Mary Riggs v. Airbus Helicopters, Inc. ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARY RIGGS, as Personal No. 18-16396
Representative of the ESTATE OF
JONATHAN NEIL UDALL, for the D.C. No.
benefit of the ESTATE OF JONATHAN 2:18-cv-00912-
NEIL UDALL, and PHILIP AND JCM-GWF
MARLENE UDALL as Next of Kin and
Natural Parents of JONATHAN NEIL
UDALL, deceased, OPINION
Plaintiff-Appellee,
v.
AIRBUS HELICOPTERS, INC.,
Defendant-Appellant,
v.
MATTHEW HECKER; DANIEL
FRIEDMAN; BRENDA HALVORSON;
GEOFFREY EDLUND; ELLING B.
HALVORSON; JOHN BECKER; ELLING
KENT HALVORSON; LON A.
HALVORSON; SCOTT BOOTH;
PAPILLON AIRWAYS, INC., DBA
Papillon Grand Canyon Helicopters;
XEBEC LLC,
Defendants-Appellees.
2 RIGGS V. AIRBUS HELICOPTERS
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted February 14, 2019
San Francisco, California
Filed September 20, 2019
Before: Mary M. Schroeder, Diarmuid F. O’Scannlain,
and Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Rawlinson;
Dissent by Judge O’Scannlain
SUMMARY*
Federal Officer Removal Statute
The panel affirmed the district court’s order granting
motions to remand to state court a case that had been
removed to federal court pursuant to 28 U.S.C. § 1442(a)(1).
Following a fatal helicopter crash, plaintiffs filed suit in
Nevada state court against the owners of the helicopter and
the manufacturer, Airbus Helicopters, Inc. Airbus removed
the action to federal court on the basis of § 1442(a)(1), which
permits removal of an action against “any officer (or any
person acting under that officer) of the United States or of
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
RIGGS V. AIRBUS HELICOPTERS 3
any agency thereof, in an official or individual capacity, for
or relating to any act under color of such office.”
Federal Aviation Administration regulations set forth
standards for certification of helicopters. Pursuant to
49 U.S.C. § 44702(d)(1), the FAA delegated to Airbus the
authority to issue Supplemental Certificates for design
changes to type-certified aircraft.
Agreeing generally with the Seventh Circuit, and applying
Watson v. Philip Morris Cos., 551 U.S. 142 (2007), the panel
held that Airbus failed to meet the “acting under” requirement
of § 1442(a)(1) because, in issuing Supplemental Certificates
pursuant to its FAA delegation, Airbus was merely
complying with regulatory standards. The panel concluded
that an aircraft manufacturer does not act under a federal
officer when it exercises designated authority to certify
compliance with governing federal regulations.
Dissenting, Judge O’Scannlain wrote that Airbus acted
under a federal agency because it undertook duties on the
FAA’s behalf, and the majority’s contrary holding
misunderstood the FAA’s regulatory regime and misapplied
Watson.
COUNSEL
Carter G. Phillips (argued), Sidley Austin LLP, Washington,
D.C.; Yvette Ostolaza and Robert S. Velevis, Sidley Austin
LLP, Dallas, Texas; David R. Carpenter, Sidley Austin LLP,
Los Angeles, California; James J. Pisanelli and Todd L. Bice,
Pisanelli Bice PLLC, Las Vegas, Nevada; for Defendant-
Appellant.
4 RIGGS V. AIRBUS HELICOPTERS
Gary C. Robb (argued) and Anita Porte Robb, Robb & Robb
LLC, Kansas City, Missouri; Lawrence J. Smith, Bertoldo
Baker Carter & Smith, Las Vegas, Nevada; for Plaintiffs-
Appellees.
Patrick J. Kearns (argued), Wilson Elser Moskowitz Edelman
& Dicker LLP, San Diego, California, for Defendants-
Appellees.
Lauren L. Haertlein, General Aviation Manufacturers
Association, Washington, D.C., for Amicus Curiae General
Aviation Manufacturers Association.
OPINION
RAWLINSON, Circuit Judge:
Appellant-Defendant Airbus Helicopters, Inc. (AHI)
appeals the district court’s order granting motions to remand
to state court. AHI contended that it properly removed this
case to federal district court pursuant to 28 U.S.C.
§ 1442(a)(1) (§ 1442(a)(1)). According to AHI, the district
court erroneously determined that AHI did not satisfy the
“acting under” requirement of § 1442(a)(1). Reviewing de
novo, we affirm the judgment of the district court.
I. BACKGROUND
In February, 2018, John Udall, a resident of the United
Kingdom, was killed in a helicopter crash while touring the
Grand Canyon. The helicopter (Crashed Helicopter) was
RIGGS V. AIRBUS HELICOPTERS 5
owned and operated by several of the Hecker Defendants1 and
manufactured by AHI.
Plaintiff-Appellee Mary Riggs (Riggs) filed this action in
Nevada state court against AHI and the Hecker Defendants,
alleging that the Crashed Helicopter was defectively designed
because the fuel tank was not crash-resistant, and could not
withstand an impact of a minimal or moderate nature without
bursting into flames and engulfing the passenger
compartment.2
AHI removed the case to federal district court, asserting
§ 1442(a)(1) as the basis for removal. That provision permits
removal to federal court of an action against “any officer (or
any person acting under that officer) of the United States or
of any agency thereof, in an official or individual capacity,
for or relating to any act under color of such office.”
28 U.S.C. § 1442(a)(1). Riggs and the Hecker Defendants
separately moved to remand the case to Nevada state court,
on the basis that AHI did not meet the requirements of
§ 1442(a)(1).
1
The named Hecker Defendants are: Matthew Hecker, Daniel
Friedman, Brenda Halvorson, Geoffrey Edlund, Elling B. Halvorson, John
Becker, Elling Kent Halvorson, Lon A. Halvorson, Scott Booth, and
Papillon Airways, Inc., DBA Papillon Grand Canyon Helicopters, and
Xebec LLC.
