Mary Riggs v. Airbus Helicopters, Inc.

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 <power delegated by the people to the legislature>

<one may [delegate] one’s authority to a competent

assistant>”). 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.