text:
Watson v. Philip Morris Cos.

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

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

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

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

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

420 F.3d 852, reversed and remanded.

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

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

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

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

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

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

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

title: Watson v. Philip Morris Cos.


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Page:Adam's reports on vernacular education in Bengal and Behar, submitted to Government in 1835, 1836 and 1838.djvu/36

22 the affections of the people, intimately connected with their habits and associations, and so closely interwoven with their prejudices and predilections, that any attempt to displace them with more highly organized schools and better trained school-masters, will result, as all such attempts have heretofore resulted, in hopeless failure.

“Since Mr. Adam wrote, the general prosperity of Bengal has advanced so considerably, that the cost of food and value of labor have at least doubled. The pecuniary reward that might then have stimulated the teacher, would, therefore, now be insufficient.”

Babu writes:—

"“I would suggest that, if arrangements can be made for instructing the pupils of village schools in practical agriculture and horticulture, it will not only conduce to the improvement of the material condition of the people, but serve substantially the cause of popular education which the Government is so anxious to promote. What the village school pupils should learn must be practically and not from books. This instruction I submit should be on manures, nature of soils required for different plants, different kinds of grafting, modes of germinature, successful growth, preservation, &c.

“It may be naturally asked by whom is this instruction to be given, and how can this object be most economically carried out? To this I would reply that there is a body of intelligent mallees and nurserymen in and out of Calcutta whose services can be secured for Rupees 12 to 16 a month, and one or two of them may be employed experimentally as teachers till the utility of extending this mode of tuition is established beyond doubt.”"

Raja states:—

"“As soon as the people will begin to reap the fruits of a solid vernacular education, agricultural and industrial schools may be established in order to qualify the enlightened masses to become useful members of society. Nothing should be guarded against more carefully than the insensible introduction of a system whereby, with a smattering knowledge of English, youths are weaned from the plough, the axe, and the loom, to render them ambitious only for the clerkship for which hosts would besiege the Government and Mercantile Offices, and the majority being disappointed (as they must be), would (with their little knowledge inspiring pride) be unable to return to their trade, and would necessarily turn vagabonds.”"

The Reverend expresses his opinion:—

"“A ryot that can read and write may be able to sign his own name in his koboolut after reading it himself, may examine the pottah or the dakhila granted to him and the entries made in the Zemindar’s books when he takes izarah or pays rent, may when wronged write out an application to the proper authority without the intervention of a Court sharper in the form of a professional scribe, may read for himself depositions taken in his name and affix his own signature, and in various other ways check the delinquencies of oppressors, forgers, and perjurers.”"

Major, Acting Director of Public Instruction, states:—

“The high price of elementary school books at present is another obstacle. A Committee of gentlemen, lately appointed to enquire into this subject, report that a poor boy in the interior must pay a premium of 108 per cent. over the actual cost price for


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text:
Watson v. Philip Morris Cos./Opinion of the Court

[p145] JUSTICE BREYER delivered the opinion of the Court.

The federal officer removal statute permits a defendant to remove to federal court a state-court action brought against the

"'United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, sued in an official or individual capacity for any act under color of such office ' 28 U.S.C. § 1442(a)(1) (emphasis added)."

The question before us is whether the fact that a federal regulatory agency directs, supervises, and monitors a company's activities in considerable detail brings that company within the scope of the italicized language ("acting under" an "officer" of the United States) and thereby permits removal. We hold that it does not. [p146]

I
Lisa Watson and Loretta Lawson, the petitioners, filed a civil lawsuit in Arkansas state court claiming that the Philip Morris Companies, the respondents, violated state laws prohibiting unfair and deceptive business practices. The complaint focuses upon advertisements and packaging that describe certain Philip Morris brand cigarettes (Marlboro and Cambridge Lights) as "light," a term indicating lower tar and nicotine levels than those present in other cigarettes. More specifically, the complaint refers to the design and performance of Philip Morris cigarettes that are tested in accordance with the Cambridge Filter Method, a method that "the tobacco industry [uses] to 'measure' tar and nicotine levels in cigarettes." App. to Pet. for Cert. 63a–64a. The complaint charges that Philip Morris "manipulat[ed] the design" of its cigarettes, and "[e]mploy[ed] techniques that" would cause its cigarettes "to register lower levels of tar and nicotine on [the Cambridge Filter Method] than would be delivered to the consumers of the product." Id., at 63a–65a. The complaint adds that the Philip Morris cigarettes delivered "greater amounts of tar and nicotine when smoked under actual conditions" than the adjective light as used in its advertising indicates. Id., at 65a. In view of these and other related practices, the complaint concludes that Philip Morris' behavior was "deceptive and misleading" under Arkansas law. Id., at 64a, 66a.

Philip Morris, referring to the federal officer removal statute, removed the case to Federal District Court. That court, in turn, held that the statute authorized the removal. The court wrote that the complaint attacked Philip Morris' use of the Government's method of testing cigarettes. For this reason (and others), it held that the petitioners had sued Philip Morris for "act[s]" taken "under" the Federal Trade Commission (FTC), a federal agency (staffed by federal "officer[s]").

[p147] The District Court certified the question for interlocutory review. And the United States Court of Appeals for the Eighth Circuit affirmed. Like the District Court, it emphasized the FTC's detailed supervision of the cigarette testing process. It also cited lower court cases permitting removal by heavily supervised Government contractors. See 420 F.3d 852, 857 (2005); Winters v. Diamond Shamrock Chemical Co., 149 F.3d 387 (CA5 1998) (authorizing removal of a tort suit against private defense contractors that manufactured Agent Orange). The Eighth Circuit concluded that Philip Morris was "acting under" federal "officer[s]," namely, the FTC, with respect to the challenged conduct. 420 F.3d, at 854.

We granted certiorari. 549 U.S. 1162 (2007). And we now reverse the Eighth Circuit's determination.

II
The federal statute permits removal only if Philip Morris, in carrying out the "act[s]" that are the subject of the petitioners' complaint, was "acting under" any "agency" or "officer" of "the United States." 28 U.S.C. § 1442(a)(1). The words "acting under" are broad, and this Court has made clear that the statute must be "liberally construed." Colorado v. Symes, 286 U.S. 510, 517 (1932); see Arizona v. Manypenny, 451 U.S. 232, 242 (1981); Willingham v. Morgan, 395 U.S. 402, 406–407 (1969). But broad language is not limitless. And a liberal construction nonetheless can find limits in a text's language, context, history, and purposes.

Beginning with history, we note that Congress enacted the original federal officer removal statute near the end of the War of 1812, a war that was not popular in New England. See id., at 405. Indeed, shipowners from that region filed many state-court claims against federal customs officials charged with enforcing a trade embargo with England. See Wiecek, The Reconstruction of Federal Judicial Power, 1863– [p148] 1875, 13 Am. J. Legal Hist. 333, 337 (1969). Congress responded with a provision that permitted federal customs officers and "any other person aiding or assisting" those officers to remove a case filed against them "in any state court" to federal court. Customs Act of 1815, ch. 31, § 8, 3 Stat. 198 (emphasis added). This initial removal statute was "[o]bviously an attempt to protect federal officers from interference by hostile state courts." Willingham, 395 U.S., at 405.

