industry to do it itself because the… again, in that same testimony by the Chairman of the Commission, he said that: It will be more effective and easier for us, and we can use our funds for other purposes if the industry does it.

David H. Souter:

I understand that.

But if the… if a given cigarette manufacturer simply said, we’re not going to give any numbers, we’re simply going to say FTC wanted numbers and they wanted the numbers in accordance with the Cambridge testing method, they would then have had to regulate, adopt a regulation, or get Congress to pass a statute.

Theodore B. Olson:

It’s fairly… what happened, it’s fairly clear from what the FTC has said, they would bring an action for deceptive advertising if there was anything involved in the marketing of those cigarettes that had to do with tar and nicotine levels.

David H. Souter:

Okay.

Now, in my hypo they just say: Look, we’re just going to say “Smoke Marlboros”.

We’re not going to say the nicotine is low or anything.

The FTC would not at that point have any basis to charge a violation?

Theodore B. Olson:

No, they wouldn’t.

But that is not of course this case.

This case involves–

David H. Souter:

All I’m getting at is the FTC had no basis other than a voluntary agreement to require them to publish any numbers or to publish any numbers in accordance with the Cambridge–

Theodore B. Olson:

–The history of that is set forth in the record and it’s clear.

David H. Souter:

–Right.

Theodore B. Olson:

And the answer is that the FTC announced a proposed rule.

It then sent a letter to the tobacco companies saying, it would be much easier for us and much easier for you to enter into a voluntary agreement.

It gave them 30 days to come up with a voluntary agreement.

They produced an agreement which the FTC rejected because it allowed certain flexibility with respect to the testing and didn’t adhere specifically to the FTC test that you’re referring to.

It rejected that first agreement.

The tobacco companies came back with another agreement.

The FTC accepted that agreement and said that it would enforce the voluntary agreement against the tobacco companies and if they deviated from it they’d return to the rulemaking process.

Ruth Bader Ginsburg:

Again, you’re talking about an agency that has set certain standards that the entity its regulating must meet.

Ruth Bader Ginsburg:

They must meet all kinds of requirements for certain kinds of tests by OSHA, say, for example.

Think of pesticides, think of hazardous substance… quite precise tests that the Government says you must make this test before you market that dangerous product.

I don’t see how cigarettes are any different from hazardous wastes, pesticides, just the vast number of potentially dangerous to health products that are marketed and the Government says: We’re not going to let you put those things out on the market unless you go through a certain testing regimen.

That doesn’t make the party an agent of the Government for the testing purposes.

Theodore B. Olson:

Let me see if I can answer that question, Justice Ginsburg.

This is not merely compliance with the rule.

This is not merely testing of products.

The FTC created the standard.

It created the testing mechanism.

It performed the tests according to very detailed criteria.

Those tests are now performed by the industry for the FTC.

Those test results must be reported to the FTC.

The FTC then reports those results to Congress and publishes them in the Federal Register as the official FTC tobacco ratings, and then the FTC requires–

Antonin Scalia:

They are called FTC ratings?

Theodore B. Olson:

–Yes.

Antonin Scalia:

And they are called… in the regulations it’s called the FTC test, even after it has been done by the companies?

Theodore B. Olson:

Yes, yes, Justice Scalia.

And in the case that you–

Antonin Scalia:

That’s very careless, isn’t it?

Theodore B. Olson:

–It’s not careless.

They are pronouncing the facts.

And in a case that you participated in in the D.C. Circuit, the brief in that case, the Brown and Williamson case that was mentioned before Justice Bork wrote the opinion, in that brief I counted… I stopped counting about 10 or 12 times after the words FTC test methodology> [“], the FTC official ratings> [“], the FTC this, the FTC that.

Ruth Bader Ginsburg:

But there must be many times when an agency prescribes a test that a regulated party must comply with.

It’s still a relationship of a regulator, the FTC, sets standards that the regulated party has to meet.

I just don’t see… it could be called FTC test> [“], but it’s a test for what?