2
In this appeal, the Hecker Defendants are Defendants-Appellees
whose interests are aligned with the interests of Riggs.
6 RIGGS V. AIRBUS HELICOPTERS
While the motions to remand were pending before the
district court, AHI moved to dismiss the lawsuit pursuant to
Federal Rule of Civil Procedure 12(b)(2) and (b)(6). 3
The district court granted Hecker and Riggs’s motions to
remand. Noting that we have not directly addressed
§ 1442(a)(1) removal based on an FAA delegation, the
district court relied primarily on the Seventh Circuit decision
of Lu Junhong v. Boeing Co., 792 F.3d 805 (7th Cir. 2015)
addressing an almost identical situation. After applying the
reasoning set forth in Lu Junhong, the district court ruled that
AHI failed to meet the “acting under” requirement of
§ 1442(a)(1) because AHI’s activities “pursuant to its
[Federal Aviation Administration] delegation are rule
compliance rather than rule making.”
II. STANDARD OF REVIEW
“We review de novo a district court’s decision to remand
a removed case . . .” Corona-Contreras v. Gruel, 857 F.3d
1025, 1028 (9th Cir. 2017) (citation omitted).
III. DISCUSSION
Before turning to the issue before us, we first review the
statutory framework that sets the stage for our decision.
Congress has charged the Federal Aviation
Administration (FAA) with regulating aviation safety in the
United States pursuant to the Federal Aviation Act, 49 U.S.C.
§ 40101, et seq. See Martin ex rel. Heckman v. Midwest Exp.
3
Because we affirm the district court’s order granting the motions to
remand, AHI’s motion to dismiss is now moot.
RIGGS V. AIRBUS HELICOPTERS 7
Holdings, Inc., 555 F.3d 806, 808 (9th Cir. 2009). Pursuant
to this authority, the FAA promulgated the Federal Aviation
Regulations (FARs). See 14 C.F.R. § 1.1 et. seq. Standards
for certification of helicopters, such as the Crashed
Helicopter, are set forth in 14 C.F.R. § 27.1.
After demonstrating compliance with the FARs, an
aircraft owner may obtain a certificate from the FAA
approving the aircraft’s design. See 49 U.S.C. § 44704(a)(1);
14 C.F.R. §§ 21.21, et. seq. The FAA requires a
supplemental type certificate (Supplemental Certificate) for
any design changes to a type-certificated aircraft. See
49 U.S.C. § 44704(b). Therefore, AHI could make no design
change to the Crashed Helicopter absent the issuance of a
Supplemental Certificate.
To help ameliorate the effect of the FAA’s limited
resources, 49 U.S.C. § 44702(d)(1) provides that the FAA
“may delegate to a qualified private person . . . a matter
related to–(A) the examination, testing, and inspection
necessary to issue a certificate under this chapter; and
(B) issuing the certificate.” The Eighth Circuit has described
this delegation approach as a means of “reducing
governmental costs [and] eas[ing] the burden of regulation on
the aviation community by expediting the issuance of
requested certifications.” Charlima, Inc. v. United States,
873 F.2d 1078, 1081 (8th Cir. 1989).
Pursuant to 49 U.S.C. § 44702(d)(1), the FAA instituted
the Organization Designation Authorization (Designation)
program to delegate to organizations, such as AHI, the FAA’s
authority to inspect aircraft designs and issue certifications.
See 14 C.F.R. § 183.41. An FAA Designation “allows an
organization to perform specified functions on behalf of the
8 RIGGS V. AIRBUS HELICOPTERS
Administrator related to engineering, manufacturing,
operations, airworthiness, or maintenance.” 14 C.F.R.
§ 183.41(a). In 2009, AHI became an FAA-certified
Designation holder with authority to issue Supplemental
Certificates.4
The ongoing dispute in this appeal is whether AHI
satisfies the “acting under” prong of § 1442(a)(1). AHI
contends that it was formally delegated legal authority from
the FAA, and that this delegation establishes that it was
acting under the federal government for purposes of
§ 1442(a)(1). As an FAA delegee, AHI asserts that it does
more than merely comply with federal law–it assists in
carrying out the FAA’s duties. Acknowledging that it does
not make or promulgate federal law, AHI argues that the
district court erroneously relied on the holding from the
Seventh Circuit requiring entities to demonstrate a
engagement in rule-making rather than rule compliance to
satisfy the “acting under” requirement of § 1442(a)(1).
As a private party, AHI must demonstrate that it was
“involved in an effort to assist, or to help carry out, the duties
or tasks of the federal superior” to satisfy the “acting under”
requirement of § 1442(a)(1). Fidelitad, Inc v. Insitu, Inc., 904
F.3d 1095, 1099 (9th Cir. 2018) (citation and internal
quotation marks omitted). The pivotal question then is
4
The dissent references the recent crashes of the Boeing 737 Max to
support the argument that Boeing is authorized to self-certify the safety of
its fleet. See Dissenting Opinion, p. 24 n.2. However, in the aftermath of
the tragic crashes, it became clear that the FAA was calling the shots, not
Boeing. See Luz Lato, Michael Laris, Lori Aratani and Damian Paletta,
Democracy Dies in Darkness, Washington Post (March 13, 2019)
(reporting that the FAA grounded the 737 Max planes after a
“recommendation” from Boeing).
RIGGS V. AIRBUS HELICOPTERS 9
whether AHI was assisting the FAA to carry out the FAA’s
duties or whether AHI was “simply complying with the law,”
which would not bring it within the scope of § 1442(a)(1).
Id. at 1100.5
In Watson v. Philip Morris Cos., Inc., 551 U.S. 142,
145–47 (2007), the United States Supreme Court addressed
§ 1442(a)(1) in the context of a defendant tobacco company’s
contentions that its close working relationship with a federal
agency that directed and monitored its activities constituted
conduct that satisfied the “acting under” requirement.