In the early 1830's, South Carolina passed a Nullification Act declaring federal tariff laws unconstitutional and authorizing prosecution of the federal agents who collected the tariffs. See ibid. Congress then enacted a new statute that permitted "any officer of the United States, or other person," to remove to federal court a lawsuit filed against the officer "for or on account of any act done under the revenue laws of the United States." Act of Mar. 2, 1833, ch. 57, § 3, 4 Stat. 633 (emphasis added). As Senator Daniel Webster explained at the time, where state courts might prove hostile to federal law, and hence to those who enforced that law, the removal statute would "give a chance to the [federal] officer to defend himself where the authority of the law was recognised." 9 Cong. Deb. 461 (1833).

Soon after the Civil War, Congress enacted yet another officer removal statute, permitting removal of a suit against any revenue officer "on account of any act done under color of his office" by the revenue officer and "any person acting under or by authority of any such officer." Act of July 13, 1866, ch. 184, § 67, 14 Stat. 171 (emphasis added). Elsewhere the statute restricted these latter persons to those engaged in acts "for the collection of taxes." § 67, id., at 172.

In 1948, Congress again revised the statute, dropping its limitation to the revenue context. And it included the rewritten statute within its 1948 recodification. See Act of June 25, 1948, ch. 646, § 1442(a), 62 Stat. 938, 28 U.S.C. § 1442(a). It is this version of the statute that, with the ex- [p149] ception of a modification in response to this Court's decision in International Primate Protection League v. ''Administrators of Tulane Ed. Fund'', 500 U.S. 72 (1991), is now before us. While Congress expanded the statute's coverage to include all federal officers, it nowhere indicated any intent to change the scope of words, such as "acting under," that described the triggering relationship between a private entity and a federal officer.

Turning to precedent, we point to three cases, all involving illegal liquor, which help to illustrate the need for, and the workings of, the pre-1948 removal statutes. In 1878, a federal revenue officer, James Davis, raided an illegal distillery in Tennessee; was ambushed by several armed men; returned the ambushers' gunfire; and shot one of his attackers dead. See Tennessee v. Davis, 100 U.S. 257, 261 (1880). Tennessee indicted Davis for murder. The Court held that the statute permitted Davis to remove the case to federal court, reasoning that the Federal Government "can act only through its officers and agents, and they must act within the States." Id., at 263. Removal, the Court found, would help to prevent hostile States from "paralyz[ing]" the Federal Government and its initiatives. Ibid.

About the same time, a U.S. Army corporal (also called Davis, Lemuel Davis) along with several other soldiers helped a federal revenue officer try to arrest a distiller for violating the internal-revenue laws. The soldiers surrounded the house; the distiller escaped through a hole in a side wall; Corporal Davis shot the suspect; and South Carolina indicted Davis for murder. Davis removed the case, and this Court upheld the removal. The Court acknowledged that, although Davis was not a revenue officer, he was a person "who lawfully assist[ed]" a revenue officer "in the performance of his official duty." Davis v. South Carolina, 107 U.S. 597, 600 (1883).

In the 1920's, Maryland charged a group of prohibition agents and a private person acting as their driver with a [p150] murder committed during a distillery raid. See Maryland v. Soper (No. 1), 270 U.S. 9 (1926). The prohibition agents and their driver sought to remove the state murder trial to federal court. This Court ultimately rejected their removal efforts for reasons not relevant here. But in doing so it pointed out that the private person acting "as a chauffeur and helper to the four officers under their orders and direction" had "the same right to the benefit of" the removal provision as did the federal agents. Id., at 30.

Apart from demonstrating the dangers associated with working in the illegal alcohol business, these three cases—Tennessee v. Davis, Davis v. South Carolina, and Maryland v. Soper—illustrate that the removal statute's "basic" purpose is to protect the Federal Government from the interference with its "operations" that would ensue were a State able, for example, to "arres[t]" and bring "to trial in a State cour[t] for an alleged offense against the law of the State," "officers and agents" of the Federal Government "acting within the scope of their authority." Willingham, 395 U.S., at 406 (internal quotation marks omitted). See also ibid. (noting that the "purpose" of the statute "is not hard to discern"). State-court proceedings may reflect "local prejudice" against unpopular federal laws or federal officials. Soper, supra, at 32; see Manypenny, 451 U.S., at 242 (noting that removal permits trials to occur free from "local prejudice"). In addition, States hostile to the Federal Government may impede through delay federal revenue collection or the enforcement of other federal law. See Tennessee v. Davis, supra, at 263; cf. Findley v. Satterfield, 9 F. Cas. 67, 68 (No. 4,792) (CC ND Ga. 1877). And States may deprive federal officials of a federal forum in which to assert federal immunity defenses. See International Primate Protection League, supra, at 86–87; Willingham, supra, at 407 ("[O]ne of the most important reasons for removal is to have the validity of the defense of official immunity tried in a federal court"); Jefferson County v. Acker, 527 U.S. 423, [p151] 447 (1999) (SCALIA, J., concurring in part and dissenting in part) (noting that "the main point" of the federal officer removal statute "is to give officers a federal forum in which to litigate the merits of immunity defenses").

Where a private person acts as an assistant to a federal official in helping that official to enforce federal law, some of these same considerations may apply. Regardless, in Davis v. South Carolina the Court wrote that the removal statute applies to private persons "who lawfully assist" the federal officer "in the performance of his official duty." 107 U.S., at 600. And in City of Greenwood v. Peacock, 384 U.S. 808, 824 (1966), in interpreting a related removal provision, the Court repeated that the statute authorized removal by private parties "only" if they were "authorized to act with or for [federal officers or agents] in affirmatively executing duties under federal law." All the Court's relevant post-1948 federal officer removal cases that we have found reflect or are consistent with this Court's pre-1948 views. See Mesa v. California, 489 U.S. 121 (1989); Manypenny, supra; Willingham, supra; Peacock, supra.

III
With this history and precedent in mind, we return to the statute's language. The relevant relationship is that of a private person "acting under" a federal "officer" or "agency." 28 U.S.C. § 1442(a)(1) (emphasis added). In this context, the word "under" must refer to what has been described as a relationship that involves "acting in a certain capacity, considered in relation to one holding a superior position or office." 18 Oxford English Dictionary 948 (2d ed. 1989). That relationship typically involves "subjection, guidance, or control." Webster's New International Dictionary 2765 (2d ed. 1953). See also Funk & Wagnalls New Standard Dictionary of the English Language 2604 (1942) (defining "under" as meaning "[s]ubordinate or subservient to," "[s]ubject to guidance, tutorship, or direction of"); 18 Oxford English Diction- [p152] ary, supra, at 949 ("[s]ubject to the instruction, direction, or guidance of"). In addition, precedent and statutory purpose make clear that the private person's "acting under" must involve an effort to assist, or to help carry out, the duties or tasks of the federal superior. See, e.g., Davis v. South Carolina, supra, at 600; see also supra, at 149–151.