Are you complying with the law when you’re manufacturing and marketing this product?

Theodore B. Olson:

Let me try again, Justice Ginsburg.

If the FTC had said to four local hospitals, please perform this test according to this specification for us, the FTC, and then give us these results, which we will then publish as the FTC official ratings of cigarettes, and then if those hospitals were sued because the testing and the results were alleged to be misleading, I think even the government would admit that that case could be removed under the Federal officer removal statute.

There is nothing–

David H. Souter:

What if in your hypo the Government came along and said, in order to run your hospital, you’ve got to disclose certain facts.

David H. Souter:

Otherwise we’re going to shut it down.

And those facts from that point on are like your hypo.

Would your conclusion then follow, that they were acting under?

Theodore B. Olson:

–No.

It would be a vastly different situation.

David H. Souter:

Why isn’t that the situation that we’ve got here?

Theodore B. Olson:

The difference, the difference is, is that, A, the test is, is… the FTC and the record is full of this, too; the FTC set a goal for itself very early in the regulatory process.

It wanted consumers to purchase lower tar and nicotine cigarettes.

Now how was it going to accomplish that, the FTC goal?

It devised this test.

It made it official FTC test.

Official FTC ratings.

What this is doing is conscripting in a way or accepting here’s what the–

Ruth Bader Ginsburg:

I thought that, Mr. Olson, that the cigarette companies wanted to make a light brand so that they could keep customers who might be tempted to quit if there was only the heavy kind.

But to say that, the light cigarettes were forced on the cigarette companies by the FTC certainly–

Theodore B. Olson:

–Well, in, in 29… this is in the record.

The FTC set forth goals, it’s 29 Federal Register 530, in… on January 22, 1964, that the FTC described its goal as to encourage the development of less hazardous cigarettes.

That was done in conjunction with a earlier or a contemporaneous… nearly contemporaneous Surgeon General report which is reported at joint appendix pages 57 to 60, that the Government had as its goal the responsible promotion of cigarettes low in tar and nicotine.

Now I’m not saying–

Ruth Bader Ginsburg:

–Well, any product that the Government supervises, certainly the Government would want to promote a safer… I mean, think of a jet ski.

Think of… products are marketed because people want them, and off course the Government as supervisor will want to encourage a safer product.

But let me ask you a different question, Mr. Olson.

The removal area has been really closely guarded by Congress.

You know it’s not easy to get a case out of State court and move it to the Federal court.

In fact, Congress has said if the Federal court shifts it back, no matter how wrong a that decision was, it stays in the State court.

One can’t remove… you may have a wonderful Federal defense, a preemption defense.

You can’t remove on that basis.

You may have a counterclaim, so you’re really the same as a plaintiff.

You can’t remove on the basis of a counterclaim.

Well, Congress has been so careful to let the State courts do State tort litigation.

Ruth Bader Ginsburg:

Then we are supposed to read into a Federal officer removal statute, that kind of, the removal of a State tort case from State court to Federal court?

Because that’s quite the fashion.

Theodore B. Olson:

–The Government says that the test is… is, that if an individual, private actor, is assisting the Federal Government in performing the official Government function, the case is appropriate to be removed.

That is what the Government says section 1441(a)(1) means.

This Court has said that section shall be liberally construed, not narrow or limited in its construction, and not frustrated by a narrow, grudging interpretation.

Stephen G. Breyer:

Is this right?

If I have it… I’m using sort of a silly example to explain it to myself.

But I’m thinking the FDA… or no, the Agriculture Department decides they’re really interested in red apples not being red.

So they say we hire thousands of apple lookers, and the apple lookers look at all the apples and they devise a redness test which is really fabulous, you know, very precise.

Theodore B. Olson:

The apple lookers’ device?

Stephen G. Breyer:

No.

The FDA.

The FDA has the apple looking redness test, and the apple lookers apply the test.

And if you pass the test, you can say red apple, and if you don’t pass the test you don’t.

Now I’ll give you two different things that happen.