Rejecting this argument, the Court held that Philip Morris did
not satisfy the “acting under” requirement of § 1442(a)(1).
Id. at 157. In the Court’s view, Philip Morris’s mere
compliance with federal regulations did not constitute “a
statutory basis for removal.” Id. at 153 (“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.”).
According to the Supreme Court, the “acting under”
requirement is not satisfied by mere compliance with a
regulation “even if the regulation is highly detailed and even
if the private firm’s activities are highly supervised and
monitored.”6 Id. The Court in Watson also noted that Philip
5
The dissent notes that the FAA authorizes certification of others.
See Dissenting Opinion, p. 28. However, that circumstance has zero effect
on the legal analysis dictated by Watson.
6
The dissent makes an effort to distinguish the controlling effect of
Watson by focusing on the delegation by the FAA of authority to issue
certificates. See Dissenting Opinion, pp. 29–30. However, as the Seventh
Circuit cogently observed, several other industries, including the energy
and health sectors, certify compliance without “acting under” the
regulating agencies. Lu Junhong, 792 F.3d at 809–10. As the Seventh
10 RIGGS V. AIRBUS HELICOPTERS
Morris had never been delegated legal authority from a
federal agency. See id. at 156.
Although we have not directly addressed removal under
§ 1442(a)(1) based on an FAA designation, we have
addressed removal under § 1442(a) in other contexts. In
Goncalves By & Through Goncalves v. Rady Children’s
Hosp. San Diego, 865 F.3d 1237, 1245–47 (9th Cir. 2017),
we considered whether the congressionally-authorized
delegation of insurance claims administration by the United
States Office of Personnel Management (OPM) to private
insurers conferred federal officer status upon those private
insurers for purposes of § 1442(a)(1). In Goncalves, the
private insurer placed a subrogation lien on the proceeds of a
settlement reached on behalf of Goncalves with Rady
Children’s Hospital. See id. at 1243. Goncalves filed a
motion in state court to expunge the lien, and the private
insurer removed the matter to federal court. See id. In
determining whether removal was proper, we addressed the
“acting under” provision of § 1442(a)(1). We explained that
“[f]or a private entity to be ‘acting under’ a federal officer,
the private entity must be involved in an effort to assist, or to
help carry out, the duties or tasks of the federal superior.” Id.
at 1245 (citation omitted) (emphases in the original). We
Circuit observed: “We doubt that the Justices would see a dispositive
difference between certified compliance and ordinary compliance. Indeed,
Watson rejected an argument . . . that a federal agency hadn’t ‘just’
required compliance with regulations but also had ‘delegated authority’ to
the manufacturer to determine compliance with those regulations. The
[Supreme] Court thought that inadequate to make the manufacturer a
person ‘acting under’ the agency.” Id. at 809 (quoting Watson, 551 U.S.
at 154–57). We agree with the Seventh Circuit that the Supreme Court in
Watson did not articulate a distinction between “certified” compliance and
compliance generally. Watson, 551 U. S. at 151–52.
RIGGS V. AIRBUS HELICOPTERS 11
noted that the actions taken by the private entity “must go
beyond simple compliance with the law and help officers
fulfill other basic governmental tasks.” Id. (citation and
alterations omitted).
We ultimately concluded that the private insurer was
“acting under” a federal officer. Not only did the OPM enter
into a contract with the private insurer for a negotiated fee,
the contract also authorized the insurer to pursue subrogation
benefits that would otherwise be pursued by OPM. See id. at
1246–47. But for the actions of the private insurers, OPM
would not be reimbursed when an employee successfully
pursued a third-party for payment of healthcare expenses
incurred by the employee. See id. at 1247. OPM delegated
to the private insurer the authority to pursue subrogation
claims on behalf of the government. See id. at 1247. Under
these circumstances, we concluded that the private insurer
was “acting under” a federal officer. Id. We reasoned that
the pursuit of subrogation claims took the private insurer
“well beyond simple compliance with the law and helped
[federal] officers fulfill other basic governmental tasks. Id.
(quoting Watson, 551 U.S. at 153) (alteration and internal
quotation marks omitted).
We recently grappled with the “acting under” requirement
of § 1442(a)(1) in Fidelitad, 904 F.3d 1095, and we included
a thoughtful discussion of Watson.7 In Fidelitad, a private
company (Fidelitad) that sold drones in Latin America placed
orders for the drones from a private drone manufacturer
(Insitu). See id. at 1097–98. The sales in Latin America
7
Our colleague in dissent contends that the majority opinion
misapplies Watson. See Dissenting Opinion, p. 19. However, that
contention completely ignores our similar analysis of Watson in Fidelitad.
12 RIGGS V. AIRBUS HELICOPTERS
required “export licenses from the federal government.” Id.
at 1098. The two companies subsequently had a falling out
over the provisions in the export licenses. See id.Consequently, Fidelitad filed an action against Insitu
asserting, among other claims, that Insitu improperly delayed
shipment of Fidelitad’s order. See id. at 1097. Insitu moved
for removal under § 1442(a)(1), arguing that it was “acting
under” the federal government because it delayed orders to
Fidelitad to ensure that Fidelitad complied with federal export
laws. See id. at 1098–100.
We held that in order to invoke § 1442(a)(1) removal, a
defendant “must demonstrate that (a) it is a person within the
meaning of the statute; (b) there is a causal nexus between its
actions, taken pursuant to a federal officer’s directions, and
plaintiff’s claims; and (c) it can assert a colorable federal
defense.” Id. at 1099 (citations and internal quotation marks
omitted). We identified the “central issue” in the case as
“whether Insitu was acting pursuant to a federal officer’s
directions” when denying shipment of the drones. Id.
(internal quotation marks omitted). We described the
“paradigm” of a private entity “acting under a federal officer”
as an individual “acting under the direction of a federal law
enforcement officer,” such as a private citizen assisting in a
law enforcement raid. Id. (citations and internal quotation
marks omitted).