In our view, the help or assistance necessary to bring a private person within the scope of the statute does not include simply complying with the law. We recognize that sometimes an English speaker might say that one who complies with the law "helps" or "assists" governmental law enforcement. Taxpayers who fill out complex federal tax forms, airline passengers who obey federal regulations prohibiting smoking, for that matter well-behaved federal prisoners, all "help" or "assist" federal law enforcement authorities in some sense of those words. But that is not the sense of "help" or "assist" that can bring a private action within the scope of this statute. That is in part a matter of language. One would usually describe the behavior of the taxpayers, airline passengers, and prisoners we have described as compliance with the law (or acquiescence to an order), not as "acting under" a federal official who is giving an order or enforcing the law. It is also in part a matter of the history and the precedent we have discussed. See supra, at 147–151.

Finally, it is a matter of statutory purpose. When a company subject to a regulatory order (even a highly complex order) complies with the order, it does not ordinarily create a significant risk of state-court "prejudice." Cf. Soper, supra, at 32; Manypenny, supra, at 241–242. Nor is a state-court lawsuit brought against such a company likely to disable federal officials from taking necessary action designed to enforce federal law. Cf. Tennessee v. Davis, 100 U.S., at 262–263. Nor is such a lawsuit likely to deny a federal forum to an individual entitled to assert a federal claim of immunity. See, e.g., Willingham, supra, at 407.

[p153] The upshot is that a highly regulated firm cannot find a statutory basis for removal in the fact of federal regulation alone. A private firm's compliance (or noncompliance) with federal laws, rules, and regulations does not by itself fall within the scope of the statutory phrase "acting under" a federal "official." And that is so even if the regulation is highly detailed and even if the private firm's activities are highly supervised and monitored. A contrary determination would expand the scope of the statute considerably, potentially bringing within its scope state-court actions filed against private firms in many highly regulated industries. See, e.g., Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. § 136a (2000 ed. and Supp. IV) (mandating disclosure of testing results in the context of pesticide registration). Neither language, nor history, nor purpose lead us to believe that Congress intended any such expansion.

IV
Philip Morris advances two important arguments to the contrary. First, it points out that lower courts have held that Government contractors fall within the terms of the federal officer removal statute, at least when the relationship between the contractor and the Government is an unusually close one involving detailed regulation, monitoring, or supervision. See, e.g., Winters, 149 F.3d 387. And it asks why, if close supervision is sufficient to turn a private contractor into a private firm "acting under" a Government "agency" or "officer," does it not do the same when a company is subjected to intense regulation.

The answer to this question lies in the fact that the private contractor in such cases is helping the Government to produce an item that it needs. The assistance that private contractors provide federal officers goes beyond simple compliance with the law and helps officers fulfill other basic governmental tasks. In the context of Winters, for example, Dow Chemical fulfilled the terms of a contractual agreement [p154] by providing the Government with a product that it used to help conduct a war. Moreover, at least arguably, Dow performed a job that, in the absence of a contract with a private firm, the Government itself would have had to perform.

These circumstances distinguish Winters from this case. For present purposes that distinction is sufficient. And we need not further examine here (a case where private contracting is not at issue) whether and when particular circumstances may enable private contractors to invoke the statute.

Second, Philip Morris argues that its activities at issue here did not consist simply of compliance with regulatory laws, rules, and orders. It contends that the FTC, after initially testing cigarettes for tar and nicotine, "delegated authority" for that task to an industry-financed testing laboratory in 1987. E.g., Brief for Respondents 31 (emphasis added). And Philip Morris asserts that (along with other cigarette companies) it was acting pursuant to that delegation. It adds that ever since this initial "delegation" the FTC has "extensive[ly] supervis[ed]" and "closely monitored" the manner in which the laboratory tests cigarettes. Id., at 37, 30, 39. Philip Morris concludes that, given all these circumstances, just as Dow was "acting under" officers of the Department of Defense when it manufactured Agent Orange, see Winters, supra, at 399, so Philip Morris is "acting under" officers of the FTC when it conducts cigarette testing. See Brief for Respondents 38.

For argument's sake we shall overlook the fact that the petitioners appear to challenge the way in which Philip Morris "designed" its cigarettes, not the way in which it (or the industry laboratory) conducted cigarette testing. We also shall assume the following testing-related facts that Philip Morris sets forth in its brief:

(1) In the 1950's, the FTC ordered tobacco companies to stop advertising the amount of tar and nicotine contained in their cigarettes. See id., at 3.

[p155] (2) In 1966, the FTC altered course. It permitted cigarette companies to advertise "tar and nicotine yields" provided that the company had substantiated its statement through use of the Cambridge Filter Method, a testing method developed by Dr. Clyde Ogg, a Department of Agriculture employee. Id., at 4–5.

(3) The Cambridge Filter Method uses "a smoking machine that takes a 35 milliliter puff of two seconds' duration on a cigarette every 60 seconds until the cigarette is smoked to a specified butt length." FTC v. Brown & Williamson Tobacco Corp., 778 F.2d 35, 37 (CADC 1985). It then measures the amount of tar and nicotine that is delivered. That data, in turn, determine whether a cigarette may be labeled as "light." This method, Dr. Ogg has testified, "will not tell a smoker how much tar and nicotine he will get from any given cigarette," but it "will indicate" whether a smoker "will get more from one than from another cigarette if there is a significant difference between the two and if he smokes the two in the same manner." Brief for Respondents 5–6 (internal quotation marks omitted).

(4) In 1967, the FTC began to use its own laboratory to perform these tests. See id., at 6. And the Cambridge Filter Method began to be referred to as "the 'FTC Method. Id., at 4.

(5) The FTC published the testing results periodically and sent the results annually to Congress. See id., at 7.

(6) Due to cost considerations, the FTC stopped testing cigarettes for tar and nicotine in 1987. Simultaneously, the tobacco industry assumed responsibility for cigarette testing, running the tests according to FTC specifications and permitting the FTC to monitor the process closely. See ibid.

(7) The FTC continues to publish the testing results and to send them to Congress. See ibid.

[p156] (8) The tobacco industry has followed the FTC's requirement that cigarette manufacturers disclose (and make claims about) tar and nicotine content based exclusively on the results of this testing. See id., at 8–9.

Assuming this timeline, Philip Morris' argument nonetheless contains a fatal flaw—a flaw of omission. Although Philip Morris uses the word "delegation" or variations many times throughout its brief, we have found no evidence of any delegation of legal authority from the FTC to the industry association to undertake testing on the Government agency's behalf. Nor is there evidence of any contract, any payment, any employer/employee relationship, or any principal/agent arrangement.

We have examined all of the documents to which Philip Morris and certain supporting amici refer. Some of those documents refer to cigarette testing specifications, others refer to the FTC's inspection and supervision of the industry laboratory's testing, and still others refer to the FTC's prohibition of statements in cigarette advertising. But none of these documents establish the type of formal delegation that might authorize Philip Morris to remove the case.

