author: STEPHEN A. HIGGINSON, Circuit Judge:

text:
    STATE of Texas, Plaintiff-Appellant v. Charles KLEINERT, Defendant-Appellee
    No. 15-51077
    United States Court of Appeals, Fifth Circuit.
    FILED April 20, 2017

      Rosa Theofanis, Michael Scott Taliafer-ro, Assistant District Attorney, District Attorney’s Office, Austin, TX, for Plaintiff-Appellant.
    Randy Tom Leavitt, Law Office of Randy T. Leavitt, Eric J.R. Nichols, Beck Redden, L.L.P., Austin, TX, Eric J.R. Nichols, William R. Peterson, Beck Redden, L.L.P., Houston, TX, for Defendant-Appellee.
    Gary Lynn Bledsoe, Bledsoe Law Firm, L.L.P., Robert Stephen Notzon, Law Office of Robert S. Notzon, Austin, TX, for Amici Curiae ■ Austin Branch of the NAACP and Texas State Conference of NAACP Branches.
    H. Thomas Byron, III, U.S. Department of Justice, Washington, DC, for United States.
    Richard Lee Swick, Managing Senior Counsel, Swick & Shapiro, P.C., Washington, DC, for Amicus Curiae FBI Agents Association.
    Michael L. Rickman, CLEAT, Austin, TX, William J. Johnson, National Association of Police Organizations (NAPO), Alexandria, VA, for Amicus Curiae National Association of Police Organizations.
    Michael L. Rickman, CLEAT, Austin, TX, for Amicus Curiae Combined Law Enforcement Associations of Texas.

      Before HIGGINBOTHAM, ELROD, and HIGGINSON, Circuit Judges.
   STEPHEN A. HIGGINSON, Circuit Judge:

The District Attorney of Travis County, Texas, sought to prosecute federal task force officer Charles Kleinert for unintentionally shooting an unarmed suspect as Kleinert tried to arrest him. Invoking his status as a federal officer, Kleinert removed the state prosecution to federal court and asked the district court to dismiss the indictment. Kleinert argued that under the Supremacy Clause, he was immune from prosecution by the local district attorney because he acted in his capacity as a federal officer and his conduct was otherwise lawful. After a three-day eviden-tiary hearing at which the district attorney’s office presented little evidence to rebut Kleinert’s version of events, the district court — which the parties agreed would resolve all facts relevant to Klei-nert’s immunity defense — dismissed the indictment. Because the district court properly exercised jurisdiction and properly applied the doctrine of Supremacy Clause immunity, we affirm.

I

Charles Kleinert began working for the Austin Police Department in 1994. In 2011, the FBI specially deputized Kleinert according to Titles 21 and 28 of the United States Code. These deputations “charged [Kleinert] with the duties of investigating violations of the ... criminal laws of the United States....” After his deputations, Kleinert worked full-time for the FBI’s Central Texas Violent Crimes Task Force. He reported to work each day at an FBI agency, received top-secret security clearance from the federal government, was supervised by a superior FBI agent, and used FBI-issued equipment. As a task force officer, Kleinert’s day-to-day duties included investigating federal crimes — specifically, bank robberies.

On the morning of July 26, 2013, someone robbed Benchmark Bank in Austin, Texas. A bank employee described the robber as an older white man. The Central Texas Violent Crimes Task Force, including Kleinert, investigated the robbery. As part of the same-day investigation, Klei-nert, in plain clothes, went to the bank to obtain surveillance footage from two employees, Sheila Bostick and Kimberly Menge. Although it was normal business hours, a sign on the front door indicated the bank was temporarily closed (due to the morning’s robbery). While Kleinert, Bostick, and Menge discussed the robbery in Menge’s office, a black man — later identified as 32-year-old Larry Jackson — came to the bank’s front door. Seemingly realizing the bank was closed, Jackson appeared to leave, walking away to the north side of the bank, but returned one minute later from the south side and pulled on the locked door again.

Thinking she could point Jackson to an open bank nearby, Bostick approached the front door to talk to him, while Kleinert and Menge remained in Menge’s office where they could see • and hear Bostick’s conversation with Jackson. Jackson identified himself as a customer named “William Majors,” and asked to withdraw funds from “his” (Majors’s) account. Both Bos-tick and Menge knew that Jackson was not William Majors; the two women knew Majors because he was not only a large account holder, but also close friends with the bank’s president. Uncomfortable with Jackson’s representations, Bostick left Jackson outside and asked Kleinert to talk to him.

According to Kleinert, he went outside “to detain Mr. Jackson and question him ... about what he was attempting to do.” Kleinert recounted his conversation with Jackson as follows:

I asked him if he was Mr. Majors. He said he was not. I said, “What are you doing here?” He said, “I’m trying to get money out of the bank.” And I said, “But you’re not Mr. Majors.” And he said he was Mr. Majors’[s] brother. So I said, ‘Well let’s call up your brother and see what’s going on.” He never attempted to make that call [and] that led me to believe that he was fabricating that as well.... He had the phone up to his face, and ... said, “Mom, is the tow truck there yet?” And I said, “Were you involved in a collision?” And he said, “Yeah I was. That’s why I’m here. I need to get money for a tow truck and for a rental car.” And I said, “Well, where was it?” And he said that it was on 1-35. And in looking at him dressed the way he was, dark blue shirt, I asked [him], “How did you get here?” And he said he walked. Well, I knew on that hot day, he did not look like he had been perspiring at all. And if he had walked from 1-35, he definitely would have been.

After this exchange, Jackson “took off running,” and Kleinert “immediately gave chase,” catching up to Jackson under a traffic bridge that travels over a large grassy area with footpaths. As Kleinert neared Jackson from behind, he “pulled [his] weapon, and ... yell[ed]: ‘Get down on the ground. Get down on the ground.’ ” Jackson “froze” for a moment before running away again. Kleinert chased Jackson and was “able to reach out with [his] left hand and grab [Jackson] by the shirt[.]” Kleinert still held his gun in his right hand. According to Kleinert, despite his hold on Jackson’s shirt, Jackson continued to run with Kleinert in tow and tried to climb up a rocky incline leading to the traffic bridge. As Jackson tried to climb the incline, Kleinert used the “meaty part” of his right hand — the hand holding his gun — to hit Jackson twice on the lower back with a hammer-like motion and yelled, “Get down. Get down.” When Klei-nert tried to “hammer-fist strike” Jackson a third time, Jackson “came back towards [Kleinert] and knocked [Kleinert] down.” As they fell, Kleinert accidentally pulled the trigger of his gun, firing one bullet into Jackson’s neck, killing him.

On May 12, 2014, a Travis County grand jury indicted Kleinert for manslaughter. The indictment charges that he “recklessly cause[d]” Jackson’s death

by striking and by attempting to strike Larry Jackson ■... while holding a loaded firearm[,] by seizing and by attempting to physically control Larry Jackson while holding a loaded firearm, and by attempting to seize and physically control Larry Jackson without maintaining a distance between himself and Larry Jackson that was sufficient to ... holster his firearmf.]

Relying on 28 U.S.C. § 1442, the “federal officer removal” statute, Kleinert timely removed the state prosecution to federal court. After a hearing to evaluate its jurisdiction, the district court determined that removal was proper. On June 26, 2015, Kleinert asked the district court to dismiss the indictment according to Rule 12(b)(1) of the Federal Rules of Criminal Procedure. Kleinert argued that under the Supremacy Clause, he was immune from prosecution by the local district attorney for conduct he undertook as a federal officer. Kleinert and the District Attorney (“the State”) agreed that, when deciding Kleinert’s motion to dismiss, the district court would “resolve any and all factual issues related” to his immunity defense. The State specifically “waive[d] the right to have any and all such factual issues be decided by a jury.” After a three-day evi-dentiary hearing, the district court determined that Kleinert was entitled to Supremacy Clause immunity and dismissed the indictment. The State now appeals, arguing that the district court lacked subject matter jurisdiction and erroneously applied the doctrine of Supremacy Clause immunity.

II

A

We review a district court’s determination of subject matter jurisdiction de novo. United States v. Kaluza, 780 F.3d 647, 653 (5th Cir. 2015). We review factual findings underlying that determination for clear error. Funeral Consumers All., Inc. v. Serv. Corp. Int’l, 695 F.3d 330, 336 (5th Cir. 2012). Notably, “federal officer removal” under 28 U.S.C. § 1442 is unlike other removal doctrines: it “is not ‘narrow’ or ‘limited.’ ” Willingham v. Morgan, 395 U.S. 402, 406, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969) (quoting Colorado v. Symes, 286 U.S. 510, 517, 52 S.Ct. 635, 76 L.Ed. 1253 (1932)). “Although the principle of limited federal court jurisdiction ordinarily compels us to resolve any doubts about removal in favor of remand,” .we review a district court’s decision to maintain federal-officer jurisdiction “without a thumb on the remand side of the scale.” Savoie v. Huntington Ingalls, Inc., 817 F.3d 457, 462 (5th Cir. 2016).

