Petition for Writ of Certiorari — Airbus Helicopters, Inc., Petitioner v. Mary Riggs, et al.

Supreme Court briefMar 20, 2020

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APPENDIX

APPENDIX A

UNITED STATES COURT OF APPEALS,

NINTH CIRCUIT

————

No. 18-16396

————

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.

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Argued and Submitted February 14, 2019

San Francisco, California

Filed September 20, 2019

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OPINION

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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 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

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.

In this appeal, the Hecker Defendants are DefendantsAppellees whose interests are aligned with the interests of Riggs.

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).

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.

Because we affirm the district court’s order granting the

motions to remand, AHI’s motion to dismiss is now moot.

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. 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 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).

The dissent references the recent crashes of the Boeing 737

Max to support the argument that Boeing is authorized to selfcertify the safety of its fleet. See Dissenting Opinion, p. 992 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).

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 1100.5

In Watson v. Philip Morris Cos., Inc., 551 U.S. 142,

145–47, 127 S.Ct. 2301, 168 L.Ed.2d 42 (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,

127 S.Ct. 2301. In the Court’s view, Philip Morris’s

mere compliance with federal regulations did not

constitute “a statutory basis for removal.” Id. at 153,

127 S.Ct. 2301 (“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

The dissent notes that the FAA authorizes certification of

others. See Dissenting Opinion, p. 994. However, that circumstance has zero effect on the legal analysis dictated by Watson.

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. 994–

Philip Morris had never been delegated legal authority

from a federal agency. See id. at 156, 127 S.Ct. 2301.

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

95. 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 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, 127 S.Ct. 2301). 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, 127 S.Ct.

2301.

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 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, 127 S.Ct. 2301) (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

Our colleague in dissent contends that the majority opinion

misapplies Watson. See Dissenting Opinion, p. 990. However,

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 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.

that contention completely ignores our similar analysis of Watson

in Fidelitad.

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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 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

monitors 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, 127

S.Ct. 2301) (parallel citation and internal quotation

marks omitted).

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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 Insitu to remove the

case.” Id. at 1101 (quoting Watson, 551 U.S. at 156,

127 S.Ct. 2301) (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. 995

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. 993–94.

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

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“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 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

13a

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

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-rule-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-makingrule-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,

792 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

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FAA delegee’s authority to certify provides that “each

applicant must allow the FAA to make any inspection

and any flight 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, 127 S.Ct. 2301; 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, 127 S.Ct. 2301.

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 . . .

The dissent completely disregards this language requiring

compliance with FAA regulations. See Dissenting Opinion, pp.

994–95 (denying Airbus’ compliance obligation).

15a

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

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 rule-makingrule-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

16a

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 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.

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.

17a

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, 127 S.Ct. 2301, 168 L.Ed.2d 42 (2007).

I respectfully dissent.

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.

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

18a

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, 104 S.Ct. 2755, 81

L.Ed.2d 660 (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 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

19a

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.

Perhaps because of this elaborate certification process, Congress offered the FAA an unusual tool to ease

its 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, 104 S.Ct. 2755 (“[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

20a

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 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

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.

21a

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 of a supplemental type certificate)

or the aircraft itself (in the case of an airworthiness

certificate).2

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

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.

22a

federal superior.” 551 U.S. at 152, 127 S.Ct. 2301.

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, 127

S.Ct. 2301 (emphasis added), a formal “delegation of

legal authority” goes beyond the “usual regulator/

regulated relationship,” id. at 156–57, 127 S.Ct. 2301.

Thus, Watson counsels that the “delegation of legal

authority . . . [to act] on the Government agency’s

behalf” satisfies § 1442(a)(1)’s “acting under” requirement. Id. at 156, 127 S.Ct. 2301.

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.

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

23a

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 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, 127 S.Ct.

2301 (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, 127 S.Ct. 2301. It

follows that Airbus “act[s] under” the FAA.

24a

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 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, 127 S.Ct. 2301. “The critical point,” the

Solicitor General continued, “is that the individual

acts on behalf of the FAA Administrator in conducting

the inspection.” Id.

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 994–95. With respect, I believe the

majority is wrong.

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

25a

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.

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 988–90 (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

26a

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 “certification” conveys the agency’s

formal approval to the aircraft.

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, 127 S.Ct. 2301 (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, 127 S.Ct. 2301

(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, 127 S.Ct. 2301.