Several former FTC officials, for example, filed an amicus brief in which they state that "[i]n 198[7] the FTC delegated testing responsibility to the private Tobacco Industry Testing Lab (the 'TITL')." Brief for Former Commissioners and Senior Staff of the FTC 11. But in support of this proposition the brief cites a single source, a letter from the cigarette manufacturers' lawyer to an FTC official. That letter states:

"'[M]ajor United States cigarette manufacturers, who are responsible for the TITL's operations and on whose behalf we are writing, do not believe that Commission oversight is needed Nevertheless, as an accommodation and in the spirit of cooperation, the manufacturers are prepared to permit Commission employees [p157] to monitor the TITL testing program ' Letter from John P. Rupp to Judith P. Wilkenfeld (June 30, 1987), online at http://tobaccodocuments.org/nysa_ti_s1/TI57900738.html (as visited June 7, 2007, and available in Clerk of Court's case file)."

Nothing in this letter refers to a delegation of authority. And neither Congress nor federal agencies normally delegate legal authority to private entities without saying that they are doing so.

Without evidence of some such special relationship, Philip Morris' analogy to Government contracting breaks down. We are left with the FTC's detailed rules about advertising, specifications for testing, requirements about reporting results, and the like. This sounds to us like regulation, not delegation. If there is a difference between this kind of regulation and, say, that of Food and Drug Administration regulation of prescription drug marketing and advertising (which also involve testing requirements), see Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1316 (CADC 1998), that difference is one of degree, not kind.

As we have pointed out, however, differences in the degree of regulatory detail or supervision cannot by themselves transform Philip Morris' regulatory compliance into the kind of assistance that might bring the FTC within the scope of the statutory phrase "acting under" a federal "officer." Supra, at 152. And, though we find considerable regulatory detail and supervision, we can find nothing that warrants treating the FTC/Philip Morris relationship as distinct from the usual regulator/regulated relationship. This relationship, as we have explained, cannot be construed as bringing Philip Morris within the terms of the statute.

For these reasons, the judgment of the Eighth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.


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Rh every spelling book or Primer he may have occasion to purchase, and, as Native school-boys generally destroy six or a dozen before they master its contents, the matter, to their poor parents, is one of great moment. Yet the School Book Society receives a grant of Rupees 500 a month from Government for the express purpose of selling good cheap school books.

“Some caution and foresight are necessary, lest in our well intentioned zeal and anxious endeavours to render this great Empire wealthy, and its people prosperous and happy, we do not deluge the country with a large class of discontented men, dissatisfied with their position in society and in life, and disgusted with the world, themselves, and the Government that took them from what they were, to make them what they are. This would be to fill our bazars with socialism, and red republicanism instead of contentment and prosperity, and for the Government to incur a responsiblyresponsibility [sic] it is alarming even to think of."

In 1860, Sir, when Governor of Bengal, submitted the following plan:—

"“One of the matters particularly urged on the attention of the Government of India in Lord Stanley’s Despatch of April 1859 was the extension of Vernacular Education among the masses of the population, and Local Governments were desired to take it into careful consideration and report fully on the means, respectively, at their disposal for promoting the object in view, having regard to the peculiar circumstances of each Province or Presidency.

“It was in the first place observed that the agricultural peasantry of Bengal was the class to be acted upon; and secondly, that the instruction to be imparted to it should range no higher, at least for some time to come, than that which was afforded by the indigenous Private Schools already in existence in large numbers over the whole country. The object, therefore, should be to bring them under such influences as would improve and elevate their character and efficiency, and ultimately confirm and extend their usefulness.

“When the requisite number of Schools shall have been selected, the Inspector must endeavour to make the gurus, or the proprietors and supporters of the Schools, who are often talookdars and middlemen, to submit to periodical inspection.

“Books should be supplied to the Schools at a very low price. These books should contain, in a compact form, all that has hitherto been taught at such places by dictation, namely Arithmetic, Agricultural and Commercial Accounts, Forms of Agreements, Quittances of Rents, Bonds, and even models of the complimentary or formal letters which inferiors constantly address to their superiors. The Lieutenant-Governor does not feel warranted in despising this last kind of instruction, because it is not conveyed to the son of an English peasant. It is sufficient for our purposes that such instruction has been imparted in India for generations. The above course will enable any lad of ordinary intelligence to read and write correctly, and to see that he is not cheated in his accounts by the mahajun or the agent of the zemindar.

“He would be offered a reward in hard cash, within a limited amount at the discretion of the Inspector, and on the latter being satisfied that the state of the School justified the encouragement, which should not exceed half the schooling fees realised by the guru from his pupils; and assuming the fees at Rupees five per mensem, the guru would be paid on an average Rupees 30 per annum by Government.

“‘If the time should ever arrive when we could show one thousand Village Schools to a district, aided by Government, and affording the agriculturists a simple and practical education commensurate with their wants, the State, in such a case, might be held to have fairly done its duty by a neglected portion of its subjects.’”"


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24 Mr. Woodrow suggested a mode of paying by results, thus:—

"“Nothing for boys who cannot read, spell, and write at dictation words of three letters and say the multiplication table up to 10 times 10,

“One pice monthly for every boy who can read and explain the meaning of words and sentences in ‘Infant Teacher’ Part 3rd, and can do easy sums in addition, subtraction, multiplication.

“One anna monthly for every boy up to ‘Infant Teacher’ Part 4th, and the four simple rules of Arithmetic.

“Two annas monthly for every boy who can read and write without gross blunders, copy a map, and has learned some accounts.

“Four annas monthly for every boy who completes the highest course prescribed for indigenous schools.”"

The last phase of the Vernacular Education question appeared in the Supplement to the Bengal Government Gazette for May 20th, 1868. In a correspondence between the Governments of Bengal and India relating to Elementary Vernacular Education for the lower classes, the main question being as to the mode of levying a local Educational Cess, the Lieutenant-Governor of Bengal expressed an opinion in favor of an increase to the salt tax. The Director of Public Instruction estimated the cost:—

"“Assuming the population of Bengal at 40,000,000, I calculate that with the machinery of this plan we shall be able to provide Elementary Schools for the whole country at the rate of one School to each 3,000 of the population at an annual charge of the State not much exceeding 20 lakhs of Rupees, or £200,000, including expenditure for inspection and administration; and I should hardly suppose that the Finance Department will consider this an excessive outlay for such a purpose, especially when it is informed that for England and Wales, with a population of 20,063,793, the expenditure from the Parliamentary grant, during the year ending 31st March 1866, amounted to no less a sum than £378,003 for day-scholars in Elementary Schools alone, exclusive of all charges for administration and inspection.”"

Mr., the Secretary to the Government of India, Home Department, argues in favor of this expense being met by the land:—

“Consequently, as was originally the case in Bengal, so in the North-Western Provinces, the proportion of the rent taken as revenue by Government has been fixed on calculations into which the element of a provision for the general education of the people did not enter.

“There is no part of India in which the Imperial revenue can with less fairness be called upon to contribute to local objects.

“Whatever may have been in reality the share of the income of the proprietors of the soil which the permanent settlement originally gave to Government, there can be no doubt that it is now far less than in other Provinces; for, while the area under cultivation has enormously increased (perhaps, on an average, doubled,) on the other hand, the prices of produce have undoubtedly risen in even a still greater ratio, so that the gross assets of the proprietors have probably increased four or five fold, if not more, and the amount of the Imperial demand remaining stationary, its incidence has proportionably diminished.”