B

The federal-officer-removal statute provides that “any officer ... of the United States or of any agency thereof’ prosecuted “for or relating to any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals” may remove the action to federal court. 28 U.S.C. § 1442(a)(1). Although not explicit in the text of the statute, the officer must also allege “a colorable federal defense” to satisfy Article Ill’s “arising under” requirement for subject matter jurisdiction. See Mesa v. California, 489 U.S. 121, 129, 136-37, 109 S.Ct. 959, 103 L.Ed.2d 99 (1989) (explaining that § 1442 is an exception to the usual “well-pleaded complaint” rule). The district court’s exercise of subject matter jurisdiction in this case therefore turns on three elements. First, the defendant must be an “officer ... of the United States” or of a federal agency (colloquially, a “federal officer”). § 1442(a)(1). Second, the state’s prosecution must be either (a) “for or relating to any act under color of such office” or (b) “on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals.” Id. Third, the defendant must “raise a colorable federal defense” to prosecution by the state. Jefferson Cty. v. Acker, 527 U.S. 423, 431, 119 S.Ct. 2069, 144 L.Ed.2d 408 (1999) (citing Mesa, 489 U.S. at 139, 109 S.Ct. 959).

The State does not dispute that Kleinert is a federal officer, and our review of the record confirms his federal-officer status. Kleinert worked full-time for the FBI investigating federal crimes. He received security clearance from the federal government and used federally issued equipment to carry out his regular job duties. Nothing in the record indicates that this federal assignment was merely temporary or otherwise limited in scope. Klei-nert is therefore a federal officer for purposes of removal.

To satisfy the second element— the “color of office test” — the defendant must “show[] a ‘causal connection’ between the charged conduct and asserted official authority.” Willingham, 395 U.S. at 409, 89 S.Ct. 1813. In other words, “[i]t must appear that the prosecution ... arise[s] out of the acts done by [the officer] under color of federal authority and in enforcement of federal law....” Mesa, 489 U.S. at 132-33, 109 S.Ct. 959. Importantly, the State’s allegations do not control the causal-connection analysis. Osborn v. Haley, 549 U.S. 225, 249-50, 127 S.Ct. 881, 166 L.Ed.2d 819 (2007). Rather, courts must “credit [the officer’s] theory of the case” to determine whether the officer “ha[s] made an adequate threshold showing that the suit is ‘for a[n] act under color of office.’ ” Jefferson Cty., 527 U.S. at 432, 119 S.Ct. 2069 (citation omitted). For example, if, in opposing removal, the state contends that the federal officer was not acting in his official capacity but instead “may have been on a frolic of his own[,]” then the officer “should have the opportunity to ‘present his version of the facts to a federal court.’ ” Osborn, 549 U.S. at 251, 127 S.Ct. 881 (alterations omitted) (quoting Willingham, 395 U.S. at 409, 89 S.Ct. 1813). An officer is not required to definitively “exelude[] the possibility that the suit is based on acts or conduct not justified by his federal duty” before removal. Id. at 249, 127 S.Ct. 881.

Kleinert satisfied the color-of-office element. In his notice of removal, Kleinert said he was a specially deputized federal agent who investigated bank robberies for the FBI’s local task force. Kleinert alleged that he first encountered Jackson while investigating a bank robbery — a federal crime — and, during their interaction, developed probable cause to believe that Jackson was trying to rob or defraud the same bank — also federal crimes — culminating in the chase. According to Kleinert, federal law authorized him to arrest Jackson based on probable cause, and Kleinert engaged in the conduct that the State charged as criminal (striking Jackson, attempting to physically control Jackson, and failing to holster his gun) during the arrest.

Evidence presented at the district court’s removal hearing supports these allegations. Another task force officer testified that the robbery at Benchmark Bank was indeed a federal investigation. The officer also testified that he too believed federal law authorized him to arrest, without a warrant, a person whom he has probable cause to believe committed a federal crime. Bank employees Sheila Bostick and Kimberly Menge both confirmed Klei-nert’s recollection of Jackson’s conduct, including that Jackson pretended to be William Majors and ran away when Kleinert questioned him — facts that would support probable cause.

Thus, crediting Kleinert’s theory of the case — as Supreme Court precedent requires — the State seeks to prosecute him for actions he took as he tried to arrest Jackson, and federal law authorizes federal officers like Kleinert to arrest upon probable cause of a federal crime, such as bank robbery or bank fraud. Kleinert therefore made the “adequate threshold showing” that the State prosecuted him for acts he took “under color of [federal] office.” See § 1442; accord Jefferson Cty., 527 U.S. at 432, 119 S.Ct. 2069.

To satisfy the third element, the officer must allege a “colorable” federal defense. See, e.g., Mesa, 489 U.S. at 129, 109 S.Ct. 959 (“[F]ederal officer removal must be predicated on the allegation of a colorable federal defense.” (emphasis added)). “Colorable” here means plausible, not “clearly sustainable.” Jefferson Cty., 527 U.S. at 432, 119 S.Ct. 2069; accord United States v. Todd, 245 F.3d 691, 693 (8th Cir. 2001). “[Requiring a ‘clearly sustainable defense’ ... would defeat the purpose of the removal statute.” Jefferson Cty., 527 U.S. at 432, 119 S.Ct. 2069 (quoting Willingham, 395 U.S. at 407, 89 S.Ct. 1813). Indeed, “one of the most important reasons for removal is to have the validity of the defense of official immunity tried in a federal court.” Willingham, 395 U.S. at 407, 89 S.Ct. 1813; see also Venezia v. Robinson, 16 F.3d 209, 212 (7th Cir. 1994) (“Once the federal defendant has a plausible federal defense, removal is appropriate so that the federal court may determine whether the defense succeeds.”).

The allegations outlined above likewise support Kleinert’s defense of Supremacy Clause immunity. As we discuss more fully below, Supremacy Clause immunity protects federal officers, acting within their federal authority, from liability under state law. Because Kleinert plausibly alleged that he was acting as a federal officer at the time of the shooting, he sufficiently asserted a colorable federal defense. Kleinert therefore properly removed the state-court action, and the district court validly exercised its subject matter jurisdiction.

To resist this conclusion, the State challenges Kleinert’s ability to prevail on the issues of whether he was acting as a federal officer when he shot Jackson and whether Supremacy Clause immunity applies. Specifically, the State argues that Kleinert must “exclude the possibility” that it prosecuted him for conduct “not justified by his federal duty” — an argument the Supreme Court has already rejected. See Osborn, 549 U.S. at 249, 127 S.Ct. 881. The State also urges several fact-specific arguments about the scope of Kleinert’s authority to conduct warrantless arrests and whether probable cause existed. Because the standard for federal officer removal tests only the plausibility of the officer’s allegations, the State’s arguments that removal is unavailable because, in its view, Kleinert will not ultimately prevail are unavailing. Because an officer “need not win his case before he can have it removed,” Kleinert’s allegations and supporting evidence were sufficient for removal. See Willingham, 395 U.S. at 407, 89 S.Ct. 1813.

Having satisfied ourselves of jurisdiction, we turn to the merits of Kleinert’s Supremacy-Clause-immunity defense to decide whether the district court, properly dismissed the indictment.

Ill

A

We review a district court’s decision on a motion to dismiss an indictment de novo. United States v. Cordova-Soto, 804 F.3d 714, 718 (5th Cir. 2015). We review factual findings underlying that decision for clear error. Id. “A factual finding is clearly erroneous only if, based on the entirety of the evidence, the reviewing court is left with the definite and firm conviction” that the district court made a mistake. Id. A factfinder’s choice between “two permissible views of the evidence ... cannot be clearly erroneous.” Mid-Continent Cas. Co. v. Davis, 683 F.3d 651, 654 (5th Cir. 2012) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)).

B

As other courts have noted, Supremacy Clause immunity is a “seldom-litigated corner” of constitutional law. E.g., Wyoming v. Livingston, 443 F.3d 1211, 1213 (10th Cir. 2006). It applies only when a federal officer is “held in the state court to answer” for (1) an act that federal law “authorized” the officer to undertake, and-(2) “in doing that act, he did no more than what was necessary and proper for him to do.” Cunningham v. Neagle, 135 U.S. 1, 75, 10 S.Ct. 658, 34 L.Ed. 55 (1890). For conduct to be “necessary and proper,” an officer must subjectively believe that his actions were appropriate to carry out his federal duties, and that belief must be objectively reasonable. See, e.g., New York v. Tanella, 374 F.3d 141, 147 (2d Cir. 2004); Kentucky v. Long, 837 F.2d 727, 745 (6th Cir. 1988). In other words, the Supremacy Clause prohibits a state from punishing, whether by local prosecution or private suit under state law, (1) a federal officer; (2) authorized by federal law to perform an act; (3) who, in performing the authorized act, did no more than what the officer subjectively believed was necessary and proper; and (4) that belief was objectively reasonable under the circumstances.