One day because of budget cuts the FDA hires a lipstick company to look, because they’re experts on redness; they know how to perform a test.

[Laughter]

The other possibility is they say to the apple companies, you do your own looking.

Now I think there’d be the difference that you’re trying to argue, and I don’t think it cuts or you.

Because in the first case, what they’ve done is hire somebody to perform a governmental function.

In the second case, what they’ve done is to the people who are regulated and have the interest, in announcing they have red apples, they’ve said, you do it yourself.

Theodore B. Olson:

Ah, but Justice Breyer, what happens here is they say you do it yourself, and the Chairman of the… Chairman of the FTC said why.

Here’s why; he said it’s better undertaken by private researchers.

It’s a mechanism that we can rely on to ensure accurate reporting.

Then, what the FTC did is to supervise the performance of the test.

It goes into the laboratories.

It makes sure it has done it its way.

And then it accepts those results–

Stephen G. Breyer:

That wouldn’t be relevant, because the… the problem with the, with the approach that you’re taking, as I see it, would be that, that there are probably a lot of instances where a regulated firm, the regulation meaning yes/no, market/not market; yes/no, advertise/not advertise, performs all kinds of tests to see if it is yes or no.

And if you’re going to start taking that kind of firm and breaking it apart to say whether it’s doing the testing part or some other part, you’re really opening the gates.

Theodore B. Olson:

–But we’re… we’re not.

We’re suggesting… you’re… what you’re doing in your question and your statement is to disaggregate the pieces of the process here.

Here it is the FTC’s goal, it’s FTC’s method; it’s the FTC’s test which is supervised but done by the companies.

And then it becomes the FTC official ratings which they then must transmit to the company in their advertising.

And now they’re sued because those ratings that they’ve done according, for the FTC, according to the FTC standards, are alleged to be misleading.

So it’s… it’s not possible to disaggregate it.

It is a whole spectrum; the testing itself and the reporting… is done by the industry because the FTC wants it as its official numbers, and it wants its official numbers given to the consumers.

And it is setting an advisory opinion, even if you tell them that your cigarettes have higher tar or lower tar, if you don’t report our numbers, you will be sued for deceptive advertising.

Stephen G. Breyer:

All right.

So what you are saying is that this function is so separable and it is so much a FTC function and it is so much like delegating it to the third party that did nothing of the testing, that even if you delegate it to the second party which does testing and then benefits from the testing, that’s still not enough to take it out.

Theodore B. Olson:

What I was saying in answer–

Stephen G. Breyer:

Is that… have I got that right?

Theodore B. Olson:

–I think so.

Let me restate it, because I think I understand what you’ve said.

And I think what I was trying to say with respect to Justice Ginsburg’s question, if the… all those private hospitals did it, I think the Government would admit, the Federal… and then is there an exception in the statute?

If the regulated entity, in this case the tobacco company, does it rather than the hospital?

And there’s nothing in the statute that says that.

Stephen G. Breyer:

No.

But I… so, so to use my silly example, I mean, it is like the lipstick company.

You’re saying, well if they did it to the lipstick company it would be clearly that they’re the Government agent.

And it is so technical, so governmental, so heavily involved with the Government for testing, that even though you give it to the apple growers themselves, they are still Government agents when they perform it.

Theodore B. Olson:

The Agency decided they are any–

Stephen G. Breyer:

I, I see the argument now.

Theodore B. Olson:

–Yeah.

Stephen G. Breyer:

Then is there any, any authority ever, that you found for that?

[Laughter]

Theodore B. Olson:

This is, as the Eighth Circuit said, a very unusual situation.

But the closest analogies are, are to the Government contractor cases.

And by the way, it doesn’t require a contract to be acting under the supervision.

I heard the Government say that what you had to have is someone supervised by the Government with the Government’s power to alter the actor’s conduct.

Ruth Bader Ginsburg:

Well there’s one different.

If you’re doing it for the Government, the Government says we want Agent Orange; we know it’s a very dangerous substance.

So they give you an order; we’re going to make very precise specifications.