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 988–90. 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, 127 S.Ct. 2301. That

delegation goes well beyond the “usual regulator/

regulated relationship,” id. at 157, 127 S.Ct. 2301, and

27a

as a delegee Airbus “assist[s]” and “help[s] carry out”

the duties and tasks of the FAA, id. at 152, 127 S.Ct.

2301 (emphasis removed). Under the correct reading

of Watson, 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, 127 S.Ct. 2301 (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

The Ninth Circuit cases that the majority cites do not support

its conclusion. See Maj. Op. at 985–88 (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 987–88; 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.

28a

interpret section 1442 broadly in favor of removal.”

Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1252

(9th Cir. 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.

29a

APPENDIX B

UNITED STATES DISTRICT COURT,

D. NEVADA

————

Case No. 2:18-CV-912 JCM (GWF)

————

MARY RIGGS, et al.,

Plaintiff(s),

MATTHEW HECKER, et al.,

Defendant(s).

————

Signed 07/16/2018

————

ORDER

JAMES C. MAHAN, United States District Judge.

Presently before the court is plaintiff Mary Riggs

as personal representative of the estate of Jonathan

Neil Udall and Philip and Marlene Udall’s motion to

remand. (ECF No. 15). Specially-appearing defendant

Airbus Helicopters, Inc. (“AHI”) filed a response (ECF

No. 28), to which Riggs replied (ECF No. 37).

Also before the court is defendants Matthew Hecker,

Daniel Friedman, Brenda Halvorson, Geoffrey Edlund,

Elling Halvorson, John Becker, Elling Kent Halvorson,

Lon A. Halvorson, Papillon Airways, Inc., d/b/a Papillon

Grand Canyon Helicopters, Xebec LLC, and Scott Booth’s

(collectively, “the Papillon defendants”) motion to remand.

(ECF No. 19). AHI filed a response (ECF No. 28), to

which the Papillon defendants replied (ECF No. 38).

30a

I. Facts

The present action involves a dispute surrounding a

helicopter accident.

On March 2, 2018, Riggs commenced an action in

the Eighth Judicial District Court of Clark County,

Nevada, against several individual and entity defendants stemming from a February 10, 2018, helicopter

crash. (ECF No. 1, Ex. 2). In her claims against

AHI, Riggs alleges that the subject helicopter was

defectively designed in that the fuel system was not

crash-resistant. Id.

On May 18, 2018, AHI filed a petition for removal to

this court. Id. On June 8, 2018, Riggs filed a motion to

remand. (ECF No. 15). On June 15, 2018, the Papillon

defendants filed a motion to remand. (ECF No. 19). On

July 9, 2018, AHI filed a motion to dismiss Riggs’s

complaint for lack of personal jurisdiction.1 (ECF No.

36). Riggs subsequently filed a motion to defer briefing

on the motion to dismiss (ECF No. 39), and a motion

to shorten time (ECF No. 40).

AHI argues that the court should first consider its motion to

dismiss for lack of personal jurisdiction before addressing Riggs’s

motion to remand. See (ECF No. 36). AHI correctly states that

“the United States Supreme Court has held that a court can

resolve the issue of personal jurisdiction before addressing subject matter jurisdiction.” Id. at 3. In Ruhrgas v. Marathon Oil Co.,

526 U.S. 574, 587-88, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999), the

Court held that where “a district court has before it a straightforward personal jurisdiction issue presenting no complex

question of state law, and the alleged defect in subject matter

jurisdiction raises a difficult and novel question, the court does

not abuse its discretion by turning directly to personal jurisdiction.” Here, the subject matter jurisdiction inquiry does not involve

a complex question. Therefore, the court will address Riggs’s motion

to remand before considering AHI’s motion to dismiss. See id.

31a

II. Legal Standard

Federal courts are courts of limited jurisdiction.

Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365,

374, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978). Pursuant to

28 U.S.C. § 1441(a), “any civil action brought in a State

court of which the district courts of the United States

have original jurisdiction, may be removed by the

defendant or the defendants, to the district court of the

United States for the district and division embracing

the place where such action is pending.” 28 U.S.C.

§ 1441(a).

Procedurally, a defendant has thirty (30) days upon

notice of removability to remove a case to federal court.

Durham v. Lockheed Martin Corp., 445 F.3d 1247,

1250 (9th Cir. 2006) (citing 28 U.S.C. § 1446(b)(2)).