1

The State does not challenge that Klei-nert is a federal officer for purposes of Supremacy Clause immunity, so we do not analyze this element of Kleinert’s defense. We therefore do not address whether the district court’s conclusion that Kleinert’s special deputations by the FBI, on then-own, are enough to show that he is a federal officer. The State has chosen to leave this holding undisturbed.

2

Addressing the second element of Supremacy Clause immunity, the State argues that federal law did not authorize Kleinert to arrest Jackson for three reasons.

First, the State contends that Kleinert’s task force operated under a “Memorandum of Understanding” that limited its officers’ federal responsibilities. Specifically, the State argues that the task force’s “mission,” as stated in the memorandum, limited officers to investigating specifically enumerated “violent” crimes. In the State’s view, because Jackson was nonviolent, Kleinert acted outside of this mission statement, and thus outside of his federal authority, when he tried to arrest Jackson. This position overlooks that the text of the memorandum does not unequivocally limit the types of crimes that task force officers may investigate. Indeed, FBI Special Agent Dennis May, who created the task force, testified that Kleinert’s “authority to act as a federal officer was not limited to the [memorandum]; ... he had a broader scope of authority.” The State also emphasizes that the memorandum says, “Responsibility for conduct, not under the direction of [an FBI special agent in charge or supervisory special agent], of each [task force] member ... shall remain with the respective agency head[.]” Under this subsection, the State argues, unless a superior officer of the FBI specifically directs a task force officer to investigate potential criminal activity, doing so is acting without federal authority. Again, according to Special Agent May, who created the task force, as well as Supervisory Special Agent Phillip Gadd, who oversaw its daily operations, not so. Both agents testified, for example, that federal law authorized their task force officers, who were subject to the memorandum, to make warrantless arrests. Special Agent May said that a task force officer with “reason to believe a person has committed bank fraud” — a nonviolent offense not listed in the memorandum — has “the duty to investigate and arrest.” Supervisory Special Agent Gadd further explained that a task force officer who observes criminal activity, but “let[s the person] go,” violates the officer’s general “obligation to enforce the laws of the United States ... and oath to do so.” See Neagle, 135 U.S. at 59, 10 S.Ct. 658 (holding that officers act within their federal authority so long as they act according to “any obligation fairly and properly infera-ble from [the Constitution], or any duty of the [officer] to be derived from the general scope of his duties under the laws of the United States”).

Second, the State argues that Kleinert cannot have acted according to federal law because the FBI’s “shoot team,” an inter-agency body that occasionally investigates officer-involved shootings, did not investigate Kleinert. Without citing any supporting facts or applicable legal authority, the State argues that “the lack of federal response in this case shows that the FBI did not consider [Kleinert] to have been acting pursuant to federal duties.” Contrary to this assertion, Special Agent May testified that the FBI deploys its “shoot team” only when the special agent in charge determines, in the agent’s discretion, that an investigation is warranted. The State did not ask Special Agent May to elaborate on what considerations underlie exercising this discretion. And on appeal, the State does not address his testimony.

Third, the State challenges the district court’s finding that federal law authorized Kleinert to arrest Jackson because, according to the State, Kleinert lacked probable cause of criminal activity. Importantly, the State concedes that federal law authorized Kleinert, as a special deputy for the FBI, to make warrantless arrests for any federal felony if he has probable cause. See 21 U.S.C. § 878. The State argues, however, that the circumstances surrounding Jackson’s presence at Benchmark Bank were “insufficiently developed” for Kleinert to have probable cause of any federal felony.

Probable cause exists when all of the facts known by a police officer “are sufficient for a reasonable person to conclude that the suspect had committed, or was in the process of committing, an offense.” United States v. Castro, 166 F.3d 728, 733 (5th Cir. 1999) (en banc); accord Maryland v. Pringle, 540 U.S. 366, 371, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003) (“To determine whether an officer had probable cause to arrest an individual ... examine the events leading up to the arrest, and then decide ‘whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to’ probable cause[.]” (quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996))). When Klei-nert tried to arrest Jackson, he knew the following suspicious facts:

• Benchmark Bank was robbed earlier that day.
• After approaching the front door of the bank, which bore a sign indicating the bank was temporarily closed, Jackson appeared to leave, but almost immediately returned. He tried to get in the bank again by pulling on the clearly locked door.
• When bank employee Sheila Bostick went outside to tell Jackson that the bank was closed, he identified himself as “William Majors,” a wealthy customer and friend of the bank’s president. Jackson said he “need[ed]” to withdraw money from “his” (Majors’s) account. Both Bostick and Kimberly Menge, another bank employee who heard Jackson identify himself, knew that Jackson was not William Majors.
• Kleinert then spoke to Jackson, who changed his story after Kleinert identified himself as law enforcement. Jackson admitted he was not Majors and now purported to be Majors’s brother. But Jackson refused to call “his brother” at Kleinert’s request.
• Jackson said he walked to the bank after being involved in a car wreck some distance away, but Jackson wasn’t sweaty or disheveled from his walk, as one would expect on a hot Texas day.
• Throughout his conversation with Klei-nert, Jackson appeared to “obscure [his] face” with his phone, a tactic Kleinert recognized as suspicious from his experience in other robbery cases.
• Jackson then “took off running.”

Viewed collectively, this evidence constitutes probable cause of at least two federal felonies: bank robbery and bank fraud. A person commits federal bank robbery if he “enters or attempts to enter any bank ... with intent to commit in such bank ... any felony affecting [the] bank....” 18 U.S.C. § 2113; accord United States v. Dentler, 492 F.3d 306, 310 (5th Cir. 2007) (listing the elements of bank robbery). A person commits federal bank fraud if he “knowingly [tries] to execute, a scheme or artifice ... to obtain any of the moneys [or] funds ... under the custody or control of[] a financial institution, by means of false or fraudulent pretenses, representations, or promises.... ” 18 U.S.C. § 1344; accord United States v. McCauley, 253 F.3d 815, 819 (5th Cir. 2001) (listing the elements of bank fraud). Here, Kleinert saw Jackson try to enter Benchmark Bank by lying about his identity so he could take money from someone else’s account. This is sufficient for probable cause. The State argues that this evidence amounts only to reasonable suspicion. Even if Kleinert had only a reasonable suspicion of criminal activity during his conversation with Jackson, when Jackson ran away, Kleinert then had probable cause to arrest. See Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (“Headlong flight — wherever it occurs — is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.”); Kolender v. Lawson, 461 U.S. 352, 366 n.4, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) (noting that a person’s flight from a lawful investigatory stop “may often provide the necessary information, in addition to that the officers already possess, to constitute probable cause”). With probable cause of two federal felonies, Kleinert was authorized to arrest Jackson under 21 U.S.C. § 878.

Each of the State’s arguments that Klei-nert lacked federal authority to arrest Jackson is belied by the record. More importantly, the district court heard all of these fact-based arguments, and we cannot say that the district court’s conclusion in Kleinert’s favor is clearly erroneous. See Mid-Continent Cas. Co. v. Davis, 683 F.3d 651, 654 (5th Cir. 2012) (“[When] there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.”).

3

The State also challenges whether Kleinert, in trying to arrest Jackson, did no more than what he subjectively believed was “necessary and proper.” This subjective element depends on an officer’s “ ‘hon-este ]’ belief that his actions are reasonable and necessary to the exercise of his authority.” Livingston, 443 F.3d at 1221. Any evidence of “personal interest, malice, [or] actual criminal intent” will negate subjective reasonableness. Baucom v. Martin, 677 F.2d 1346, 1350 (11th Cir. 1982).

Here, we focus on the conduct for which the State seeks to hold Kleinert liable. The indictment charges as criminally reckless:

• Kleinert’s failing to maintain a sufficient distance between himself and Jackson to holster his firearm;
• seizing and attempting to physically control Jackson while holding a loaded firearm; and
• striking Jackson while holding a firearm.

As the district court concluded, none of the evidence suggests that Kleinert acted out of personal interest or bore any ill will toward Jackson. Kleinert and Jackson were strangers, and Kleinert approached Jackson only after a Benchmark Bank employee, who suspected Jackson of wrongdoing, asked Kleinert to do so during an ongoing federal investigation.

Kleinert testified that “it’s procedure ... for your own protection, to pull your weapon when ... arresting] somebody that you believe is a fleeing felon.” Klei-nert also testified that once he drew his weapon, he could not re-holster it before going “hands-on” with Jackson because, to do so, he would have had to “take [his] eyes off of’ Jackson and “look down at [his] holster” — a task made more difficult by Kleinert’s plain clothes, including a baggy, untucked shirt. According to Kleinert, “tak[ing his] eyes off of [a] suspect” before apprehending him is dangerous. Kleinert also explained that he used “hammer-fist” strikes, a technique he learned from police training, to gain compliance. Jackson had run away from Kleinert twice already and continued to resist even as Kleinert physically held on to Jackson’s shirt. After the shooting, Kleinert immediately called a “dispatch communications supervisor” to report what happened, simply saying, “I just shot somebody.” Kleinert also seemed concerned that EMS and other officers weren’t arriving quickly enough.