We focused on the fact that no federal officer directed
Insitu to delay the orders. See id. at 1100. Nevertheless,
Insitu maintained that it was “acting under” a federal officer
because the delay was for the purpose of ensuring compliance
with the International Traffic in Arms Regulation, 22 C.F.R.
§§ 120–130, which governs the sale of military goods to
foreign governments. See id. Citing Watson and Lu
RIGGS V. AIRBUS HELICOPTERS 13
Junhong, we reiterated that mere compliance with governing
regulations “does not bring a private actor within the scope of
the federal officer removal statute.” Id.We explained that Watson involved allegations that a
cigarette company sold cigarettes that delivered more tar and
nicotine than advertised. See id. The company removed the
case on the basis that it was acting under the direction of a
federal officer by using a required test protocol that was
“closely monitored by the federal government.” Id. We
described the Supreme Court as unpersuaded by the
company’s position, noting its holding that removal was not
appropriate even though “a federal agency directs, supervises,
and monitor’s a company’s activities in considerable detail.”
Id. (citation and internal quotation marks omitted).
According to our reading of Watson in Fidelitad, extensive
“federal regulation alone” did not suffice to meet the “acting
under” requirement of § 1442(a)(1). Id. We also observed
that the Supreme Court’s rationale in Watson counseled
rejection of Insitu’s argument regarding its stated attempts to
not only comply with federal regulations, but to “also
attempt[] to enforce specific provisions in Fidelitad’s export
licenses.” Id. We recognized the Supreme Court’s rejection
in Watson of the notion “that a company subject to a
regulatory order (even a highly complex order) is acting
under a federal officer.” Id. (quoting Watson, 551 U.S.
at 152–53) (parallel citation and internal quotation marks
omitted).
Finally, in Fidelitad we acknowledged that government
contractors may “act under federal officers.” Id. (citation
omitted). But, we clarified, the government did not contract
with Insitu and the regulation and export licenses did not
“establish the type of formal delegation that might authorize
14 RIGGS V. AIRBUS HELICOPTERS
Insitu to remove the case.” Id. at 1101 (quoting Watson,
551 U.S. at 156) (alteration omitted).
The dissent seeks to minimize the persuasive power of
Fidelitad by commenting that a different statutory regime
was involved. See Dissenting Opinion, p. 30 n.3. However,
the dissent’s summary comment elides the fact that we were
confronted with the identical issue in Fidelitad that we
resolve in this case, whether the “acting under” requirement
of § 1442(a)(1) was satisfied. The dissent also fails to grapple
with the reality that in Fidelitad, we cited with approval the
Seventh Circuit’s Lu Junhong decision. Finally, despite
criticizing the precedent cited by the majority, the dissent did
not, and cannot, cite one case from this circuit that supports
its analysis of the “acting under” requirement. The best the
dissent can muster is a case from the Eleventh Circuit,
Magnin v. Teledyne Cont’l Motors, 91 F.3d 1424 (11th Cir.
1996), decided eleven years prior to Watson and an argument
from a Solicitor General that was rejected by the Supreme
Court. See Dissenting Opinion, pp. 26–27.
Our analysis in Fidelitad is generally consistent with the
approach taken by the Seventh Circuit in Lu Junhong, the
case relied on by the district court. Lu Junhong involved a
dispute over the design of a plane that broke apart during
flight while landing in San Francisco. See 792 F.3d at 807.
After being initially sued in state court, Boeing contended
that it was entitled to removal under § 1442(a)(1) because it
was “acting under” the authority of the federal government,
having been granted the authority by the FAA “to use FAA-
approved procedures to conduct analysis and testing required
for the issuance of type, production, and airworthiness
certifications for aircraft under Federal Aviation
RIGGS V. AIRBUS HELICOPTERS 15
Regulations.” Id. at 807–08. Boeing’s argument in Lu
Junhong mirrors AHI’s posture in this appeal.
The Seventh Circuit rejected Boeing’s argument. See id.
at 810. The court reasoned that “we know from [Watson] that
being regulated, even when a federal agency directs,
supervises, and monitors a company’s activities in
considerable detail, is not enough to make a private firm a
person “acting under” a federal agency.” Id. at 809 (citation
and internal quotation marks omitted).
In discussing its rejection of Boeing’s argument that it,
unlike Philip Morris in Watson, possessed formal delegation
from the FAA of the authority to certify compliance, the
Seventh Circuit explained:
[T]his [authority] is still a power to certify
compliance, not a power to design the rules
for airworthiness. The FAA permits Boeing to
make changes to its gear after finding that the
equipment as modified meets the FAA’s
standards; it does not permit Boeing to use
gear that meets Boeing’s self-adopted criteria.
Id. at 810 (emphasis in the original).
The Seventh Circuit interpreted Watson as requiring the
delegation of “rule making” authority rather than “rule
compliance” certification to meet the “acting under” standard.
Id. The Seventh Circuit suggested that, at a minimum,
Boeing would have to be delegated “a power to issue
conclusive certification of compliance.” Id. (emphasis in the
original). Because Boeing’s self-certification was not binding
on either the FAA or a reviewing court, the Seventh Circuit
16 RIGGS V. AIRBUS HELICOPTERS
determined that Boeing did not come within the “acting
under” provision of § 1442(a)(1). See id.
The district court in this case adopted the Seventh
Circuit’s “rule making-compliance” distinction in finding that
AHI was not “acting under” a FAA delegation. Although we
cited Lu Junhong with approval in Fidelitad, 904 F.3d
at 1100, we notably did not incorporate the Seventh Circuit’s
rule-making-rule compliance dichotomy. Rather, we
referenced Lu Junhong for the proposition that compliance
with the law “does not bring a private actor within the scope
of the federal officer removal statute” and neither does
delegation of authority “to self-certify compliance with the
relevant regulations.” Id. (quoting Lu Junhong, 729 F.3d at
808–10).