But you’re doing it for us.

We, the Government, want that, and so we are going to put tight controls on your manufacturing it for us.

A little was different from a commercial company going out to sell market goods to the public at large?

Theodore B. Olson:

Justice, I understand there’s a distinction.

Because the Government is the actual consumer of that product.

But here the Government announced that its goals were to accomplish a market in lower tar cigarettes.

And it said with respect to the testing, it’s better undertaken by private researchers.

So it was fulfilling the Government’s desire to have something they could save the money, if they close down the laboratory, they said in this testimony, we’ll use the money for enforcement pumps against the cigarette company.

We can regulate and determine, fulfill the official functions of the Government more effectively, more efficiently if we do it this way.

So it is the Government’s objective.

It is the Government’s results they are seeking to obtain.

And they’ve conscripted voluntarily the industry to do the thing for it and then it calls it its official results.

Antonin Scalia:

Have, have they imposed its official… has it imposed, the FTC, its official results on any company that was not a participant in this… in this testing lab?

Theodore B. Olson:

I don’t know the answer to that.

I think the answer is no.

I think that what, what the FTC was able to accomplish at that time was to get every… the major players in the marketplace with respect to participation in this.

I don’t know–

Antonin Scalia:

Your case would be stronger if they weren’t doing it just for themselves.

If in fact that they were doing it for the FTC who imposed it even on somebody else.

Theodore B. Olson:

–That’s the private hospital example that we were talking about.

Antonin Scalia:

Yeah.

Theodore B. Olson:

I don’t know that it would be stronger.

Why would it be weaker–

Antonin Scalia:

Because here you’re doing it for yourself.

You want to advertise low… low… low tar cases.

And the FTC says the only way we’ll let you do it, the only way we’ll let do you that advertising is if you test them pursuant to this, this system that we established.

And you say okay.

Antonin Scalia:

We’ll test them pursuant to the system you’ve established and… and everybody goes happily away.

Theodore B. Olson:

–Well, that happens to be… there happens to be a coincidence of what the Government wants to accomplish and what the industry is willing to and wants to accomplish.

I’ll accept that.

So does that mean there’s an exception to the Federal officer removal statute, if the person who is asked to help the Government, does help the Government, is sued because his actions in helping the Government occasioned someone to bring a law suit?

John G. Roberts, Jr.:

Mr. Olson, you’ve been talking a lot about testing.

But when you look at the complaint in this case, testing is a small part of it.

They’re complaining about the modification of the tobacco blend, the weight, rod length, the circumference, use of reconstituted tobacco sheets.

In other words there’s a lot going on here in the complaint here besides the testing.

And if the Government is in no way specifying the tobacco blend, the weight, the length, all these other things that are allegedly part of the manipulation to affect the figures.

Theodore B. Olson:

Well, in the first place if there’s anything in the complaint that allows a removal then the case can be removed.

That’s the Exxon versus Allapattah case that the Court decided just a couple of terms ago.

But secondly, let me address directly what you are saying.

Throughout the complaint, in the complaint itself, I found references to the testing machine or method eight times in the complaint.

They say… they complain about representations that cigarettes contain less tar and nicotine than regular cigarettes.

They base that on the test results.

They then say as measured by the industry standard testing apparatus.

And let me refer to what the Petitioners said in their motion to remand to the State court.

They complained… they said the basis of this complaint is misleading low tar and nicotine ratings as measured by the company’s testing procedures.

That’s in the Petitioners’ motion to remand.

Furthermore, the district court interpreted the complaint precisely the way we are explaining this to the Court today.

The district court said that over and over again, words of the district court at page 42a of the petition appendix, the court concludes that the FTC’s regulation of the cigarette companies’ testing and advertising cuts to the heart of the plaintiff’s lawsuit.

Well, the heart of the plaintiff’s lawsuit is testing and advertising.

The testing is required by the FTC.

The results of the testings are the FTC’s numbers.

And the advertising contains the FTC’s numbers because the FTC requires it.