Defendants are not charged with notice of removability “until they’ve received a paper that gives them

enough information to remove.” Id. at 1251.

Specifically, “the ‘thirty day time period [for

removal] . . . starts to run from defendant’s receipt of

the initial pleading only when that pleading affirmatively reveals on its face’ the facts necessary for federal

court jurisdiction.” Id. at 1250 (quoting Harris v.

Bankers Life & Casualty Co., 425 F.3d 689, 690-91 (9th

Cir. 2005) (alterations in original)). “Otherwise, the

thirty-day clock doesn’t begin ticking until a defendant

receives ‘a copy of an amended pleading, motion, order

or other paper’ from which it can determine that the

case is removable.” Id. (quoting 28 U.S.C. § 1446(b)(3)).

A plaintiff may challenge removal by timely filing a

motion to remand. 28 U.S.C. § 1447(c). Remand to

state court is proper if the district court lacks jurisdiction. Id. “A federal court is presumed to lack jurisdiction

in a particular case unless the contrary affirmatively

32a

appears.” Stock West, Inc. v. Confederated Tribes of

Colville Reservation, 873 F.2d 1221, 1225 (9th Cir.

1989). Thus, federal subject matter jurisdiction must

exist at the time an action is commenced. Mallard

Auto. Grp., Ltd. v. United States, 343 F.Supp.2d 949,

952 (D. Nev. 2004) (citing Morongo Band of Mission

Indians v. Cal. State Bd. of Equalization, 858 F.2d

1376, 1380 (9th Cir.1988)).

On a motion to remand, the removing defendant

faces a strong presumption against removal, and bears

the burden of establishing that removal is proper.

Sanchez v. Monumental Life Ins. Co., 102 F.3d 398,

403-04 (9th Cir. 1996); Gaus v. Miles, Inc., 980 F.2d

564, 566-67 (9th Cir. 1992).

III. Discussion

a. Federal officer removal statute

In the notice of removal, AHI argues that this action

is removable because this court has subject matter

jurisdiction pursuant to 28 U.S.C. § 1442. See (ECF

No. 1). AHI contends that this action is removable

“because the action involves a person that acted under

the authority of an officer or agency of the United

States.” Id. at 3.

28 U.S.C. § 1442(a)(1), known as the federal officer

removal statute, offers a federal forum to “[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.”

A party seeking removal under § 1442(a)(1) must

demonstrate that “(a) it is a person within the meaning of the statute; (b) there is a causal nexus between

33a

its actions, taken pursuant to a federal officer’s direction, and plaintiff’s claims; and (c) it can assert a

colorable federal defense.” Durham v. Lockheed Martin

Corp., 445 F.3d 1247, 1251 (9th Cir. 2006). Here, the

parties dispute whether AHI satisfies § 1442(a)(1)’s

“acting under” requirement.2

i. Whether AHI satisfies § 1442(a)(1)’s “acting

under” requirement

The federal officer removal statute extends removal

authority only to persons acting under an officer of the

United States. See 28 U.S.C. § 1442(a)(1). A private

person must assist or help carry out the duties or tasks

of a federal supervisor in order to qualify as a person

“acting under” a federal officer. See Watson v. Philip

Morris Cos., 551 U.S. 142, 152, 127 S.Ct. 2301, 168

L.Ed.2d 42 (2007).

In Watson, the Supreme Court clarified the scope of

§ 1442(a)(1) as applied to private actors in highly

regulated industries. Watson, 551 U.S. at 145, 127

S.Ct. 2301. Plaintiff Lisa Watson filed a class action

lawsuit against defendant Philip Morris, claiming that

the company violated Arkansas law by misrepresenting the amount of tar and nicotine in cigarettes

branded as “light.” Id. at 146, 127 S.Ct. 2301. The

defendant removed the case to federal court, contending that it was “acting under” the direct control

of regulations promulgated by the Federal Trade

Commission, thereby triggering the application of

§ 1442(a)(1). Id. The district court denied plaintiff’s

The parties do not dispute that AHI is a person under the

statute. See 1 U.S.C. § 1 (“in determining the meaning of an Act

of Congress, unless the context indicates otherwise . . . the words

‘person’ and ‘whoever’ include corporations, companies, and associations.”).

34a

motion to remand and the Eighth Circuit affirmed. Id.

at 147, 127 S.Ct. 2301.