We are persuaded by the consistent reasoning of Watson,
Goncalves, and Fidelitad to conclude that the district court
committed no error in finding that AHI was not “acting
under” a federal officer by virtue of becoming an FAA-
certified Designation holder with authority to issue
Supplemental Certificates. AHI concedes that, as a
Designation holder, it “must perform all delegated functions
in accordance with a detailed, FAA-approved procedures
manual specific to each [Designation] holder.” (emphasis
added). Language such as “in accordance with” and “FAA-
approved” suggest a relationship based on compliance rather
than assistance to federal officers. Cf. Goncalves, 865 F.3d
at 1245–46 (noting that a private insurer was “acting under”
a federal officer when it entered into a contract with a
government agency to pursue third-party reimbursements).
Importantly, one of the regulations circumscribing an FAA
delegee’s authority to certify provides that “each applicant
must allow the FAA to make any inspection and any flight
RIGGS V. AIRBUS HELICOPTERS 17
and ground test necessary to determine compliance with the
applicable requirements of this subchapter.”8 14 C.F.R.
§ 21.33 (emphasis added). This language explicitly denotes
compliance and, as discussed, mere compliance with federal
directives does not satisfy the “acting under” requirement of
§ 1442(a)(1), even if the actions are “highly supervised and
monitored.” Watson, 551 U.S. at 153; see also Goncalves,
865 F.3d at 1245; Fidelitad, 904 F.3d at 1100.
AHI concedes that it cannot make design changes without
approval from the FAA. At oral argument, AHI even
acknowledged that the FAA has the authority to rescind any
action taken by AHI in connection with the certification
process. These facts demonstrate that AHI was duty-bound
to follow prescriptive rules set forth by the FAA, thus falling
within the “simple compliance with the law” circumstance
that does not meet the “acting under” standard. Goncalves,
865 F.3d at 1247; see also Fidelitad, 904 F.3d at 1100. In
sum, AHI’s actions as an issuer of Supplemental Certificates
fit squarely within the precept of mere compliance with
regulatory standards and outside the “acting under” provision
of 1442(a)(1). Watson, 551 U.S. at 153.
We foreshadowed the outcome of this case in Fidelitad,
noting with approval the determination in Lu Junhong,
792 F.3d at 808–10, that an “airplane manufacturer was not
acting under a federal officer . . . although federal law gave
the manufacturer authority to self-certify compliance with the
relevant regulations.” 904 F.3d at 1100. In keeping with our
analysis in Fidelitad, we hold that AHI was not acting under
8
The dissent completely disregards this language requiring
compliance with FAA regulations. See Dissenting Opinion, pp. 29–30
(denying Airbus’ compliance obligation).
18 RIGGS V. AIRBUS HELICOPTERS
a federal officer although federal regulations gave AHI
authority to issue Supplemental Certificates in accordance
with FAA regulations. See id. Although we agree generally
with the holding of Lu Junhong, as we did in Fidelitad, we
decline to adopt the rulemaking-rule compliance distinction
articulated by the Seventh Circuit and relied on by the district
court. See Lu Junhong, 792 F.3d at 810. We are content to
rely on the more clearly articulated common analyses from
Watson, Goncalves, and Fidelitad focusing on whether the
private entity is engaged in mere compliance with federal
regulations. See e.g., Fidelitad, 904 F.3d at 1100.
Finally, AHI relies heavily on the district court decision
of Estate of Hecker v. Robinson Helicopter Co., 2013 WL
5674982 (E.D. Wash. 2013). In Hecker, the plaintiff brought
an action in state court, asserting state law claims for
wrongful death, negligence, and products liability arising
from a helicopter crash. See id. at *1. There, as here, the
helicopter manufacturer removed the case to federal court
under § 1442(a)(1), and the plaintiff moved to remand the
case for lack of jurisdiction. See id. The district court held
that the defendant’s status as a Designation holder satisfied
the “acting under” requirement. Id. at *2. However, not only
is Hecker non-binding, it was decided before our decisions in
Goncalves and Fidelitad.
IV. CONCLUSION
AHI inspected and certified its aircraft pursuant to FAA
regulations and federal law and could not make any structural
or design changes without the consent of the FAA. The
Supreme Court decision in Watson and our decisions in
Goncalves and Fidelitad fully support the proposition that
AHI’s mere compliance with federal regulations did not
RIGGS V. AIRBUS HELICOPTERS 19
satisfy the “acting under” requirement of § 1442(a)(1). We
join the Seventh Circuit in concluding that an aircraft
manufacturer does not act under a federal officer when it
exercises designated authority to certify compliance with
governing federal regulations.9
AFFIRMED.
O’SCANNLAIN, Circuit Judge, dissenting:
The federal officer removal statute authorizes a defendant
in a state court civil action to remove the case to federal court
if it is “acting under” a federal agency. 28 U.S.C.
§ 1442(a)(1). In this case, the Federal Aviation
Administration (“FAA”) “delegate[d]” to Airbus Helicopters,
Inc. (“Airbus”) the authority to issue “certificates” on the
agency’s behalf—certificates that the FAA must otherwise
issue on its own before an aircraft can be lawfully flown.
49 U.S.C. §§ 44702(d)(1), 44704. Because Airbus undertakes
these duties on the FAA’s behalf, I conclude that Airbus
“act[s] under” a federal agency within the meaning of
§ 1442(a)(1). I believe that our court’s contrary holding
misunderstands the FAA’s regulatory regime and misapplies
the Supreme Court’s decision in Watson v. Philip Morris
Cos., 551 U.S. 142 (2007).
I respectfully dissent.
9
Because we conclude that AHI failed to meet the “acting under”
requirement of § 1442(a)(1), we need not and do not address any other
arguments advanced by the parties on appeal. See Fidelitad, 904 F.3d
at 1101 n.4.