The circuit court interpreted–

Ruth Bader Ginsburg:

But the company is doing it so it can stay in business and market this product, not as a service to the U.S. Government.

Theodore B. Olson:

–I don’t deny that the… the Respondents in this case are engaged in industry.

A regulated industry by the FTC.

And that’s correct, Justice Ginsburg.

Theodore B. Olson:

I don’t think there’s an exception.

And the Government hasn’t suggested there’s an exception in the Federal officer removal statute because someone happens to be in the industry which is asked to help the Government perform a particular function.

There is no logic to that, and it certainly would be not a liberal interpretation of the Federal officer removal statute.

The circuit court also said the very… and I think this is worth noting, at page 15a of the appendix to the cert petition, the very combination the plaintiff challenges as deceptive is the same combination the FTC requires not to be… to put in your advertising in order not to be deceptive.

So what is required by the FTC of the plaintiffs, the advertising of these test… official test results… is precisely what the Petitioners say, and the Petitioners say is deceptive.

That’s the basis for their lawsuit.

Antonin Scalia:

Well that’s a good, that’s a good preemption argument.

Theodore B. Olson:

If the–

Antonin Scalia:

I’m not sure it has much bearing upon whether–

Theodore B. Olson:

–Well, it is a good preemption argument, Justice Scalia.

That will be played out either in the State court, depending upon how you rule, or the Federal court.

But it’s… that’s the nexus and the color of Federal authority that you talked about in your dissenting opinion in that Acker case.

The Court in the Acker case, Jefferson County versus Acker, said that the allegations in the petition and in the removal petition must be… and especially since they weren’t challenged in this case, the factual allegations and the characterization of the complaint were not challenged in this case… must be accepted as true by this Court.

And Chief Justice Roberts, it’s not only the allegations in the complaint and the characterization in the removal petition, but it’s what the district court decided the complaint said.

Anthony M. Kennedy:

I know all that’s involved here is the forum and removal; but if we were to rule for you that there’ is Federal officer status here, would that effect any of the substantive determinations on the preemption question, etcetera?

Theodore B. Olson:

No, I don’t think so.

I think–

Anthony M. Kennedy:

It’s just a forum question?

Theodore B. Olson:

–Yes, it is.

And this is an appropriate case for evaluation of the conduct of the person acting–

Stephen G. Breyer:

I have a quick question.

Is there anything in the complaint that alleges you didn’t perform the tests properly?

Theodore B. Olson:

–Yes.

Yes.

There is.

But as I said, that is not… I mean, the part of the complaint, as the district court saw it and the circuit court saw it, is much more than that.

It’s the testing and so on and so forth.

And I don’t think it would make any difference because even if there’s an allegation, which there is in the complaint, that the test was manipulated or gained or circumvented, it goes back to whether it’s a good test or not.

John G. Roberts, Jr.:

I don’t understand your response to Justice Kennedy.

If we determine that you’re acting under the direction of a Federal officer, that would seem to me highly pertinent on the merits of a preemption argument.

John G. Roberts, Jr.:

So it would not be just the forum, but kind of getting into the preemption merits.

Theodore B. Olson:

Well, it may perhaps be.

But what, it’s an interpretation of the statute.

I don’t think there’s any doubt about that anyway, Chief Justice Roberts, because it’s clear that what was being done here is something that the FTC wanted done in the way the FTC wanted it done.

I don’t know how the… I believe that the preemption argument is very, very strong, because the lawsuit, the substance, the guts, the core, the heart of the lawsuit, as the district court said and the Eighth Circuit said is, you’re doing what the FTC required you to do, and the plaintiffs say that it’s deceptive.

And by the way, it’s very clear from the record in the joint appendix and in the district court decision and in the remand in the motion… the motion to… the petition to remove, that the FTC knew exactly the deficiencies that are alleged in the complaint.

The FTC has been aware of the fact that people smoke differently, that cigarette… the design of a cigarette may affect the outcome of the test.

But what the FTC, knowing that full well, said, well, people might smoke things differently and you might get more tar and nicotine than the FTC ratings produce.