The State argues that Kleinert’s “evolving account of the shooting” proves that he did not subjectively believe his actions were necessary and proper. The State emphasizes that, at times, Kleinert described Jackson as seeming to “spin” or “turn” toward him as they fell down moments before Kleinert fired the fatal shot. For example, the State points to Kleinert’s grand jury proceedings, during which he tried to reenact the altercation:

I hit him right here and I say, get down on the ground. And I do it again.... And he gets up and he spins and he goes this way and goes this way. And I spin again to try to hit him again as ... he’s passing me but ... as he’s doing that ... I just fall.... [A]s I’m falling ... I hear my gun go off and I’m thinking to myself, how did my gun go off?

At other times, Kleinert described Jackson as falling backwards into him. At the district court’s evidentiary hearing, Kleinert testified:

After that second strike, I began a third strike, and [Jackson] spun and came back towards me and knocked me down. And as I’m delivering that third strike, I’m falling at the same time. And, as I’m falling, I hear my gun discharge. And I’m thinking to myself, “Why is my gun discharging?”

Based on its perceived inconsistencies in Kleinert’s testimony, the State asserts that Kleinert is trying to more favorably “shape his narrative ... to match the evidence” by now describing Jackson as falling “backwards” rather than “spinning” toward him. In the State’s view, this supposedly sudden change of testimony indicates Kleinert does not subjectively believe in the propriety of his conduct.

Tasked with “resolv[ing] any and all factual issues,” which necessarily includes the credibility of witnesses, see In re Tusa-Expo Holdings, Inc., 811 F.3d 786, 789 n.1 (5th Cir. 2016), the district court found that “any variation[]” in Kleinert’s testimony was “insignificant” and merely the result of “testifying] several times under different circumstances and [being] questioned in different contexts.” Overall, the court believed Kleinert’s testimony was “straightforward, direct, consistent, and without evasion,” leading it to conclude that “Kleinert honestly believed that his actions were justified.” Nothing in the record indicates that the district court’s conclusion that Kleinert subjectively believed his conduct was necessary and proper is clearly erroneous. See French v. Allstate Indem. Co., 637 F.3d 571, 577 (5th Cir. 2011) (“[T]he burden of showing that the findings of the district court are clearly erroneous is heavier if the credibility of witnesses is a factor in the trial court’s decision.” (quoting Canal Barge Co. v. Torco Oil Co., 220 F.3d 370, 375 (5th Cir. 2000)).

4

The State’s final argument is that Kleinert’s belief that he did no more than what was necessary and proper to arrest Jackson was objectively unreasonable under the circumstances. In analyzing objective reasonableness, courts must “evaluate the circumstances as they appear to federal officers at the time ... rather than the more subtle and detailed facts later presented to a court.” Livingston, 443 F.3d at 1229; accord Tanella, 374 F.3d at 151. Again, we focus here on the circumstances surrounding the conduct that the State charges as criminally reckless: Kleinert’s failing to maintain enough distance from Jackson so that Kleinert could holster his gun, seizing Jackson while holding a loaded gun, and striking Jackson while holding a gun.

Numerous law enforcement officers testified that Kleinert acted consistently with his training and with what other officers would have done under the circumstances. For example, FBI Special Agent Dennis May testified that “[fit’s extremely difficult with one hand, especially with any kind of clothing over that holster, to reholster [a firearm].” He also repeatedly testified that “using a firearm as an impact weapon ... is a proper use of a firearm. Special Agent May described that an armed officer has few .options when a suspect is resisting arrest:

[I]f you have a weapon in your hand and you are in a situation where a person is resisting, unfortunately, you can’t throw that weapon on the ground and you may not be able to get it back in the holster. ... [I]t’s just difficult to say what you could possibly do with that weapon.

A lieutenant with the Austin Police Department testified that, like Kleinert, he and other officers “have gone hands on” with suspects while holding their firearms. A training instructor for the department testified that when teaching the “mechanics of an arrest,” the Austin Police Department specifically instructs its officers to “draw their weapon[s] and order a suspect to get down on the ground if the circumstances call for it” and “to close the distance to a suspect while their firearm[s are] still drawn.” In addition, the department teaches its officers to perform hammer-fist strikes while holding a weapon, although not necessarily a firearm.

Addressing Kleinert’s specific circumstances, this' training instructor testified that Kleinert’s decision to hammer-fist strike Jackson was “appropriate for [Jackson’s] level of resistance.” He explained:

[T]he situation being [w]hat it is, not having the availability to holster the weapon, still in a struggle, still in the fight, in those circumstances ... the gun was in his hand and he’s wanting to deliver hammer fist strikes, then — I mean, we don’t teach people to throw your gun to the side or put it underneath your arm or anything like that....

Another officer reiterated this point. He testified that an employee of the district attorney’s office asked him to testify that hammer-fist striking a suspect while holding a gun violated the Austin Police Department’s policy and usual practices. The officer responded that he would not testify to that “because it wasn’t true” and that anyone willing to say that “would have to perjure themselves.”

The State presented little evidence to the contrary. A single expert witness for the State, a former police officer turned private consultant from Colorado, testified that guns should not be used as impact weapons because “[a]ny hands-on contact with an individual is highly dangerous if one of those hands is occupied by a firearm.” The expert explained that an officer who brandishes a weapon has “limited ... ability to control” a suspect, so the officer should re-holster before trying to apprehend the suspect. On cross-examination, however, he admitted that he had “no problem” with Kleinert’s decision to draw his weapon and approach Jackson with his gun in hand; he even testified that “it was good police tactics” for Kleinert to do so. The State’s expert agreed that “good, reasonable police officers” sometimes go “hands-on” with suspects while still holding a firearm. Further, he admitted that, because Kleinert didn’t know whether Jackson was armed, if Kleinert had holstered his gun before approaching Jackson, it was “quite possible” that Jackson could have seriously injured or killed Klei-nert before he would have had sufficient time to draw his weapon again.

Presented with substantial testimony in Kleinert’s favor and little evidence that his conduct was objectively improper, the district court concluded that Kleinert’s belief that he acted appropriately was objectively reasonable. Drawing on a similar case, the district court emphasized that “close-quarter situation[s]” like this one are “hardly conducive to detached deliberation.” Tanella, 374 F.3d at 151. In this “hand-to-hand struggle,” a fact supported by the forensic evidence, Kleinert necessarily reacted on a “split-second basis,” and accidentally fired his gun — what the State’s own expert called a “sympathetic or involuntary discharge. See id. All of this evidence supports the district court’s conclusion that Kleinert’s belief in the propriety of his conduct was objectively reasonable. Kleinert thus satisfied each element of the Supremacy-Clause-immunity analysis.

IV

We hold that the district court properly exercised jurisdiction according to the federal officer removal statute, 28 U.S.C. § 1442, and Kleinert’s assertion of a color-able federal defense. The district court likewise correctly granted Kleinert’s motion to dismiss because he is entitled to immunity from state prosecution under the Supremacy Clause of the Constitution.

We note, however, even if a federal officer satisfies every element of the immunity standard, the Supremacy Clause cannot shield the officer from federal consequences, such as prosecution by federal authorities or civil liability under federal law. Supremacy Clause immunity merely confirms that the Constitution and laws of the United States are “supreme” and cannot be obstructed — here, via local prosecution — by the laws of the individual states. See U.S. Const. art.VI, cl. 2.

AFFIRMED.

      . Because Kleinert is the only surviving witness to his encounter with Jackson, we view his testimony with caution. See Flythe v. District of Columbia, 791 F.3d 13, 19 (D.C. Cir. 2015) (noting that every circuit court to address deadly officer shootings carefully examines the record evidence for consistency with an officer’s account). We also note that the district court, as the finder of fact, believed Kleinert was credible, calling his testimony "straightforward, direct, consistent, and without evasion.”

      . The State has never argued that Kleinert intentionally shot Jackson, and none of the State’s witnesses identified any physical evidence to contradict Kleinert's account of an accidental shooting.

      . Rule 12(b)(1) of the Federal Rules of Criminal Procedure provides that "[a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits.”

      . Although the State does not challenge Klei-nert's status as a federal officer, we nonetheless address it here because it affects our jurisdiction, and "we have a constitutional obligation to satisfy ourselves that subject matter jurisdiction is proper before we engage the merits of an appeal." Ziegler v. Champion Mortg. Co., 913 F.2d 228, 229 (5th Cir. 1990).

      . Although § 1442(a)(1) provides two alternatives to satisfy the second element of subject matter jurisdiction, the district court considered only one: whether the State prosecuted Kleinert for or relating to an act taken under color of federal office. Because the district court did not reach, and the parties have not briefed on appeal, whether the State prosecuted Kleinert "on account of any right, title or authority claimed under [federal law] for the apprehension or punishment of criminals,” we likewise do not consider this alternative.

