By David Yucht, J.D.
A helicopter manufacturer was not "acting under" the authority of the Federal Aviation Administration for purposes of the federal officer removal statute when it certified design changes to aircraft.
The U.S. Court of Appeals for the Ninth Circuit determined that Airbus Helicopters, Inc.’s authority under FAA regulation to issue supplemental certificates for design changes to certain aircraft did not mean it was "acting under" the authority of a federal agency for purposes of removing a civil action to federal court. An aircraft manufacturer does not act under a federal officer when it exercises designated authority to certify compliance with governing federal regulations. Consequently, the Ninth Circuit affirmed a district court ruling remanding a wrongful death lawsuit filed against Airbus back to state court (Riggs v. Airbus Helicopters, Inc., September 20, 2019, Rawlinson, J.).
Following a fatal helicopter crash, the estate of a deceased passenger sued the helicopter manufacturer, Airbus, in Nevada state court. The estate alleged that the 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. Airbus removed the action to federal court on the basis of 28 U.S.C. §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 office." FAA regulations set forth standards for certification of helicopters. The FAA had delegated to Airbus the authority to issue supplemental certificates for design changes to certain aircraft. Airbus argued that this grant of authority meant it was "acting under" the authority of the FAA for purposes of removal. However, the district court granted a motion filed by the passenger’s estate to have the matter remanded back to state court. Airbus appealed.
Removal/remand. The Ninth Circuit affirmed the district court’s remand. After demonstrating compliance with FAA regulations, an aircraft owner may obtain a certificate from the agency approving the aircraft’s design. The FAA requires a supplemental type certificate (supplemental certificate) for any design changes to a type-certificated aircraft. To help with the FAA’s limited resources, legislation provides that the FAA "may delegate to a qualified private person a matter related to the examination, testing, and inspection necessary to issue a certificate[.]" The FAA instituted a designation program to delegate to organizations, such as Airbus, the FAA’s authority to inspect aircraft designs and issue certifications. In 2009, the FAA delegated this authority to Airbus. Airbus asserted that it satisfied the "acting under" prong of the removal statute based on this delegation of authority.
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. Airbus conceded 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." The Ninth Circuit opined that language such as "in accordance with" and "FAA-approved" suggested a relationship based on compliance rather than assistance to federal officers. Moreover, Airbus was duty-bound to follow prescriptive rules set forth by the FAA, thus falling within the "simple compliance with the law" circumstance that did not meet the "acting under" standard.
Dissenting opinion. Judge O’Scannlain dissented, opining that the federal officer removal statute allows those who labor on behalf of the federal government, and as a result are sued in state court, to defend themselves in federal court. Here, the FAA authorized Airbus to issue certificates that the FAA would have otherwise had to issue itself. Such delegation satisfied §1442(a)(1)’s "acting under" requirement. The statute’s text is broad and the Ninth Circuit had previously discerned a "clear command from both Congress and the Supreme Court that when federal officers and their agents are seeking a federal forum," §1442 should be interpreted broadly in favor of removal. The dissent believed that FAA delegees perform the agency’s tasks and, consequently, should be entitled to a federal forum.
The case is No. 18-16396.
Attorneys: Anita Porte Robb (Robb & Robb LLC) for Mary Riggs. Carter G. Phillips (Sidley Austin LLP) for Airbus Helicopters, Inc. Patrick J. Kearns (Wilson Elser Moskowitz Edelman & Dicker LLP) for Matthew Hecker and Daniel Friedman.
Companies: Airbus Helicopters, Inc.
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