“The main burden, therefore, of Vernacular Education in Bengal should, the Governor General in Council thinks, fall, not on the Imperial revenues, but, as elsewhere, on the proprietors of the land.

“In the permanently-settled Districts of the Benares Division of the North-Western Provinces (between which and the permanently-settled Districts of the Lower Provinces the most complete analogy exists), the proprietors of the soil have voluntarily agreed to the imposition of an educational cess, on condition that Government should give an equal amount.


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 Rh Mrs. Brown. “Just the loveliest doll I’ve seen in years. I must get one like it for Ulvina. Won’t Clarisse be perfectly enchanted?”

“Yes,” answered Mrs. Jones, “and then she’ll have all the fun arranging the dresses. Children love that so much. Look, there are three little dresses with the doll, aren’t they cute? All cut out and ready to stitch together.”

“Oh, how perfectly lovely!” exclaimed Mrs. Brown. “I think the mauve one would suit the doll best, don’t you, with such golden hair? Only don’t you think it would make it much nicer to turn back the collar, so, and to put a little band—so?”

“What a good idea!” said Mrs. Jones. “Do let’s try it. Just wait, I’ll get a needle in a minute. I’ll tell Clarisse that Santa Claus sewed it himself. The child believes in Santa Claus absolutely.”

And half and hour later Mrs. Jones and Mrs. Brown were so busy stitching dolls’ clothes that they could not hear the roaring of the little train up and down the dining table, and had no idea what the four children were doing.

Nor did the children miss their mothers.

“Dandy, aren’t they?” Edwin Jones was saying to little Willie Brown, as they sat in Edwin’s bedroom. “A hundred in a box, with

title: Page:Frenzied Fiction.djvu/161


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248 eagerness and tension as soon as the door had closed behind him. "What on earth then do you suppose he has come back to do—?" To which he added while his hostess's gesture impatiently disclaimed conjecture: "Because when a fellow really finds himself the centre of a cyclone!"

"Isn't it just at the centre," she interrupted, "that you keep remarkably still, and only in the suburbs that you feel the rage? I count on dear Theign's doing nothing in the least foolish!"

"Ah, but he can't have chucked everything for nothing," Lord John sharply returned; "and wherever you place him in the rumpus he can't but meet somehow, hang it, such an assault on his character as a great nobleman and good citizen."

"It's his luck to have become with the public of the newspapers the scapegoat-in-chief: for the sins, so-called, of a lot of people!" Lady Sandgate inconclusively sighed.

"Yes," Lord John concluded for her, "the mercenary millions on whose traffic in their trumpery values—when they're so lucky as to have any!—this isn't a patch!"


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Rh "Oh, there are cases and cases: situations and responsibilities so intensely differ!"—that appeared on the whole, for her ladyship, the moral to be gathered.

"Of course everything differs, all round, from everything," Lord John went on; "and who in the world knows anything of his own case but the victim of circumstances exposing himself, for the highest and purest motives, to be literally torn to pieces?"

"Well," said Lady Sandgate as, in her strained suspense, she freshly consulted her bracelet watch, "I hope he isn't already torn—if you tell me you've been to Kitty's."

"Oh, he was all right so far: he had arrived and gone out again," the young man explained, "as Lady Imber hadn't been at home."

"Ah cool Kitty!" his hostess sighed again—but diverted, as she spoke, by the reappearance of her butler, this time positively preceding Lord Theign, whom she met, when he presently stood before her, his garb of travel exchanged for consummate afternoon dress, with yearning tenderness and compassionate curiosity. "At last, dearest friend—what a joy! But with Kitty not at home to receive you?"


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 Rh cork tips, and see, an amber mouthpiece that fits into a little case at the side. Good present for Dad, eh?”

“Fine!” said Willie appreciatively. “I’m giving Father cigars.”

“I know, I thought of cigars too. Men always like cigars and cigarettes. You can’t go wrong on them. Say, would you like to try one or two of these cigarettes? We can take them from the bottom. You’ll like them, they’re Russian—away ahead of Egyptian.”

“Thanks,” answered Willie. “I’d like one immensely. I only started smoking last spring—on my twelfth birthday. I think a feller’s a fool to begin smoking cigarettes too soon, don’t you? It stunts him. I waited till I was twelve.”

“Me too,” said Edwin, as they lighted their cigarettes. “In fact, I wouldn’t buy them now if it weren’t for Dad. I simply had to give him something from Santa Claus. He believes in Santa Claus absolutely, you know.”

And, while this was going on, Clarisse was showing little Ulvina the absolutely lovely little bridge set that she got for her mother.

“Aren’t these markers perfectly charming?” said Ulvina. “And don’t you love this little Dutch design—or is it Flemish, darling?”

“Dutch,” said Clarisse. “Isn’t it quaint? And aren’t these the dearest little things, for

title: Page:Frenzied Fiction.djvu/162


text:
Holt v. Hobbs

Section 3 of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) provides that "[n]o government shall impose a substantial burden on the religious exercise" of an institutionalized person unless the government demonstrates that the burden "is the least restrictive means of furthering [a] compelling governmental interest." 42 U.S.C. § 2000cc-1(a).

Petitioner is an Arkansas inmate and devout Muslim who wishes to grow a ½-inch beard in accordance with his religious beliefs. Respondent Arkansas Department of Correction (Department) prohibits its prisoners from growing beards, with the single exception that inmates with diagnosed skin conditions may grow ¼-inch beards. Petitioner sought an exemption on religious grounds and, although he believes that his faith requires him not to trim his beard at all, he proposed a compromise under which he would be allowed to maintain a ½-inch beard. Prison officials denied his request, and petitioner sued in Federal District Court. At an evidentiary hearing before a Magistrate Judge, Department witnesses testified that beards compromised prison safety because they could be used to hide contraband and because an inmate could quickly shave his beard to disguise his identity. The Magistrate Judge recommended dismissing petitioner's complaint, emphasizing that prison officials are entitled to deference on security matters and that the prison permitted petitioner to exercise his religion in other ways. The District Court adopted the recommendation in full, and the Eighth Circuit affirmed, holding that the Department had satisfied its burden of showing that the grooming policy was the least restrictive means of furthering its compelling security interests, and reiterating that courts should defer to prison officials on matters of security.

Held: The Department's grooming policy violates RLUIPA insofar as it prevents petitioner from growing a ½-inch beard in accordance with his religious beliefs. Pp. 360–370.

(a) Under RLUIPA, the challenging party bears the initial burden of proving that his religious exercise is grounded in a sincerely held religious belief, see Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 717, n.28, and that the government's action substantially burdens his reli- [p353] gious exercise. Here, petitioner's sincerity is not in dispute, and he easily satisfies the second obligation. The Department's policy forces him to choose between "engag[ing] in conduct that seriously violates [his] religious belie[f]," id., at 720, or contravening the grooming policy and risking disciplinary action. In reaching the opposite conclusion, the District Court misunderstood the analysis that RLUIPA demands. First, the District Court erred by concluding that the grooming policy did not substantially burden petitioner's religious exercise because he could practice his religion in other ways. Second, the District Court erroneously suggested that the burden on petitioner's religious exercise was slight because petitioner testified that his religion would "credit" him for attempting to follow his religious beliefs, even if that attempt proved unsuccessful. RLUIPA, however, applies to religious exercise regardless of whether it is "compelled." § 2000cc-5(7)(A). Finally, the District Court improperly relied on petitioner's testimony that not all Muslims believe that men must grow beards. Even if petitioner's belief were idiosyncratic, RLUIPA's guarantees are "not limited to beliefs which are shared by all of the members of a religious sect." Thomas v. ''Review Bd. of Indiana Employment Security Div.'', 450 U.S. 707, 715–716. Pp. 360–362.