      . Noting uncertainty about the appropriate standard when a defendant raises Supremacy Clause immunity as a defense to prosecution, the State urges us to apply out-of-circuit cases requiring a district court to "assume the truth of the allegations in the indictment,” and deny a Rule 12(b) motion to dismiss if the State raises any genUine issue of fact. See New York v. Tanella, 374 F.3d 141, 148 (2d Cir. 2004) (citing Kentucky v. Long, 837 F.2d 727, 752 (6th Cir. 1988)). Regardless of the propriety of the standard applied by other circuits, the State waived this argument by specifically agreeing to have the district court resolve “any and all factual issues” bearing on Klei-nert’s immunity defense and forgoing decision by a jury. See McCaig v. Wells Fargo Bank (Tex.), N.A., 788 F.3d 463, 476 (5th Cir. 2015) ("A party cannot complain on appeal of errors which he himself induced the district court to commit.”).

      . The State asks us to hold, contrary to every circuit that has considered Supremacy Clause immunity, that the -relevant inquiry is not whether the officer's belief in the propriety of the conduct was objectively reasonable, but whether the conduct itself, according to qualified immunity principles, was constitutionally reasonable. The State neglected to urge the district court to adopt this qualified immunity-like standard, presenting it for the first time on appeal. The standard we articulate is the same standard the State relied on in its opposition to Kleinert’s motion to dismiss. We therefore find this argument waived. See Dunbar v. Seger-Thomschitz, 615 F.3d 574, 576 (5th Cir. 2010) (refusing to consider new theories or new issues absent extraordinary circumstances).

      . We also do not address whether the standards for satisfying the federal-officer element of removal under 28 U.S.C. § 1442 and -the federal-officer element of Supremacy Clause immunity are materially distinct.


source: Caselaw Access Project

author: SENTELLE, Senior Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, United States Department of Justice, et al., Appellees v. PHILIP MORRIS USA INC., formerly known as Philip Morris Incorporated, et al., Appellants Brown & Williamson Tobacco Corporation, directly and as successor by merger to American Tobacco Company, et al., Appellees
    No. 16-5101 Consolidated with 16-5127
    United States Court of Appeals, District of Columbia Circuit.
    Argued February 14, 2017
    Decided April 25, 2017

      Michael A. Carvin, Washington, DC, argued the cause for appellants. On the briefs were Noel J. Francisco, Peter J. Biersteker, Miguel A. Estrada, Amir C. Tayrani, Washington, DC, Jeffrey A. Man-dell, and Robert J. Brookhiser Jr.
    Melissa N. Patterson, Attorney, U.S. Department of Justice, argued the cause for federal appellees. With her on the brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, and Mark B. Stern and Alisa B. Klein, Attorneys.
    Eric R. Glitzenstein, Washington, DC, argued the cause for appellees Tobacco-Free Kids Action Fund, et al. With him on the brief was Katherine A. Meyer, Washington, DC.
    Before: BROWN, Circuit Judge, and SENTELLE and RANDOLPH, Senior Circuit Judges.
   SENTELLE, Senior Circuit Judge:

In 2006, the district court found that Appellant cigarette manufacturers had for decades conspired to deny the health effects of smoking in violation of RICO. United States v. Philip Morris USA, Inc., 449 F.Supp.2d 1 (D.D.C. 2006) (“Liability Opinion”). As a remedy, the court ordered Appellants to disseminate “corrective statements” relating to the health effects of smoking in newspapers, on television, on cigarette packages, and on websites. Id. at 938-41. For more than a decade since, the parties have battled over the precise language of these statements — both in and out of court. Appellants claim the most recent language proposed by the government is conduct-focused and is backward-looking beyond the scope of RICO and, for other reasons, violates the First Amendment. The district court approved the government’s proposed language. We affirm in part and reverse in part.

Background

In August 2006, a district court found that Appellant cigarette manufacturers (“Defendants”) had violated RICO by associating together to misinform the public about smoking. Liability Opinion, 449 F.Supp.2d at 851-906. The district court found that “an injunction ordering Defendants to issue corrective statements is appropriate and necessary to prevent and restrain them from making fraudulent public statements on smoking and health matters in the future.” Id. at 926. The court identified five topics about which it would order Defendants to make corrective statements but deferred deciding the wording of the statements pending further briefing. Id. at 928, 939-40.

On appeal, we upheld the concept of a corrective-statements remedy against RICO and First Amendment challenges because “[rjequiring Defendants to reveal the previously hidden truth about their products will prevent and restrain them from disseminating false and misleading statements, thereby violating RICO, in the future.” United States v. Philip Morris USA Inc., 566 F.3d 1095, 1140 (D.C. Cir. 2009) (“2009 Opinion”). Still, we noted, such statements must be “confine[d] ... to ‘purely factual and uncontroversial information,’ geared toward[] thwarting prospective efforts by Defendants to either directly mislead consumers or capitalize on their prior deceptions by continuing to advertise in a manner that builds on consumers’ existing misperceptions.” Id. at 1144-45 (quoting Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985)).

On remand from the 2009 Opinion, the district court formulated the text of the corrective statements, including bullet points containing factual statements on each topic preceded by a preamble stating: “A Federal Court has ruled that [Defendants] deliberately deceived the American public about [the topic of the statement], and has ordered those companies to make this statement. Here is the truth[.]” United States v. Philip Morris USA, Inc., 907 F.Supp.2d 1, 8-9 (D.D.C. 2012). Defendants appealed.

This Court held that the “district court exceeded its authority under RICO because the preambles reveal nothing about cigarettes; instead, they disclose defendants’ prior deceptive conduct.” United States v. Philip Morris USA Inc., 801 F.3d 250, 261 (D.C. Cir. 2015) (“Corrective Statements Opinion”) (emphasis in original). While the bulleted statements “revealed] the previously hidden truth about [Defendants’] products,” the preambles did not and could “not be justified on grounds of general deterrence.” Id. at 263 (quoting 2009 Opinion, 566 F.3d at 1140) (emphasis in original). The Court did not address Defendants’ constitutional challenges to the preambles. See id. at 256. The Court remanded for further proceedings. The United States filed a petition for panel rehearing, seeking clarification regarding which portions of the preambles the Court expected to be altered. We denied the petition, stating that the Government sought “relief that the district court may consider in the first instance on remand.” Orders, United States v. Philip Morris USA Inc., Nos. 13-5028 & 14-5161 (D.C. Cir. Aug. 5, 2015).

Subsequently, the district court granted two Defendants permission to sell certain cigarette brands to non-Defendant ITG Brands, LLC, and to make ITG and its affiliates (“ITG Entities”) parties to this case for limited purposes. The order specified that the ITG Entities would be responsible for publishing corrective statements with “slightly modified preamble language.” Order Authorizing Transfer of Certain Cigarette Brands and Businesses to ITG Brands, LLC, 6-7, United States v. Philip Morris USA, Inc., No. 99-2496 (D.D.C. June 8, 2015), ECF No. 6151.

On remand, the district court ordered the preambles to read as follows:

A Federal Court has ordered [Defendants] to make this statement about [the topic of the statement]. Here is the truth: ....

United States v. Philip Morris USA Inc., 164 F.Supp.3d 121, 124-25 (D.D.C. 2016) (“Revised Preamble Opinion”). The district court explained that the new preambles “do not in any way send a message to the public that Defendants deceived them in the past, nor that Defendants are being punished for their previous conduct.” Id. at 125-26. The district court also rejected Defendants’ First Amendment arguments. Id. at 126-27. Defendants appealed.

Discussion

A. Standard of Review

This Court reviews de novo the district court’s conclusions that the corrective statements comport with RICO and the First Amendment. 2009 Opinion, 566 F.3d at 1110, 1147.

B. RICO

In a civil RICO action, the statute provides district courts with jurisdiction to impose remedies that “prevent and restrain” future RICO violations, not to punish prior violations. 18 U.S.C. § 1964(a). Thus, the district court’s remedy requiring Defendants to issue corrective statements complied with RICO because Defendants would be “impaired in making false and misleading assurances” about cigarettes if simultaneously required to tell the truth. 2009 Opinion, 566 F.3d at 1140. “In other words, we held, disseminating corrective statements on the proposed topics would prevent and restrain future RICO violations by ‘[Requiring Defendants to reveal the previously hidden truth about their products’ Corrective Statements Opinion, 801 F.3d at 261 (quoting 2009 Opinion, 566 F.3d at 1140) (emphasis in original). However, the district court’s “jurisdiction is limited to forward-looking remedies that are aimed at future violations.” United States v. Philip Morris USA Inc., 396 F.3d 1190, 1198 (D.C. Cir. 2005) (“Disgorgement Opinion”).