In reversing the Eighth Circuit, the Court acknowledged the statutory requirement to broadly construe

§ 1442(a)(1), but stated that such construction is not

without boundaries. Id. “Broad language is not limitless. And a liberal construction nonetheless can find

limits in a text’s language, context, history, and

purposes.” Id. In limiting the scope of § 1442(a)(1), the

Court warned against granting manufacturers access

to federal courts merely because of their participation

in highly regulated industries:

In our view the help of assistance necessary to

bring a private person within the scope of the

statute does not include simply complying with

the law. The upshot is that a highly regulated firm

cannot find a statutory basis for removal in the

fact of federal regulation alone. A private firm’s

compliance (or noncompliance) with federal laws,

rules, and regulations does not by itself fall within

the scope of the statutory phrase “acting under” a

federal “official.”

Id. at 152-53. The Court held that a company does not

act under a federal officer merely by complying with

federal law and regulations in a heavily regulated

industry. See id. at 153, 157, 127 S.Ct. 2301.

The Ninth Circuit has not directly addressed

§ 1442(a)(1) removal based on an FAA designation.

However, the Seventh Circuit recently applied Watson

to a § 1442(a)(1) removal claim by an aircraft manufacturer in Lu Junhong v. Boeing Co, 792 F.3d 805, 806

(7th. Cir. 2015). In Lu Junhong, Boeing argued that it

was acting under the FAA because: “(1) the FAA has

granted Boeing authority to use FAA-approved proce-

35a

dures to conduct analysis and testing for the issuance

of type, production, and airworthiness certifications

for aircraft under Federal Aviation Regulations; and

(2) FAA Order 8100.9A authorizes and requires it

to analyze the adequacy of its autopilot and autothrottle

systems and certify that they meet the regulatory

requirements of 14 C.F.R. § 25.1309.” Id.

The Seventh Circuit rejected Boeing’s argument

that it was entitled to removal under § 1442(a)(1).

Id. at 808. The court held that “certifications just

demonstrate a person’s awareness of the governing

requirements and evince a belief in compliance.” Id.

Moreover, a “figure of speech [referring to certifications] does not make someone a federal officer or

person ‘acting under’ one.” Id. at 808-09. Instead, the

Seventh Circuit held that “we know from Watson v.

Phillip Morris Cos., 551 U.S. 142, 127 S.Ct. 2301, 168

L.Ed.2d 42 (2007), 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 (internal citation omitted).

Moreover, several districts courts have confronted

similar arguments for removal in the aviation context.

The majority of those courts has remanded the cases

to state court. See, e.g., Dietz v. Avco Corp., 168

F.Supp.3d 747, 755 (E.D. Pa. 2016) (holding that the

defendants did not act under a federal officer when

manufacturing and designing engine components pursuant to FAA authorization under 49 U.S.C. § 44702(d));

Swanstrom v. Teledyne Cont’l Motors, Inc., 531

F.Supp.2d 1325, 1333 (S.D. Ala. 2008) (holding that a

defendant cannot claim removal under § 1442(a)(1)

simply because it has employees who are designated

FAA authorized agents); Vandeventer v. Guimond, 494

36a

F.Supp.2d 1255, 1267 (D. Kan. 2007) (holding that a

defendant did not stand in the shoes of the FAA, or act

under a federal officer or agency, when he conducted

airworthiness inspection and certification).

Conversely, several district courts have recognized

the government contractor defense in denying motions

to remand.3 See, e.g., Beckwith v. Gen. Elec. Co., No.

09-cv-0216, 2010 U.S. Dist. LEXIS 30360, 2010 WL

1287095 (D. Conn. Mar. 30, 2010) (denying motion to

remand as defendant properly alleged government

contractor defense); Boyd v. Boeing Co., No. 15-cv0025, 2015 WL 4371928, 2015 U.S. Dist. LEXIS 91226

(E.D. La. July 14, 2015) (same). However, the Court in

Watson distinguished the government contractor defense

from compliance by holding that “the assistance that

private contractors provide federal officers goes beyond

simple compliance with the law and helps officers

fulfill other basic governmental tasks.” 551 U.S. at

153, 127 S.Ct. 2301.

Here, AHI argues that, as a holder of a Federal

Aviation Administration (“FAA”) Organization Designation Authorization (“ODA”), it “acted under” the

authority of the FAA with respect to the claims Riggs

asserts against it. (ECF No. 1 at 3). This authorization

from the FAA to AHI is governed by 49 U.S.C.