(b) Once the challenging party satisfies his burden, the burden shifts to the government to show that substantially burdening the religious exercise of the "particular claimant" is "the least restrictive means of furthering [a] compelling governmental interest." Hobby Lobby, supra, at 726; § 2000cc-1(a). The Department fails to show that enforcing its beard prohibition against petitioner furthers its compelling interests in preventing prisoners from hiding contraband and disguising their identities. Pp. 362–367.

(i) While the Department has a compelling interest in regulating contraband, its argument that this interest is compromised by allowing an inmate to grow a ½-inch beard is unavailing, especially given the difficulty of hiding contraband in such a short beard and the lack of a corresponding policy regulating the length of hair on the head. RLUIPA does not permit the unquestioning deference required to accept the Department's assessment. See Gonzales v. O Centro Espírita Beneficente Uniõ do Vegetal, 546 U.S. 418, 434. Even if the Department could show that denying petitioner a ½-inch beard furthers its interest in rooting out contraband, it would still have to show that its policy is the least restrictive means of furthering that interest, a standard that is "exceptionally demanding" and requires the government to "sho[w] that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting part[y]." Hobby Lobby, supra, at 728. Here, the Department fails to establish that its security concerns cannot be satisfied by simply searching a ½-inch beard. Pp. 363–365.

[p354] (ii) Even if the Department's grooming policy furthers its compelling interest in prisoner identification, its policy still violates RLUIPA as applied in the present circumstances. As petitioner argues, requiring inmates to be photographed both with and without beards and then periodically thereafter is a less restrictive means of solving the Department's identification concerns. The Department fails to show why its prison system is so different from the many institutions that allow facial hair that the dual-photo method cannot be employed at its institutions. It also fails to show why the security risk presented by a prisoner shaving a ½-inch beard is so different from the risk of a prisoner shaving a mustache, head hair, or ¼-inch beard. Pp. 365–367.

(c) In addition to the Department's failure to prove that petitioner's proposed alternatives would not sufficiently serve its security interests, the Department also fails to adequately explain the substantial underinclusiveness of its policy, since it permits ¼-inch beards for prisoners with medical conditions and more than one-half inch of hair on the head. Its failure to pursue its proffered objectives with regard to such "analogous nonreligious conduct" suggests that its interests "could be achieved by narrower ordinances that burdened religion to a far lesser degree." Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 546. Nor does the Department explain why the vast majority of States and the Federal Government can permit inmates to grow ½-inch beards, either for any reason or for religious reasons, but it cannot. Such evidence requires a prison, at a minimum, to offer persuasive reasons why it believes it must take a different course. See Procunier v. Martinez, 416 U.S. 396, 414, n.14. Pp. 367–369.

509 Fed. Appx. 561, reversed and remanded.

ALITO, J., delivered the opinion for a unanimous Court. GINSBURG, J., filed a concurring opinion, in which SOTOMAYOR, J., joined, post, p. 370. SOTOMAYOR, J., filed a concurring opinion, post, p. 370.

Douglas Laycock argued the cause for petitioner. With him on the briefs were Eric C. Rassbach, Luke W. Goodrich, Mark L. Rienzi, Hannah C. Smith, and Asma T. Uddin.

Anthony A. Yang argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Verrilli, Acting Assistant Attorney General Samuels, Deputy Solicitor General Gershengorn, Sarah E. Harrington, Mark L. Gross, and April J. Anderson.

David A. Curran, Deputy Attorney General of Arkansas, argued the cause for respondents. With him on the brief [p355] were Dustin McDaniel, Attorney General, and Christine A. Cryer, Senior Assistant Attorney General.

 * Briefs of amici curiae urging reversal were fled for the American Jewish Committee et al. by Marc D. Stern, Adam S. Lurie, and Samantha A. Dreilinger; for Americans United for Separation of Church and State by Evan M. Tager, Richard B. Katskee, James F. Tierney, Ayesha N. Khan, and Gregory M. Lipper; for the Anti-Defamation League et al. by Derek L. Shaffer; for the International Mission Board of the Southern Baptist Convention et al. by Brian R. Matsui, Derek Gaubatz, and Joel C. Haims; for Islamic Law Scholars by Christopher C. Lund; for the National Congress of American Indians et al. by Joel West Williams, Richard A. Guest, Steven C. Moore, and Gabriel S. Galanda; for the National Jewish Commission on Law and Public Affairs et al. by Nathan Lewin, Alyza D. Lewin, and Dennis Rapps; for Prison Fellowship Ministries et al. by Roger G. Brooks; for The Rutherford Institute by John W. Whitehead, Anand Agneshwar, and Anna K. Thompson; for the Sikh Coalition and Muslim Public Affairs Council by Mark E. Haddad and Collin P. Wedel; for the Women's Prison Association by James A. Sonne; for John Clark et al. by Jonathan L. Abram, Andrea W. Trento, Steven R. Shapiro, David Fathi, Daniel Mach, and Randall Marshall; for Jesse Wiese et al. by Matthew A. Fitzgerald; for Former Prison Wardens by Carolyn F. Corwin and Stephanie Hall Barclay; and for Ronald L. Akers et al. by Kelly Shackelford and Jeffrey C. Mateer.

A brief of amici curiae urging affrmance was fled for the State of Alabama et al. by Luther Strange, Attorney General of Alabama, Andrew L. Brasher, Solicitor General, and Megan A. Kirkpatrick, Assistant Solicitor General, and by the Attorneys General for their respective States as follows: Micheal C. Geraghty of Alaska, Tom Horne of Arizona, Sam Olens of Georgia, David Louie of Hawaii, Greg Zoeller of Indiana, Derek Schmidt of Kansas, Jim Hood of Mississippi, Tim Fox of Montana, Jon Bruning of Nebraska, Wayne Stenehjem of North Dakota, Scott Pruitt of Oklahoma, Kathleen G. Kane of Pennsylvania, Alan Wilson of South Carolina, Marty J. Jackley of South Dakota, Greg Abbott of Texas, Patrick Morrisey of West Virginia, and Peter K. Michael of Wyoming.

David A. Cortman, Kevin H. Theriot, and Erik W. Stanley fled a brief for Alliance Defending Freedom as amicus curiae.

title: Holt v. Hobbs


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250 That young woman's parent made light of it for the indulged creature's sake. "Oh I knew my Kitty! I dressed and I find her at five-thirty." To which he added as he only took in further, without expression, Lord John: "But Bender, who came there before my arrival—he hasn't tried for me here?"