Defendants allege that the preambles approved by the district court exceed its RICO jurisdiction because the preambles “convey the unequivocal message that Defendants previously deceived the American public and, further, that they are being compelled by a court to make the corrective statements as a sanction for prior wrongdoing.” Defendants’ Br. at 30. Defendants point to five elements that they believe demonstrate the backward-looking nature of the preambles, both individually and cumulatively: (1) the “Here is the truth” tagline; (2) the declaration that “A Federal Court has ordered [Defendants] to make this statement”; (3) that different preambles are permitted for the ITG Entities; (4) the description in the preamble of two of the specific topics; and (5) the district court’s rejection of Defendants’ proposed alternative preambles.

Defendants assert that the “Here is the truth” tagline conveys the unambiguous message that Defendants have previously withheld “the truth” about the effects of smoking because “[n]o one affirms that a message is ‘the truth’' — or is ordered by a court to tell ‘the truth’ — for no reason.” Defendants’ Br. at 31-32. There was no evidence that the public would doubt the truth of the bullet points without this tag-line and Defendants urge that “[t]he imprimatur of a federal court unequivocally validates the veracity of the bullet points.” Id. at 41. Similarly, Defendants allege that the declaration “A Federal Court has ordered [Defendants] to make this statement” is backward-looking. Because courts do not ordinarily order companies to disseminate information absent prior wrongdoing, Defendants allege that this phrase communicates that they are being compelled to speak as punishment for prior wrongdoing. Ultimately, they argue, these aspects of the tagline reveal nothing about cigarettes and focus only on prior deceptive conduct.

We agree that, read together, these two phrases most naturally suggest prior misconduct by Defendants. Such language “can serve only two purposes: either to attract attention that a correction follows or to humiliate the advertiser,” Warner-Lambert Co. v. FTC, 562 F.2d 749, 763 (D.C. Cir. 1977), neither of which is a permissible goal under civil RICO, Corrective Statements Opinion, 801 F.3d at 262 (“Correcting consumer misinformation, which ‘focuse[s] on remedying the effects of past conduct,’ is ... an impermissible objective under RICO.” (quoting Disgorgement Opinion, 396 F.3d at 1198)); id. at 256 (noting that RICO’s civil-remedy provision does not provide for remedies that “seek to punish prior wrongdoing”).

This problem is remedied by simply removing the “Here is the truth” line such that the preambles read only:

A Federal Court has ordered [Defendants] to make this statement about [the topic of the statement].

This modified preamble is aimed “toward[] thwarting prospective efforts by Defendants” to commit future RICO violations. 2009 Opinion, 566 F.3d at 1144-45. It consists of only two parts, one that Defendants cannot challenge and one that Defendants largely do not challenge.

First, the preambles attribute the subsequent statements to a federal court. Defendants have consistently failed to challenge — and some specifically requested— language attributing the corrective statements to a court. See, e.g., JA 219 (Defendant Lorillard requesting preamble language stating, “The following statement is made by Lorillard Tobacco Company pursuant to a Court Order”); JA 138 (Defendants R.J. Reynolds and Brown & Williamson requesting that statements include the phrase “This message is furnished by [Defendant] pursuant to a Court Order”); JA 91 (Defendant Philip Morris requesting that it be allowed to disassociate itself from any statement with which it disagreed by attributing the statement to the Court); JA 417-19 (Defendants failing to object to language stating that the corrective statement was “Paid for by [Cigarette Manufacturer Name] under order of a Federal District court”). Even assuming it is true, as Defendants urge, that each of these instances involved proposals for a footer indicating that statements were issued “pursuant to a Court Order,” it is not clear why this particular language in a preamble suggests past misconduct while their own slightly different proposals did not.

Second, the modified preamble introduces the topic of the statement to follow. The topic statements are largely unchallenged, with the exception of Statements C and D. See infra Section 11(D).

The modified preambles satisfy RICO notwithstanding Defendants’ additional arguments. Defendants point to the fact that different preambles are permitted for the ITG Entities. Specifically, ITG Entities may include on package onserts and websites that “[a] Federal Court has ordered ... [Defendant] (the previous maker of [insert brand]) to make this statement. ...” J.A. 1127-29. Defendants urge that if the revised preambles did not suggest that Defendants engaged in past misconduct, there would be no need for such differentiation. However, this sort of language was anticipated and ordered long ago without opposition from the Defendants. Defs.’ Statement in Support of Unopposed Mot. For an Order Authorizing Transfer of Certain Cigarette Brands and Businesses to ITG Brands, LLC, 12-13, Philip Morris, No. 99-2496 (D.D.C. Apr. 30, 2015), ECF No. 6143 (ITG Entities representing that “ITG Brands will provide Corrective Statements on the packaging for the Acquired Brands, with the preambles tailored slightly to reflect truthfully that ITG Brands was not named as a defendant and was not found liable”); Order at 6-7, Philip Morris, No. 99-2496 (D.D.C. June 8, 2015), ECF No. 6151 (ordering that ITG Entities would be responsible for publishing Corrective Statements with “slightly modified preamble language for each Corrective Statement”). Indeed, such a distinction is necessary to preserve the accuracy of the corrective statements. The bullet points in Statement D — no longer challenged — specifically refer to Defendants’ past actions regarding nicotine manipulation. The modified preambles' preserve the accuracy of this statement by clarifying that the ITG Entities were not defendants and were not themselves originally ordered to make statements.

Because we hold that the modified preambles satisfy RICO, it cannot be true, as Defendants argue, that “the only reason to prefer the Government’s proposal is to taint Defendants with implications of past wrongdoing.” Defendants’ Br. at 39.

C. First Amendment

Although we have determined that the modified preambles do not exceed the statutory authority granted under RICO, the question remains as to whether this compelled speech is violative of Defendants’ First Amendment rights. The threshold question for this court is what standard applies to guide us in making that determination.

Traditionally, First Amendment questions arising in the arena of “commercial speech” have occasioned scrutiny under the standard of Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). Under Central Hudson, protected speech may be regulated if the governmental interest is “substantial.” Id. at 566, 100 S.Ct. 2343. Any such regulation must “directly advance! ] the governmental interest asserted.” Id. When analyzing this requirement, the Supreme Court “has commonly required evidence of a measure’s effectiveness.” Am. Meat Inst. v. Dep’t of Agric., 760 F.3d 18, 26 (D.C. Cir. 2014) (en banc) (“AMI”) (citing Edenfield v. Fane, 507 U.S. 761, 770-71, 113 S.Ct. 1792, 123 L.Ed.2d 543 (1993)). Finally, any regulation cannot be “more extensive than is necessary to serve that interest,” Cent. Hudson, 447 U.S. at 566, 100 S.Ct. 2343, a standard the government cannot satisfy “if it presents no evidence that less restrictive means would fail,” Nat’l Ass’n of Mfrs. v. SEC, 800 F.3d 518, 555 (D.C. Cir. 2015). Appellants argue that that standard is applicable to the present controversy.

The government argues that the present controversy is governed by Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985). Zauderer teaches that the careful “evidentiary parsing” mandated by Central Hudson “is hardly necessary when the government uses a disclosure mandate to achieve a goal of informing consumers about a particular product trait, assuming of course that the reason for informing consumers qualifies as an adequate interest.” AMI, 760 F.3d at 26 (citing Zauderer, 471 U.S. at 650, 105 S.Ct. 2265). “[B]y acting only through a reasonably crafted disclosure mandate, the government meets its burden of showing that the mandate advances its interest in making the ‘purely factual and uncontroversial information’ accessible to the recipients.” Id. (quoting Zauderer, 471 U.S. at 651, 105 S.Ct. 2265). Under Zauderer, then, as long as a disclosure requirement is not “unjustified or unduly burdensome,” a company’s rights “are adequately protected as long as disclosure requirements are reasonably related to the State’s interest in preventing deception of consumers.” 471 U.S. at 651, 105 S.Ct. 2265.

The parties agree that this Court previously held that Zauderer controlled the First Amendment issues in this case. See 2009 Opinion, 566 F.3d at 1144-45 (citing Zauderer as the test under which the corrective statements would be judged); see also Revised Preamble Opinion, 164 F.Supp.3d at 126 (noting that this Court did not question the district court’s ruling that Zauderer was the appropriate standard in this case). Because “a court involved in later phases of a lawsuit should not re-open questions decided,” Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 739 (D.C. Cir. 1995), we continue to analyze the preambles under Zauderer, Contrary to Defendants’ assertion, nothing in this Court’s en banc decision in AMI compels a contrary result. See AMI, 760 F.3d at 20 (holding that Zauderer applies “to disclosure mandates aimed at addressing problems other than [consumer] deception”). Indeed, the Corrective Statements Opinion, which continued to analyze the First Amendment issues in this case under the Zauderer standard, was decided after AMI. See Corrective Statements Opinion, 801 F.3d at 260 (applying AMI’s discussion of the Zauderer test to the First Amendment issues in this case). Defendants also argue that National Association of Manufacturers, 800 F.3d at 519-20, directs us to apply Central Hudson scrutiny to the preambles because they are unconnected to advertising or labeling at the point of sale. But another panel of this Court cannot overrule the law-of-the-case. See Laffey v. Nw. Airlines, Inc., 740 F.2d 1071, 1077 n.2 (D.C. Cir. 1984) (“A decision of one panel of this court may not be overruled by another panel; a panel’s decision may be rejected only by the court en banc.”).