20 RIGGS V. AIRBUS HELICOPTERS
I
This case turns on the interaction between two statutes:
the Federal Aviation Act, see 49 U.S.C. § 40103 et seq., and
the federal officer removal statute, see 28 U.S.C. § 1442.
A
1
In the Federal Aviation Act, Congress charged the FAA
with the duty to establish “minimum standards required in the
interest of safety” for the “design, material, construction,
quality of work, and performance of aircraft, aircraft engines,
and propellers.” 49 U.S.C. § 44701(a)(1). The FAA
promulgated (and regularly revises) the Federal Aviation
Regulations, which delineate such standards. See 14 C.F.R.
§ 1.1 et seq. Given the technological complexity of modern
aircraft, these safety standards dictate an aircraft’s design
from its critical components to its smallest detail. For
instance, a helicopter—or, in the FAA’s parlance, a
“rotorcraft”—must satisfy regulations covering everything
from its “landing gear” to the “number of self-contained,
removable ashtrays.” Id. §§ 27.729, 27.853(c)(1).
Besides imposing substantive safety standards, the Act
also creates a “multistep certification process to monitor the
aviation industry’s compliance.” United States v. S.A.
Empresa de Viacao Aerea Rio Grandense (Varig Airlines),
467 U.S. 797, 804 (1984). Before an aircraft can lawfully take
flight, the FAA must issue a series of “certifications” or
“certificates”—terms that the Act uses interchangeably. The
first of these is called a “type certificate,” which the FAA
“shall issue” if it finds the aircraft “is properly designed and
RIGGS V. AIRBUS HELICOPTERS 21
manufactured, performs properly, and meets the regulations
and minimum standards prescribed [by the FAA].” 49 U.S.C.
§ 44704(a)(1). Then, before the manufacturer can mass
produce an approved design, it must obtain a “production
certificate.” Id. § 44704(c). To do so, the manufacturer must
show that duplicates of the design will, among other things,
“conform to the [type] certificate.” Id. Finally, the owner of
each aircraft must obtain an “airworthiness certificate” by
showing that the aircraft “conforms to its type certificate and,
after inspection, is in condition for safe operation.” Id.
§ 44704(d)(1). It is illegal to operate an aircraft without an
airworthiness certificate. See id. § 44711(a)(1).
Together, these certification requirements prohibit a
manufacturer (or the aircraft’s eventual owner) from altering
an aircraft’s design without the FAA’s approval. Instead, if a
manufacturer wishes to make changes, it must seek one of
two possible certificates. If a “proposed change . . . is so
extensive that a substantially complete investigation of
compliance . . . is required,” then the manufacturer must seek
a new type certificate from the FAA. 14 C.F.R. § 21.19. For
less significant changes, the holder of a type certificate may
seek a “supplemental type certificate.” 49 U.S.C.
§ 44704(b)(1) (emphasis added); see also 14 C.F.R. § 21.113.
Like an ordinary type certificate, a supplemental certificate
authorizes the holder then to seek production and
airworthiness certificates for the modified design. See id.§ 21.119.
2
Perhaps because of this elaborate certification process,
Congress offered the FAA an unusual tool to ease its
22 RIGGS V. AIRBUS HELICOPTERS
regulatory burden: the authority to delegate its duties to the
private sector. Specifically, the Act states:
(d) DELEGATION.—(1) Subject to regulations,
supervision, and review the Administrator
may prescribe, the Administrator may
delegate to a qualified private person . . . a
matter related to (A) the examination, testing,
and inspection necessary to issue a certificate
under this chapter; and (B) issuing the
certificate.”
49 U.S.C. § 44702(d)(1) (emphasis added); see also Varig
Airlines, 467 U.S. at 807 (“[T]he FAA obviously cannot
complete this elaborate compliance review process alone.
Accordingly, [the Act] authorizes the Secretary to delegate
certain inspection and certification responsibilities to properly
qualified private persons.”).
Since 1927, the FAA and its predecessor agency have
established programs delegating its certification authority to
the private sector—either to individual engineers or to
organizations. Establishment of Organization Designation
Authorization Program, 70 Fed. Reg. 59,932, 59,932 (Oct. 13,
2005) (codified at 14 C.F.R. pts. 21, 121, 135, 145, 183)
[hereinafter ODA Rule]. In 2005, the FAA exercised its
authority under § 44702(d) to institute the Organization
Designation Authorization (“ODA”) Program, which
“consolidat[es] and improve[s]” the “piecemeal
organizational delegations” previously developed. Id.
at 59,933.
Under such program, the FAA authorizes “ODA Holders”
to “perform specified functions on behalf of the
RIGGS V. AIRBUS HELICOPTERS 23
Administrator.” 14 C.F.R. § 183.41. ODA Holders act as
“representatives of the Administrator,” and when “performing
a delegated function, [they] are legally distinct from and act
independent of the organizations that employ them.” ODA
Rule, 70 Fed. Reg. at 59,933. Further, to become an ODA
Holder, an organization must sign a memorandum of
understanding promising to “comply with the same standards,
procedures, and interpretations applicable to FAA employees
accomplishing similar tasks.” Federal Aviation
Administration, Organization Designation Authorization
Procedures, Order 8100.15, at A1-17 (2006) [hereinafter
ODA Order].1
Since 2009, Airbus has been a “Supplemental Type
Certification ODA.” Id. ¶ 2–6, at 5. In this capacity, Airbus
has the authority to “develop and issue supplemental type
certificates . . . and related airworthiness certificates.” Id.
Airbus may issue such certificates both for its own aircraft or
for those of other applicants. See id. ¶ 11–7, at 88. Although
the FAA may revoke Airbus’s ODA status or reconsider its
issuance of a specific certificate, see 49 U.S.C.