And the FTC with full awareness said, we understand all that, but what we want is for the consumers to have an ability to compare this cigarette with this cigarette, and we have devised a test that will allow you to compare an apple to an apple.

Now there are other things that will–

Antonin Scalia:

–It all comes back to me now, that case you mentioned.

Lip drape, that was the lip drape case, wasn’t it, where people smoke differently because some of them cover up the holes in the filter when their lips… the lip drape.

The naked lip drape.

Theodore B. Olson:

–That is the case.

I don’t know if you’ve charactered it the same way I did, but the apples to apples thing is tied in with your hypothetical, Justice Breyer, about the apple inspectors.

Stephen G. Breyer:

Is it the apple institute who’s doing the testing?

Theodore B. Olson:

It’s the Tobacco Institute testing facility–

Stephen G. Breyer:

No, I said apple institute.

You know, that seemed to me to be the case where it was the apple institute or whatever it was that was the delegate, and then they applied the test, and the people they were applying the test to weren’t.

Theodore B. Olson:

–It’s a facility of the tobacco industry.

The FTC perceives it as… these industries… and these companies, and as I said, even the petitioners in their remand petition are challenging the low tar and nicotine rate measured by the company’s testing procedures.

So yes, I’d like to have it be something different but it isn’t something different.

It is what the companies have done, and through this mechanism.

This case comes down to the fact that the FTC wanted certain things done.

It decided how certain things would be done.

It calls the results of those the official FTC ratings.

It wants those ratings delivered to the people.

And the tobacco companies have done that and they’re being sued because they say… because that information which they’re delivering, that they’re creating and delivering at the request of the Government, is alleged to be deceptive.

This is the perfect case for a removal under the federal officer removal statute.

John G. Roberts, Jr.:

Thank you, Mr. Olson.

John G. Roberts, Jr.:

Mr. Frederick, two minutes remaining.

David C. Frederick:

If this is a perfect case for Federal officer removal, there are easily 40,000 others in the State courts waiting to he removed.

Antonin Scalia:

Well, how many others involve the agency calling the result of the private action the FTC figures and the FTC test?

David C. Frederick:

I don’t know the answer to that, but I can tell you that in lots and lots of areas, the Federal Government wants safer, cleaner cars, safer refrigerators–

Antonin Scalia:

But they don’t… they don’t put it out to the public as the Federal Government’s figures.

David C. Frederick:

–They do–

Antonin Scalia:

That makes a big difference.

David C. Frederick:

–It does not make a difference.

And the reason it doesn’t make a difference is if you look on your refrigerator, if you look on your lawn mower, if you look on your automobile, there are Government standard tests that have to be complied with for an industry to be able to sell its products.

And if Philip Morris is correct here, you are going to be announcing a dramatic transformation of the role of Federal and State courts, because every time there is even a colorable argument for preemption, the industry will take the case to Federal court saying we’re acting under the Federal officer, and therefore, don’t–

Antonin Scalia:

Just don’t call it the Government’s test.

Don’t call it the Government’s figures.

Call it the industry’s figures.

David C. Frederick:

–The description shouldn’t make a difference, particularly where it is in a voluntary agreement that was not put out for notice and comment rulemaking, and it was done for precisely this reason, Justice Scalia.

For decades, the cigarette companies were rightly perceived as deceiving the public about the health content of their products.

John G. Roberts, Jr.:

Now the FTC told us why they did it.

They did it because they could save the money by having the industry do it rather than them doing it.

David C. Frederick:

They also said, Mr. Chief Justice, that they expected the companies to police each other, which is exactly what happened when the Barclay cigarette came up.

Philip Morris was the one that complained and said that cigarette doesn’t comply, it’s been manipulating the FTC Cambridge filter method.

So the FTC found a cheaper way to do regulation.

Compliance with rules does not transform an entity into a Federal officer.

Thank you.

John G. Roberts, Jr.:

Thank you, Counsel.

The case is submitted.