We find that the preamble requirements are “reasonably related to the [government’s] interest in preventing deception of consumers.” Zauderer, 471 U.S. at 651, 105 S.Ct. 2265. The preambles are confined to “ ‘purely factual and uneontr-oversial information,’ geared toward[ ] thwarting prospective efforts by Defendants to either directly mislead consumers or capitalize on their prior deceptions by continuing to advertise in a manner that builds on consumers’ existing mispercep-tions.” 2009 Opinion, 566 F.3d at 1144-45 (quoting Zauderer, 471 U.S. at 651, 105 S.Ct. 2265). The modification discussed above, see supra Section 11(B), removes any inference of past misconduct such that the preambles no longer “convey a certain innuendo,” AMI, 760 F.3d at 27, or “moral responsibility,” Nat’l Ass’n of Mfrs., 800 F.3d at 530. Finally, mandating the inclusion of a one-sentence preamble is not unduly burdensome. “To the extent that the government’s interest is in assuring that consumers receive particular information (as it plainly is when mandating disclosures that correct deception), the means-end fit is self-evidently satisfied when the government acts only through a reasonably crafted mandate to disclose ‘purely factual and uncontroversial information’ about attributes of the product or service being offered.” AMI, 760 F.3d at 26.

D. Statement C and D topic descriptions

Defendants also challenge the topic descriptions in the preambles to Statements C and D, asserting that they exceed the remedial scope of civil RICO because they convey past wrongdoing. The Statement D topic description explains that Defendants are required to make the statement “about designing cigarettes to enhance the delivery of nicotine.” J.A. 922. Defendants cannot challenge the preamble language in Statement D. As this Court previously held, Defendants waived any challenge to language that they “manipulate[d] [the] design of cigarettes in order to enhance the delivery of nicotine” or “intentionally designed cigarettes to make them more addictive.” Corrective Statements Opinion, 801 F.3d at 258-59 (first alteration added).

The Statement C topic description states that Defendants are required to make the following statement “about selling and advertising low tar and light cigarettes as less harmful than regular cigarettes.” J.A. 922. This language was not previously considered and is indeed backward-looking, as it implies that Defendants previously sold and advertised cigarettes in such a way. Alternatively, a topic description requiring Defendants to make the statement “about low tar and light cigarettes being as harmful as regular cigarettes,” “the harmfulness of low tar and light cigarettes,” or “the lack of significant health benefit from smoking low tar and light cigarettes” would be permissible under both RICO and the First Amendment.

Conclusion

For the reasons set forth above, the district court’s opinion and order establishing the preamble language in its corrective-statement remedy is affirmed in part and reversed in part.

In short, while we remand this matter for further proceedings, we see no reason why extensive proceedings will be required in the district court. With the minor revisions mandated in this opinion, the district court can simply issue an order requiring the corrected statements remedy to go forward.


text:
    MINTEQ INTERNATIONAL, INC. and Specialty Minerals Inc., wholly owned subsidiaries of Mineral Technologies, Inc., Petitioners v. NATIONAL LABOR RELATIONS BOARD, Respondent International Union of Operating Engineers, Local 150, AFL-CIO, Intervenor
    No. 16-1276 Consolidated with 16-1335
    United States Court of Appeals, District of Columbia Circuit.
    Argued March 20, 2017
    Decided April 28, 2017

      Maurice Baskin argued the cause for petitioners. With him on the briefs were A. John Harper III, Houston, TX, Jonathan 0. Levine, and Adam P. Tuzzo, Milwaukee, WI.
    Eric Weitz, Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Robert J. Englehart, Supervisory Attorney.
    Charles R. Kiser, Chicago, IL, argued the cause and filed the brief for intervenor. Brian Powers entered an appearance.
    Before: GARLAND, Chief Judge, GRIFFITH, Circuit Judge, and SENTELLE, Senior Circuit Judge.
   SENTELLE, Senior Circuit Judge:

In 2012, employer-petitioner Minteq International, Inc. began requiring new employees to sign a Non-Compete and Confidentiality Agreement. The National Labor Relations Board found that Minteq violated section 8(a)(1) and (5) of the National Labor Relations Act by failing to afford the employees’ union notice or an opportunity to bargain over Minteq’s unilateral implementation of the requirement that employees sign the agreement. We deny Minteq’s petition for review and enforce the Board’s Order.

I.

Minteq International, Inc. (“Minteq”) sells the application of its proprietary refractory materials for the walls of furnaces used in the steel-making process, among other things. In 2012, Minteq’s employees were represented by the International Union of Operating Engineers, Local 150, AFL-CIO and covered by a collective bargaining agreement (“CBA”). The relevant CBA contained a management rights provision stating in part:

Except as expressly modified or restricted by a specific provision of this Agreement, all statutory and inherent managerial rights, prerogatives, and functions are retained and vested exclusively in the Company, including, but not limited to, the rights: ... to control and regulate the use of machinery, facilities, equipment, and other property of the Company; to introduce new or improved research, production, service,, distribution, and maintenance methods, materials, machinery, and equipment; to issue, amend and revise work rules and Standards of Conduct, discipline steps, policies and practices; and to take whatever action is either necessary or advisable to manage and fulfill the mission of the Company and to direct the Company’s employees.

The CBA also states:

An employee who has never accrued seniority under this Agreement or an employee rehired shall be in “probationary” status until completion of six (6) months of employment.... The discipline, layoff or discharge of an employee who is in probationary status shall not be a violation of this Agreement.

Pursuant to the CBA, Minteq can discharge or discipline probationary employees without just cause or recourse to the grievance and arbitration process.

In 2012, without bargaining or giving notice to the Union, Minteq began requiring new employees to sign a Non-Compete and Confidentiality Agreement (“NCCA”). The agreement, approximately 4-1/2 pages long, includes fifteen substantive sections. Sections 1 and 2 are titled “Covenant Not To Compete” and “Confidential Information.” These sections, among other things, prohibit employees from working for Min-teq’s competitors for eighteen months following their employment and prohibit the disclosure of confidential or proprietary information. Section 3, “Inventions,” among other things, requires employees to assign to Minteq the rights to any inventions or “related know-how” developed during their employment with Minteq. The NCCA also included section 4 entitled “Interference with Relationships” and section 12 “At-Will Employee[s].” Minteq did not bargain with the Union before implementing the NCCA. Section 4 provides:

Interference with Relationships. During the Restricted Period Employee shall not, directly or indirectly, as employee, agent, consultant, stockholder, director, partner or in any other individual or representative capacity intentionally solicit or encourage any present or future customer or supplier of the Company to terminate or otherwise alter his, her or its relationship with the Company in an adverse manner.

Section 12 states:

At-Will-Employee. Employee acknowledges that this Agreement does not affect Employee’s status as an employee-' at-will and that no additional right is provided herein which changes such status.

As with the agreement as a whole, Min-teq did not notify the Union of the restrictions contained in these paragraphs or bargain with the Union over their use. On October 30, 2014, the Union filed an unfair labor practice charge against Minteq for its failure to bargain with the Union over the NCCA. After proceedings before an ALJ and an appeal by Minteq, on July 29, 2016, the Board issued its ruling. The Board held that the Non-Compete Agreement was a mandatory subject of bargaining not covered by the parties’ CBA. Therefore, it held that Minteq violated the National Labor Relations Act (the “Act”) by implementing it without first bargaining with the Union. The Board also held that Minteq separately violated the Act by implementing the Interference with Relationships and At-Will Employee provisions. The Board ordered Minteq to cease and desist from utilizing the NCCA and to comply with other remedial conditions. Minteq petitions for review.

II.

A.

The “classification of bargaining subjects as ‘terms or conditions of employment’ is a matter concerning which the Board has special expertise.” Local Union No. 189, Amalgamated Meat Cutters v. Jewel Tea Co., 381 U.S. 676, 685-86, 85 S.Ct. 1596, 14 L.Ed.2d 640 (1965). Therefore, “our general approach to a Board construction of the NLRA is quite deferential.” United Food & Commercial Workers Int’l Union, Local 150-A v. NLRB, 880 F.2d 1422, 1433 (D.C. Cir. 1989) (“UFCW”). We must uphold the Board’s determinations regarding which collective-bargaining subjects constitute mandatory subjects of bargaining as long as the Board’s determinations are “reasonably defensible.” Ford Motor Co. v. NLRB, 441 U.S. 488, 497, 99 S.Ct. 1842, 60 L.Ed.2d 420 (1979). However, the Court gives no special deference to the Board’s interpretation of contracts, instead interpreting contracts de novo. Int’l Bhd. of Elec. Workers, Local 47 v. NLRB, 927 F.2d 635, 640-41 (D.C. Cir. 1991).