§ 44702(d), which provides that the FAA “may

delegate to a qualified person or to an employee under

the supervision of that person, a matter related to: (A)

the examination, testing, and inspection necessary to

In Durham, the Ninth Circuit dealt with federal contractor

immunity. Durham v. Lockheed Martin Corp., 445 F.3d 1247,

1251 (9th Cir. 2006) (“Lockheed, like other federal military

contractors, performs some activities on military bases that are

protected by federal contractor immunity, and others that are

not.”).

37a

issue a certificate under this chapter [49 U.S.C.

§§ 44710, et seq.]; and (B) issuing the certificate.” 49

U.S.C. § 44702(d).

AHI contends that the FAA delegation satisfies the

“acting under” requirement because AHI “acts on

behalf of and assists the FAA in the performance of the

agency’s federal mandate.” (ECF No. 19 at 9). As an

FAA designee, AHI “conducts the examination, testing,

and inspection necessary to issue STCs, subject to the

FAA’s comprehensive and regular oversight.”4 Id. In

light of these responsibilities, AHI argues that it “does

more than just comply with the comprehensive and

pervasive FAA regulatory scheme – it assists the FAA

and helps carry out the FAA’s functions – and this

removal is based on much more than mere compliance

with the regulatory regime.” Id. at 9-10.

AHI extensively cites Watson in its response and

argues that removal in this case is consistent with the

Court’s interpretation of § 1442(a)(1)’s scope. See id.

AHI correctly notes that “the U.S. Supreme Court in

Watson held that compliance with regulations alone is

insufficient for removal under § 1442(a)(1).” Id. at 10.

Moreover, AHI referenced a distinction drawn by the

Court, stating that “the Watson Court held that the

‘fatal flaw’ in Phillip Morris’s assertion of delegated

authority was one of ‘omission’: there was ‘no evidence

of any delegation of legal authority from the FTC to

the industry association to undertake testing on the

An STC is a supplemental type certificate. (ECF No. 1). STCs

are required by the FAA in order for someone other than the type

certificate holder to make major design changes to any typecertified aircraft. Id. AHI held an STC for the helicopter at issue

in the present dispute. Id.

38a

Government agency’s behalf.’” Id. at 11. (citation

omitted).

AHI argues that the “fundamental distinction between

the FAA scheme here – where AHI was formally

delegated authority by the FAA, and the tobacco

industry regime in Watson – where no such delegation

occurred – is the reason why removal here is

appropriate.” Id. AHI notes that “both in its amicus

brief and at oral argument [in Watson], the U.S.

solicitor general offered the FAA’s delegation scheme

as the ‘proper’ application of the federal officer

removal statute.” Id.

The Seventh Circuit, in Lu Junhong, addressed a

similar argument. 792 F.3d at 810. “Boeing points to

49 U.S.C. § 44702(d)(1), which permits the FAA to

conserve its resources by transferring some checking

and certification functions to manufactures, and the

FAA used that power in Order 8100.9A.” Id. In

rejecting Boeing’s contention, the Seventh Circuit held

that “this 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 meets the FAA’s standards; it does not permit Boeing to use gear that meets

Boeing’s self-adopted criteria.” Id. Further, the court

held that “when discussing the possibility that delegation might create ‘acting under’ status, the Court

mentioned rule making rather than rule compliance as

the key ingredient, and the FAA’s order does not allow

Boeing to change substantive rules.” Id. (internal

citation omitted).

Here, the FAA delegation under 49 U.S.C. § 44702(d)(1)

does not allow AHI to create or change substantive

rules. See 49 U.S.C. § 44702(d)(1). Moreover, the

delegation does not allow AHI to manufacture gear

39a

that meets its own self-adopted criteria. See id.; see

also Lu Junhong, 792 F.3d at 810. Rather, the relevant

regulation provides that “each applicant must make

all inspections and tests necessary to determine (1)

compliance with the applicable airworthiness, aircraft

noise, fuel venting, and exhaust emission requirements.” 14 C.F.R. § 21.33. Therefore, AHI’s activities

pursuant to its FAA delegation are rule compliance

rather than rule making. See Lu Junhong, 792 F.3d at

810.

AHI additionally argues that “[district] courts within

the Ninth Circuit that have considered an FAA organizational designee’s status have held that such entities

act under the FAA for the purposes of § 1442(a)(1).”