It was a point on which Lord John himself could at least be expressive. "I met him at the club at luncheon; he had had your letter—but for which chance, my dear man, I should have known nothing. You'll see him all right at this house; but I'm glad, if I may say so, Theign," the speaker pursued with some emphasis—"I'm glad, you know, to get hold of you first."

Lord Theign seemed about to ask for the meaning of this remark, but his other companion's apprehension had already overflowed. "You haven't come back, have you—to whatever it may be!—for trouble of any sort with Breckenridge?"

His lordship transferred his penetration to this fair friend. "Have you become so intensely absorbed—these remarkable days!—in 'Breckenridge'?"


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Rh She felt the shadow, you would have seen, of his claimed right, or at least privilege, of search—yet easily, after an instant, emerged clear. "I've thought and dreamt but of you—suspicious man!—in proportion as the clamour has spread; and Mr. Bender meanwhile, if you want to know, hasn't been near me once!"

Lord John came in a manner, and however unconsciously, to her aid. "You'd have seen, if he had been, what's the matter with him, I think—and what perhaps Theign has seen from his own letter: since," he went on to his fellow-visitor, "I understood him a week ago to have been much taken up with writing you."

Lord Theign received this without comment, only again with an air of expertly sounding the speaker; after which he gave himself afresh for a moment to Lady Sandgate. "I've not come home for any clamour, as you surely know me well enough to believe; or to notice for a minute the cheapest insolence and aggression—which frankly scarce reached me out there; or which, so far as it did, I was daily washed clean of by those blest waters. I returned on Mr. Bender's letter," he then vouchsafed to


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252 Lord John—"three extraordinarily vulgar pages about the egregious Pappendick!"

"About his having suddenly turned up in person, yes, and, as Breckenridge says, marked the picture down?"—the young man was clearly all-knowing. "That has of course weighed on Bender—being confirmed apparently, on the whole, by the drift of public opinion."

Lord Theign took, on this, with a frank show of reaction from some of his friend's terms, a sharp turn off; he even ironically indicated the babbler or at least the blunderer in question to Lady Sandgate. "He too has known me so long, and he comes here to talk to me of 'the drift of public opinion'!" After which he quite charged at his vain informant. "Am I to tell you again that I snap my fingers at the drift of public opinion?—which is but another name for the chatter of all the fools one doesn't know, in addition to all those (and plenty of 'em!) one damnably does."

Lady Sandgate, by a turn of the hand, dropped oil from her golden cruse. "Ah, you did that, in your own grand way, before you went abroad!"


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Rh "I don't speak of the matter, my dear man, in the light of its effect on you," Lord John importantly explained—"but in the light of its effect on Bender; who so consumedly wants the picture, if he is to have it, to be a Mantovano, but seems unable to get it taken at last for anything but the fine old Moretto that of course it has always been."

Lord Theign, in growing disgust at the whole beastly complication, betrayed more and more the odd pitch of the temper that had abruptly restored him with such incalculable weight to the scene of action. "Well, isn't a fine old Moretto good enough for him, confound him?"

It pulled up not a little Lord John, who yet made his point. "A fine old Moretto, you know, was exactly what he declined at Dedborough—for its comparative, strictly comparative, insignificance; and he only thought of the picture when the wind began to rise for the enormous rarity"

"That that mendacious young cad who has bamboozled Grace," Lord Theign broke in, "tried to befool us, for his beggarly reasons, into claiming for it?"


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254 Lady Sandgate renewed her mild influence. "Ah, the knowing people haven't had their last word—the possible Mantovano isn't exploded yet!

Her noble friend, however, declined the offered spell. "I've had enough of the knowing people—the knowing people are serpents! My picture's to take or to leave—and it's what I've come back, if you please, John, to say to your man to his face."

This declaration had a report as sharp and almost as multiplied as the successive cracks of a discharged revolver; yet when the light smoke cleared Lady Sandgate at least was still left standing and smiling. "Yes, why in mercy's name can't he choose which?—and why does he write him, dreadful Breckenridge, such tiresome argumentative letters?"

Lord John took up her idea as with the air of something that had been working in him rather vehemently, though under due caution too, as a consequence of this exchange, during which he had apprehensively watched his elder. "I don't think I quite see how, my dear Theign, the poor chap's letter was so offensive."

In that case his dear Theign could tell him.


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Rh "Because it was a tissue of expressions that may pass current—over counters and in awful newspapers—in his extraordinary world or country, but that I decline to take time to puzzle out here."

"If he didn't make himself understood," Lord John took leave to laugh, "it must indeed have been an unusual production for Bender."

"Oh, I often, with the wild beauty, if you will, of so many of his turns, haven't a notion," Lady Sandgate confessed with an equal gaiety, "of what he's talking about."

"I think I never miss his weird sense," her younger guest again loyally contended—"and in fact as a general thing I rather like it!"

"I happen to like nothing that I don't enjoy," Lord Theign rejoined with some asperity—"and so far as I do follow the fellow he assumes on my part an interest in his expenditure of purchase-money that I neither feel nor pretend to. He doesn't want—by what I spell out—the picture he refused at Dedborough; he may possibly want—if one reads it so—the picture on view in Bond Street; and he yet appears to make, with great emphasis,


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256 the stupid ambiguous point that these two 'articles' (the greatest of Morettos an 'article'!) haven't been 'by now' proved different: as if I engaged with him that I myself would so prove them!"

Lord John indulged in a pause—but also in a suggestion. "He must allude to your hoping—when you allowed us to place the picture with Mackintosh—that it would show to all London in the most precious light conceivable."

"Well, if it hasn't so shown"—and Lord Theign stared as if mystified—"what in the world's the meaning of this preposterous racket?"

"The racket is largely," his young friend explained, "the vociferation of the people who contradict each other about it."

On which their hostess sought to enliven the gravity of the question. "Some—yes—shouting on the house-tops that's a Mantovano of the Mantovanos, and others shrieking back at them that they're donkeys if not criminals."

"He may take it for whatever he likes," said Lord Theign, heedless of these contributions, "he may father it on Michael Angelo


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Rh himself if he'll but clear out with it and let me alone!"

"What he'd like to take it for," Lord John at this point saw his way to remark, "is something in the nature of a Hundred Thousand."

"A Hundred Thousand?" cried his astonished friend.

"Quite, I daresay, a Hundred Thousand"—the young man enjoyed clearly handling even by the lips so round a sum.

Lady Sandgate disclaimed however with agility any appearance of having gaped. "Why, haven't you yet realised, Theign, that those are the American figures?"

His lordship looked at her fixedly and then did the same by Lord John, after which he waited a little. "I've nothing to do with the American figures—which seem to me, if you press me, you know, quite intolerably vulgar."

"Well, I'd be as vulgar as anybody for a Hundred Thousand!" Lady Sandgate hastened to proclaim.

"Didn't he let us know at Dedborough," Lord John asked of the master of that seat, "that he had no use, as he said, for lower values?"


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 Rh putting the money in when you play. I needn’t have got them with it—they’d have sold the rest separately—but I think it’s too utterly slow playing without money, don’t you?”

“Oh, abominable,” shuddered Ulvina. “But your mamma never plays for money, does she?”