§ 44702(d)(2)–(3), a certificate issued by Airbus carries the
same legal consequence as one issued by the FAA: it gives
the FAA’s formal approval to the aircraft’s design (in the case
1
Order 8100.15 “establishes the procedures, guidance, and limitations
of authority [the FAA] grant[s] to an organization” under the ODA
Program. ODA Order, at i. Since 2006, the FAA has amended Order
8100.15, see Federal Aviation Administration, Organization Designation
Authorization Procedures, Order 8100.15B (2018), but the 2006 version
of the Order governed at the time of the subject helicopter’s manufacture
and sale.
24 RIGGS V. AIRBUS HELICOPTERS
of a supplemental type certificate) or the aircraft itself (in the
case of an airworthiness certificate).2
B
The federal officer removal statute permits a defendant to
remove to federal court a state court action brought against
“[t]he 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, in an official or individual capacity,
for or relating to any act under color of such
office . . . .”
28 U.S.C. § 1442(a)(1) (emphasis added). In Watson, the
Supreme Court held that a person “act[s] under” a federal
officer or agency if his actions “involve an effort to assist, or
to help carry out, the duties or tasks of the federal superior.”
551 U.S. at 152. Although a “private firm’s compliance . . .
with federal laws, rules, and regulations” does not itself
satisfy the statute’s “acting under” requirement, id. at 153(emphasis added), a formal “delegation of legal authority”
goes beyond the “usual regulator/regulated relationship,” id.at 156–57. Thus, Watson counsels that the “delegation of
legal authority . . . [to act] on the Government agency’s
2
In the aftermath of the recent crash of the Boeing 737 Max in
Ethiopia, there seems to be some appetite on Capitol Hill to revisit the
FAA’s private-public partnership. See Thomas Kaplan, After Boeing
Crashes, Sharp Questions About Industry Regulating Itself, N.Y. Times
(Mar. 26, 2019); David Koenig & Tom Krisher, The FAA’s Oversight of
Boeing Will Be Examined in Senate Hearings, Time (Mar. 27, 2019). But
until (and unless) such proposals become law, we must apply the statute
as it presently exists.
RIGGS V. AIRBUS HELICOPTERS 25
behalf” satisfies § 1442(a)(1)’s “acting under” requirement.
Id. at 156.
II
Because the FAA delegates to ODA Holders its formal
legal authority to issue certificates, I conclude, in respectful
disagreement with the majority’s analysis, that Airbus “act[s]
under” the FAA.
A
1
Beginning with the text, the Federal Aviation Act
compels the conclusion that the FAA delegates formal legal
authority to ODA Holders. By its own terms, 49 U.S.C.
§ 44702(d)(1) authorizes the FAA to “delegate” a “matter
related to” the “examination, testing, and inspection
necessary to issue a certificate” and “issuing the certificate.”
To “delegate” means to “give part of one’s power or work to
someone in a lower position within one’s organization.”
Delegate, Black’s Law Dictionary (9th ed. 2009); see also
Delegate, Webster’s Third New International Dictionary
(unabr. ed. 1986) (“[T]o entrust to another: transfer, assign,
commit
”). Congress’s use of “delegate” thus suggests that
the FAA may transfer its own formal legal powers to private
persons, and the rest of the statute accords with such
interpretation. In 49 U.S.C. § 44702(a), for instance,
Congress established that the “Administrator of the [FAA]
may issue” the long list of certificates mandated by the Act.
See also 49 U.S.C. § 44704 (same). Accordingly, the
26 RIGGS V. AIRBUS HELICOPTERS
responsibility to issue certificates falls in the first instance to
the FAA, and it is this authority that § 44702(d)(1) allows the
agency to “delegate.”
Confirming Congress’s mandate, the FAA itself describes
the ODA Program as a delegation of legal authority. Under
the program, ODA Holders like Airbus function as
“representatives of the Administrator” and “perform[] a
delegated function.” ODA Rule, 70 Fed. Reg. at 59,933; see
also 14 C.F.R. § 183.41 (similar). The ODA Order states that
the program “delegate[s] certain types of authority to
organizations,” and that such designees “act on the FAA’s
behalf.” ODA Order, ¶ 1–1, at 1. Further, these delegees
“assist” the agency and “help carry out” its manifold “duties
[and] tasks,” Watson, 551 U.S. at 152 (emphasis removed),
because the “[d]elegation of tasks to these organizations
[allows] the FAA to focus [its] limited resources on more
critical areas,” ODA Rule, 70 Fed. Reg. at 59,933.
Altogether, Congress and the FAA expressly said—time
and again—that the agency indeed “delegate[s]” to private
persons (like Airbus) the authority to issue certificates, and
Watson counsels that a “delegation of legal authority”
satisfies § 1442(a)(1)’s “acting under” requirement. 551 U.S.
at 154–57. It follows that Airbus “act[s] under” the FAA.
2
I am not alone in this view. The Eleventh Circuit came to
the same conclusion in Magnin v. Teledyne Cont’l Motors,
91 F.3d 1424 (11th Cir. 1996), and the Solicitor General has
endorsed that court’s holding. In its briefing for Watson, the
Solicitor General argued that the defendant could not seek
removal under the federal officer removal statute (as the
RIGGS V. AIRBUS HELICOPTERS 27
Supreme Court later held), but it cited Magnin to support the
argument that “a private citizen delegated authority to inspect
aircraft by the [FAA] acts under a federal officer in
conducting such an inspection and issuing a certificate of
airworthiness.” Brief for the U.S. as Amicus Curiae
Supporting Petitioners at 26, Watson, 551 U.S. 142 (No. 05-
1284). “The critical point,” the Solicitor General continued,
“is that the individual acts on behalf of the FAA
Administrator in conducting the inspection.” Id.B
Despite the clear evidence of delegation, the majority
concludes that Airbus’s actions as an ODA Holder constitute
mere “compliance” with FAA regulations. See Maj. Op.
at 16–18. With respect, I believe the majority is wrong.
1
The majority’s critical error is that it conflates Airbus’s
two distinct roles as a manufacturer and as an FAA delegee.
