In this case, the U.S. Court of Appeals for the Eighth Circuit held that cigarette manufacturer Philip Morris was entitled to “remove” cases filed against it in state courts to federal courts, under a statute designed to protect federal officers and employees. Public Citizen filed an amicus curiae brief in support of the plaintiffs’ petition for rehearing in the Eighth Circuit, which was denied with two judges dissenting. The plaintiffs then filed a petition for certiorari in the Supreme Court, and Public Citizen again filed an amicus brief supporting the petition. The Supreme Court granted that petition on January 12, 2007.
The question before the Court was whether a private actor doing no more than complying with federal regulation is a “person acting under a federal officer” for the purpose of 28 U.S.C. 1442(a)(1), entitling the actor to remove to federal court a civil action brought in state court under state law. Public Citizen filed an amicus brief supporting the petitioners, in coalition with the AARP, National Association of Consumer Advocates, U.S. PIRG, Consumer Federation of California, Congress of California Seniors, and Public Health Advocacy Institute. The brief emphasized the importance of protecting the rights of consumers harmed not only by tobacco companies but also by companies in other industries highly regulated by the federal government, such as those providing prescription drugs and medical devices, long term care, and nursing home services, for example.
On June 11, 2007, the Supreme Court ruled unanimously that Philip Morris could not receive the protection of the federal officer removal statute. The Court held that compliance with federal agency regulation simply is not equivalent to “acting under” a federal officer. The opinion lays to rest any claim that removal is in order merely because the defendant claims that it acted under the compulsion or influence of federal regulation. After this decision, a plaintiff’s choice of state court as the forum for a tort or injury case against a highly regulated corporation will be more secure.