B.

l.

The Board’s conclusion that the NCCA was a mandatory subject of bargaining is largely dispositive of the first issue before us, that is, whether the Board erred in holding that the imposition of the NCCA requirement for hiring constituted an unfair labor practice (“ULP”). The Act requires parties to bargain in good faith regarding “wages, hours, and other terms and conditions of employment.” 29 U.S.C. § 158(a)(5), (d); see Ford Motor Co., 441 U.S. at 495-96, 99 S.Ct. 1842. The Board asserts that the NCCA is a mandatory subject of bargaining because it directly “settle[s] an aspect of the relationship between the employer and the employees.” First Nat’l Maint. Corp. v. NLRB, 452 U.S. 666, 676, 101 S.Ct. 2573, 69 L.Ed.2d 318 (1981) (quoting Allied Chem. & Alkali Workers, Local Union No. 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157, 177, 92 S.Ct. 383, 30 L.Ed.2d 341 (1971)). The Board noted that the NCCA “prohibits an employee from working for another company that might have any connection to [Min-teq’s] business both during his employment and for 18 months afterward, effectively imposing a cost in lost economic opportunities on employees as a consequence of working for [Minteq].” Minteq Int’l, Inc., 364 N.L.R.B. No. 63, at 3 (July 29, 2016). It also “imposes economic opportunity costs on employees by broadly restricting their ability to benefit from their discoveries, inventions, and acquired knowledge related to working for” Minteq. Id. Thus, the NCCA has “a clear and direct economic impact on employees — and thus represents] precisely the sort of matters suitable for collective bargaining.” Id.; cf. Pittsburgh Plate Glass, 404 U.S. at 180, 92 S.Ct. 383 (suggesting that provisions affecting the future economic situation “of active workers are part and parcel of their overall compensation and hence a well-established statutory subject of bargaining”).

The Board therefore rejected Minteq’s argument that the provisions of the NCCA were at the core of entrepreneurial control with “only an indirect and attenuated impact on the employment relationship.” First Nat’l Maint., 452 U.S. at 677, 101 S.Ct. 2573. This conclusion is consistent with longstanding, uniform Board precedent finding non-competition and non-disclosure requirements to be mandatory subjects of bargaining. See Nat’l Ass’n of Gov’t Emps., 327 N.L.R.B. 676, 676, 684 & n.8 (1999), enforced, 205 F.3d 1324 (2d Cir. 1999); Lower Bucks Cooling & Heating, 316 N.L.R.B. 16, 16, 22 (1995); Bolton-Emerson, Inc., 293 N.L.R.B. 1124, 1124, 1129-30 (1989), enforced, 899 F.2d 104 (1st Cir. 1990). Because the Board’s reasoning is “reasonably defensible,” UFCW, 880 F.2d at 1433, we uphold its determination that the implementation of the NCCA is a mandatory subject of bargaining.

2.

Although implementation of the NCCA would typically be a mandatory subject of bargaining, Minteq relies on the theory that it had no duty to bargain over the implementation if the provisions of the NCCA were covered by the CBA. It is true that a “union may exercise its right to bargain about a particular subject by negotiating for a provision in the collective bargaining contract that fixes the parties’ rights and forecloses further mandatory bargaining as to that subject.” Int’l Bhd. of Elec. Workers, 927 F.2d at 640 (citations omitted). Otherwise put, “to the extent that a bargain resolves any issue, it removes that issue pro tanto from the range of bargaining.” Connors v. Link Coal Co., 970 F.2d 902, 905 (D.C. Cir. 1992).

However, we agree with the Board that the CBA did not cover all of the NCCA’s provisions. Interpreting the CBA de novo, we conclude that, at a minimum, nothing in the management-rights clause of the CBA permits Minteq to impose obligations on employees after they leave employment, as most of the NCCA’s provisions purport to do. Nor does the management-rights clause permit Minteq to bind employees’ “heirs, successors, and assignees.” While the management-rights clause is a broad one, it is not limitless. In the clause, the parties agreed that the Company retains rights “including, but not limited to” certain enumerated rights. These enumerated rights are limited to traditional managerial prerogatives to make basic business decisions and govern conduct in the workplace, such as hiring, assigning and directing work, setting productivity standards, and issuing Standards of Conduct. The clause provides nothing with respect to the heirs and assignees of employees or to their further capacities after the end of employment. While the list of rights concludes with a general provision granting the Company the right to “take whatever action is either necessary or advisable to manage and fulfill the mission of the Company and to direct the Company’s employees,” J.A. 502, we do not read this phrase to “include conduct wholly unlike that specified in the immediately preceding list,” Mohave Elec. Co-op., Inc. v. NLRB, 206 F.3d 1183, 1191-92 (D.C. Cir. 2000). In sum, it is not evident that the parties bargained, certainly not to agreement, on the subjects covered by the NCCA.

It was therefore unlawful for Minteq to unilaterally implement the entire NCCA. The Board concedes that, after the existing NCCA is rescinded, Minteq could lawfully implement unilaterally some aspects of the NCCA that do fall within the CBA’s coverage. But because Minteq does not argue that any portions of the NCCA are severable in a way that would permit the Board to rescind only those portions not covered by the clause, and because it is not necessary to our disposition, we do not determine which, if any, of the remaining aspects of the NCCA fall within the CBA.

3.

In addition to finding the general ULP for the imposition of the NCCA, the Board further concluded that two specific provisions of the agreement — section 4 covering interference with the relationships and section 12 titled At-Will Employee — constituted separate ULPs. The Board ruled that these provisions were overbroad and independently violated section 8(a)(1) of the Act. Section 8(a)(1) makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of’ their section 7 rights to unionize and engage in related labor activities. 29 U.S.C. § 158(a)(1).

An employer violates section 8(a)(1) by maintaining an employment practice that “ ‘would reasonably tend to chill employees in the exercise’ of their statutory rights.” Adtranz ABB Daimler-Benz Transp., N.A., Inc. v. NLRB, 253 F.3d 19, 25 (D.C. Cir. 2001) (quoting Lafayette Park Hotel, 326 N.L.R.B. 824, 825 (1998)). Even if an employer’s rule does not “ ‘explicitly restrict[ ]’ section 7 activity,” the rule is nonetheless a violation if “employees would reasonably construe the language to prohibit” them from exercising their fights. Guardsmark, LLC v. NLRB, 475 F.3d 369, 374 (D.C. Cir. 2007) (quoting Martin Luther Mem’l Home, 34 N.L.R.B. No. 75, at *1-2 (May 19, 2004)). Board determinations as to whether an employer’s conduct unlawfully interferes with protected activity “are entitled to considerable deference so long as they are ‘reasonably defensible.’ ” Adtranz, 253 F.3d at 25 (quoting Ford Motor Co., 441 U.S. at 497, 99 S.Ct. 1842).

It was at the least reasonably defensible for the Board to conclude that employees would reasonably construe the language of these provisions of the NCCA to prohibit section 7 activity. The Interference with Relationships clause, as set forth above, restrains an employee from “directly or indirectly ..., soliciting] or encouraging] any ... customer or supplier of the Company to terminate or otherwise alter his, her or its relationship with the Company....”

The Board found that employees would reasonably read the language of the Interference with Relationships clause as a prohibition against “asking customers to boycott [Minteq’s] products in support of a labor dispute with the Respondent,” in violation of employees’ section 7 rights. We have “recognized the right of employees to support a consumer boycott of their employer’s products in connection with a labor dispute.... ” DIRECTV, Inc. v. NLRB, 837 F.3d 25, 33 (D.C. Cir. 2016). We uphold the Board’s determination that the Interference with Relationships provision could reasonably be construed to prohibit employees from soliciting customers for support in a labor dispute and thereby violates section 8.

Second, after six months of employment, the CBA imposes on Minteq a “just cause” standard for any discipline, suspension, or discharge. However, the At-Will Employee provision states that the

Employee acknowledges that this Agreement does not affect Employee’s status as an employee-at-will and that no additional right is provided herein which changes such status.

The Board found that employees “would reasonably doubt whether the CBA’s ‘just cause’ provision remains in effect” after implementation of the At-Will Employee provision because “there is nothing in [the At-Will Employee provision], or the NCCA more broadly, that suggests that the rule applies only to new, probationary employees.” We agree that an employee could reasonably construe this provision to make employees removable at will for the entire time they are employed, rather than only during the initial six-month probationary period as provided in the CBA.

Consequently, Minteq may not implement the Interference with Relationships or At-Will Employee provisions — regardless of whether they are covered by the CBA — because those provisions independently violate section 8(a)(1) of the Act.

For the reasons set forth above, Min-teq’s petition for review is denied and the Board’s Order is enforced.

So ordered.