Mary Riggs, as Personal Representative of the Estate of Jonathan Neil Udall, for the benefit of the Estate of Jonathan Neil Udall, and Philip and Marlene Udall as Next of Kin and Natural Parents of Jonathan Neil Udall, deceased, Plaintiff-Appellee,
Airbus Helicopters, Inc., Defendant-Appellant,
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.
and Submitted February 14, 2019 San Francisco, California
from the United States District Court D.C. No.
2:18-cv-00912-JCM-GWF for the District of Nevada James C.
Mahan, District Judge, Presiding
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
C. Robb (argued) and Anita Porte Robb, Robb & Robb LLC,
Kansas City, Missouri; Lawrence J. Smith, Bertoldo Baker
Carter & Smith, Las Vegas, Nevada; for
Patrick J. Kearns (argued), Wilson Elser Moskowitz Edelman
& Dicker LLP, San Diego, California, for
L. Haertlein, General Aviation Manufacturers Association,
Washington, D.C., for Amicus Curiae General Aviation
Before: Mary M. Schroeder, Diarmuid F. O'Scannlain, and
Johnnie B. Rawlinson, Circuit Judges.
Officer Removal Statute
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).
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 any agency thereof, in an official or individual
capacity, for or relating to any act under color of such
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
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
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.
RAWLINSON, CIRCUIT JUDGE.
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
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 owned and
operated by several of the Hecker Defendants and manufactured
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.
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).
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).
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
STANDARD OF REVIEW
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
turning to the issue before us, we first review the statutory
framework that sets the stage for our decision.
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.
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.
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
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.
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 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.
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 §
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 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.
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." Id. The Court in
Watson also noted that Philip Morris had never been
delegated legal authority from a federal agency. See
id. at 156.
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 ...