“Mamma! Oh, gracious, no. Mamma’s far too slow for that. But I shall tell her that Santa Claus insisted on putting in the little money boxes.”

“I suppose she believes in Santa Claus, just as my mamma does.”

“Oh, absolutely,” said Clarisse, and added, “What if we play a little game! With a double dummy, the French way, or Norwegian Skat, if you like. That only needs two.”

“All right,” agreed Ulvina, and in a few minutes they were deep in a game of cards with a little pile of pocket money beside them.

About half an hour later, all the members of the two families were again in the drawing-room. But of course nobody said anything about the presents. In any case they were all too busy looking at the beautiful big Bible, with maps in it, that the Joneses had brought to give to Grandfather. They all agreed that, with the help of it, Grandfather could hunt

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258 "I've heard him remark myself," said their companion, rising to the monstrous memory, "that he wouldn't take a cheap picture—even though a 'handsome' one—as a present."

"And does he call the thing round the corner a cheap picture?" the proprietor of the work demanded.

Lord John threw up his arms with a grin of impatience. "All he wants to do, don't you see? is to prevent your making it one!"

Lord Theign glared at this imputation to him of a low ductility. "I offered the thing, as it was, at an estimate worthy of it and of me."

"My dear reckless friend," his young adviser protested, "you named no figure at all when it came to the point!"

"It didn't come to the point! Nothing came to the point but that I put a Moretto on view; as a thing, yes, perfectly"—Lord Theign accepted the reminding gesture—"on which a rich American had an eye and in which he had, so to speak, an interest. That was what I wanted, and so we left it—parting each of us ready but neither of us bound."

"Ah, Mr. Bender's bound, as he'd say,"


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Rh Lady Sandgate interposed—"'bound' to make you swallow the enormous luscious plum that your appetite so morbidly rejects!"

"My appetite, as morbid as you like"—her old friend had shrewdly turned on her—"is my own affair, and if the fellow must deal in enormities I warn him to carry them elsewhere!"

Lord John, plainly, by this time, was quite exasperated at the absurdity of him. "But how can't you see that it's only a plum, as she says, for a plum and an eye for an eye—since the picture itself, with this huge ventilation, is now quite a different affair?"

"How the deuce a different affair when just what the man himself confesses is that, in spite of all the chatter of the prigs and pedants, there's no really established ground for treating it as anything but the same?" On which, as having so unanswerably spoken, Lord Theign shook himself free again, in his high petulance, and moved restlessly to where the passage to the other room appeared to offer his nerves an issue; all moreover to the effect of suggesting to us that something still other than what he had said might meanwhile work in him behind


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260 and beneath that quantity. The spectators of his trouble watched him, for the time, in uncertainty and with a mute but associated comment on the perversity and oddity he had so suddenly developed; Lord John giving a shrug of almost bored despair and Lady Sandgate signalling caution and tact for their action by a finger flourished to her lips, and in fact at once proceeding to apply these arts. The subject of her attention had still remained as in worried thought; he had even mechanically taken up a book from a table—which he then, after an absent glance at it, tossed down.

"You're so detached from reality, you adorable dreamer," she began—"and unless you stick to that you might as well have done nothing. What you call the pedantry and priggishness and all the rest of it is exactly what poor Breckenridge asked almost on his knees, wonderful man, to be allowed to pay you for; since even if the meddlers and chatterers haven't settled anything for those who know—though which of the elect themselves after all does seem to know?—it's a great service rendered him to have started such a hare to run!"


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Rh Lord John took freedom to throw off very much the same idea. "Certainly his connection with the whole question and agitation makes no end for his glory."

It didn't, that remark, bring their friend back to him, but it at least made his indifference flash with derision. "His 'glory'—Mr. Bender's glory? Why, they quite universally loathe him—judging by the stuff they print!"

"Oh, here—as a corrupter of our morals and a promoter of our decay, even though so many are flat on their faces to him—yes! But it's another affair over there where the eagle screams like a thousand steam-whistles and the newspapers flap like the leaves of the forest: there he'll be, if you'll only let him, the biggest thing going; since sound, in that air, seems to mean size, and size to be all that counts. If he said of the thing, as you recognise," Lord John went on, "'It's going to be a Mantovano,' why you can bet your life that it is—that it has got to be some kind of a one."

His fellow-guest, at this, drew nearer again, irritated, you would have been sure, by the unconscious infelicity of the pair—worked up to something quite openly wilful and


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262 passionate. "No kind of a furious flaunting one, under my patronage, that I can prevent, my boy! The Dedborough picture in the market—owing to horrid little circumstances that regard myself alone—is the Dedborough picture, at a decent, sufficient, civilised Dedborough price, and nothing else whatever; which I beg you will take as my last word on the subject."

Lord John, trying whether he could take it, momentarily mingled his hushed state with that of their hostess, to whom he addressed a helpless look; after which, however, he appeared to find that he could only reassert himself. "May I nevertheless reply that I think you'll not be able to prevent anything?—since the discussed object will completely escape your control in New York!"

"And almost any discussed object"—Lady Sandgate rose to the occasion also—"is in New York, by what one hears, easily worth a Hundred Thousand!"

Lord Theign looked from one of them to the other. "I sell the man a Hundred Thousand worth of swagger and advertisement, and of fraudulent swagger and objectionable advertisement at that?"


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Rh "Well"—Lord John was but briefly baffled—"when the picture's his you can't help its doing what it can and what it will for him anywhere!"

"Then it isn't his yet," the elder man retorted—"and I promise you never will be if he has sent you to me with his big drum!"

Lady Sandgate turned sadly on this to her associate in patience, as if the case were now really beyond them. "Yes, how indeed can it ever become his if Theign simply won't let him pay for it?"

Her question was unanswerable. "It's the first time in all my life I've known a man feel insulted, in such a piece of business, by happening not to be, in the usual way, more or less swindled!"

"Theign is unable to take it in," her ladyship explained, "that—as I've heard it said of all these money-monsters of the new type—Bender simply can't afford not to be cited and celebrated as the biggest buyer who ever lived."

"Ah, cited and celebrated at my expense—say it at once and have it over, that I may enjoy what you all want to do to me!"

"The dear man's inimitable—at his '


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264 '!" It was more than Lord John could bear as he fairly flung himself off in his derisive impotence and addressed his wail to Lady Sandgate.

"Yes, at my expense is exactly what I mean," Lord Theign asseverated—"at the expense of my modest claim to regulate my behaviour by my own standards. There you perfectly are about the man, and it's precisely what I say—that he's to hustle and harry me because he's a money-monster: which I never for a moment dreamed of, please understand, when I let you, John, thrust him at me as a pecuniary resource at Dedborough. I didn't put my property on view that he might blow about it!"

"No, if you like," Lady Sandgate returned; "but you certainly didn't so arrange"—she seemed to think her point somehow would help—"that you might blow about it yourself!"

"Nobody wants to 'blow,'" Lord John more stoutly interposed, "either hot or cold, I take it; but I really don't see the harm of Bender's liking to be known for the scale of his transactions—actual or merely imputed even, if you will; since that scale is really so magnificent."


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