Specifically, an ODA Holder acts as either the regulated party
or the regulator—depending on the specific function
performed. It is true, of course, that all manufacturers—in
their capacity as manufacturers—must comply with the
FAA’s numerous safety standards whenever they design or
build an aircraft. But as an ODA Holder, the organization also
acts as a “representative[] of the Administrator.” ODA Rule,
70 Fed. Reg. at 59,933. In this capacity, the manufacturer is
“legally distinct from” the organization, and its “authority . . .
to act comes from an FAA delegation.” Id. Put differently, the
manufacturer doffs its “aviation industry hat” and dons its
“FAA hat,” and so clad, the ODA Holder exercises the
agency’s statutory authority to issue certificates.
28 RIGGS V. AIRBUS HELICOPTERS
Perhaps because the issuance of certificates so obviously
constitutes an exercise of the FAA’s governmental power, the
majority seeks to recast the ODA Program as a “self-
certification” regime. See Maj. Op. at 16–18 (emphasis
added). The majority borrows such reasoning from Lu
Junhong v. Boeing Co., where the Seventh Circuit compared
a manufacturer’s authority to issue certificates to “a person
filing a tax return” compelled to certify that he reported his
income “honestly.” 792 F.3d 805, 809 (7th Cir. 2015). Such
“certified compliance,” the court reasoned, was
indistinguishable from other forms of “ordinary compliance”
deemed insufficient to satisfy § 1442(a)(1). Id. at 810.
Once again, the majority—as Lu Junhong before
it—evinces its misunderstanding of the regulatory regime.
Although an ODA Holder issuing a certificate must ensure
that the aircraft complies with the FAA’s safety standards, the
organization’s issuance of the certificate does more; it stamps
the FAA’s imprimatur on the aircraft. In so doing, the ODA
Holder exercises a power derived from the agency and
independent from its responsibilities as a manufacturer.
Indeed, the FAA authorizes ODA Holders like Airbus to issue
certificates “to an applicant other than the ODA
Holder”—thus confirming that such power cannot be reduced
to self-certification. ODA Order, ¶ 11–6, at 88 (emphasis
added). And because the nature of the certification authority
should not fluctuate depending on who is granted the
certificate, the mere fact that Airbus certifies its own aircraft
has no bearing on whether it “act[s] under” the FAA.
In short, a true self-certification regime (as with the
taxpayer attesting to his income) involves an affirmation that
the regulated party completed his duty; an ODA Holder’s
RIGGS V. AIRBUS HELICOPTERS 29
“certification” conveys the agency’s formal approval to the
aircraft.
2
The majority’s flawed understanding of the ODA
Program blinds it to the differences between this case and
Watson. There, the defendant—Philip Morris—argued that
the FTC had “delegated authority” to test cigarettes for tar
and nicotine, and that it “‘act[ed] under’ officers of the FTC”
when it conducted such testing. Watson, 551 U.S. at 154(emphasis removed). But the Supreme Court “found no
evidence of any delegation of legal authority from the FTC to
the industry association”—the “fatal flaw” in Philip Morris’s
argument. Id. at 156 (emphasis added). Accordingly, the
Court found no reason to treat “the FTC/Philip Morris
relationship as distinct from the usual regulator/regulated
relationship.” Id. at 157.
Eager to fit this case into Watson’s mold, the majority
casts Airbus as a regulated party complying (or self-certifying
compliance) with FAA rules and regulations. See Maj. Op.
at 16–18. But as shown, Congress and the FAA said that the
FAA delegates “legal authority” to act “on the Government
agency’s behalf.” Watson, 551 U.S. at 156. That delegation
goes well beyond the “usual regulator/regulated relationship,”
id. at 157, and as a delegee Airbus “assist[s]” and “help[s]
carry out” the duties and tasks of the FAA, id. at 152(emphasis removed). Under the correct reading of Watson,
30 RIGGS V. AIRBUS HELICOPTERS
such a scheme satisfies § 1442(a)(1)’s “acting under”
requirement. Id.3
III
The federal officer removal statute allows those who labor
on the federal government’s behalf, and are therefore sued in
state court, to have such case tried in a federal forum. In this
case, the FAA authorized Airbus to issue certificates that the
agency would otherwise issue on its own, and such delegation
satisfies § 1442(a)(1)’s “acting under” requirement. Of
course, it might seem strange that a manufacturer’s
participation in this private-public partnership would permit
it to avoid state court; § 1442’s core purpose, after all, is to
give federal officials “a federal forum in which to assert
federal immunity defenses.” Watson, 551 U.S. at 150(emphasis added). But the statute’s text is broader still, and
our court has discerned a “clear command from both
Congress and the Supreme Court that when federal officers
and their agents are seeking a federal forum, we are to
interpret section 1442 broadly in favor of removal.” Durham
v. Lockheed Martin Corp., 445 F.3d 1247, 1252 (9th Cir.
3
The Ninth Circuit cases that the majority cites do not support its
conclusion. See Maj. Op. at 10–15 (citing Goncalves v. Rady Children’s
Hosp. San Diego, 865 F.3d 1237 (9th Cir. 2017), and Fidelitad, Inc. v.
Insitu, Inc., 904 F.3d 1095 (9th Cir. 2018)). Both cases apply Watson to
statutory regimes quite different from the FAA’s, and each decision’s fact-
intensive analysis defies extraction of a simple rule that resolves this case.
The majority’s broad assertion that the court in Fidelitad was “confronted
with the identical issue” that we confront here is simply wrong, Maj. Op.
at 14; Fidelitad did not address a situation where an entity had formally
and explicitly been delegated authority to issue certificates on behalf of a
federal agency, let alone the specific delegation that Airbus acts under
here.
RIGGS V. AIRBUS HELICOPTERS 31
2006) (emphasis added). The clear consequence of
Congress’s handiwork is that FAA delegees perform the
agency’s tasks. Because Airbus is such a delegee,
§ 1442(a)(1) entitles it to a federal forum.
I respectfully dissent.