(ECF No. 28 at 13). AHI correctly notes that several

district courts have held that § 1442(a)(1) removal is

proper for a party acting pursuant to an FAA delegation under 49 U.S.C. § 44702(d). See, e.g., Hecker v.

Robinson Helicopter Co., No. 13-cv-03006, 2013 WL

5674982, at *2, 2013 U.S. Dist. LEXIS 149788, at *2

(E.D. Wash. Oct. 17, 2013) (holding that a defendant’s

ODA issued under § 44702(d) confers federal status as

to any acts undertaken pursuant to that authority);

AIG Europe (UK) Ltd. v. McDonnell Douglas Corp.,

2003 WL 257702, at *3, 2003 U.S. Dist. LEXIS 1770,

at *2 (C.D. Cal. Jan. 28, 2003) (same).

Notably, AHI cites cases that relied on Magnin v.

Teledyn Cont’l Motors, 91 F.3d 1424 (11th Cir. 1996),

which predated Watson. The Seventh Circuit, in

Lu Junhong, held that “we think that Magnin is

inconsistent with Watson and cannot be considered

authoritative.” 792 F.3d at 810. The court agrees.

Further, the cases cited by AHI do not reference

Watson. See Hecker, 2013 WL 5674982, at *2, 2013

U.S. Dist. LEXIS 149888, at *2; see also AIG Europe

40a

(UK) Ltd., 2003 WL 257702, at *3, 2003 U.S. Dist.

LEXIS 1770, at *2. Therefore, the cases cited by AHI

are unpersuasive.

The court holds that AHI does not satisfy § 1442(a)(1)’s

“acting under” requirement. See Lu Junhong, 792 F.3d

at 810. Therefore, removal is improper in this case. See

Durham, 445 F.3d at 1251.

IV. Conclusion

The court will grant the pending motions to remand.

The remaining outstanding motions are therefore

moot.

Accordingly,

IT IS HEREBY ORDERED, ADJUDGED, and

DECREED that Riggs’s motion to remand (ECF No.

15) be, and the same hereby is, GRANTED.

IT IS FURTHER ORDERED that the Papillon

defendants’ motion to remand (ECF No. 19) be, and

the same hereby is, GRANTED.

IT IS FURTHER ORDERED that this case be, and

the same hereby is, REMANDED to the Eighth

Judicial District Court of Clark County, Nevada.

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APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

[Filed November 21, 2019]

————

No. 18-16396

D.C. No. 2:18-cv-00912-JCM-GWF

District of Nevada, Las Vegas

————

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.

————

ORDER

————

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Before:

SCHROEDER,

O’SCANNLAIN,

RAWLINSON, Circuit Judges.

and

Judge Rawlinson voted to deny the Petition for

Rehearing or Rehearing En Banc.

Judge Schroeder voted to deny the Petition for

Rehearing and recommended denying the Petition for

Rehearing En Banc.

Judge O’Scannlain voted to grant the Petition for

Rehearing and recommended granting the Petition for

Rehearing En Banc.

The full court has been advised of the Petition for

Rehearing En Banc, and no judge of the court has

requested a vote.

The Petition for Rehearing or Rehearing En Banc,

filed October 25, 2019, is DENIED.

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APPENDIX D

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

————

28 U.S.C. § 1442. Federal officers or agencies

sued or prosecuted

(a) A civil action or criminal prosecution that is

commenced in a State court and that is against or

directed to any of the following may be removed by

them to the district court of the United States for the

district and division embracing the place wherein it is

pending:

(1) The United States or any agency thereof or any

officer (or any person acting under that officer) of the

United States or of any agency thereof, in an official

or individual capacity, for or relating to any act

under color of such office or on account of any right,

title or authority claimed under any Act of Congress

for the apprehension or punishment of criminals or

the collection of the revenue.

(2) A property holder whose title is derived from any

such officer, where such action or prosecution affects

the validity of any law of the United States.

(3) Any officer of the courts of the United States, for

or relating to any act under color of office or in the

performance of his duties;

(4) Any officer of either House of Congress, for or

relating to any act in the discharge of his official duty

under an order of such House.

(b) A personal action commenced in any State court

by an alien against any citizen of a State who is, or at

the time the alleged action accrued was, a civil officer

44a

of the United States and is a nonresident of such State,

wherein jurisdiction is obtained by the State court by

personal service of process, may be removed by the

defendant to the district court of the United States for

the district and division in which the defendant was

served with process.

removal under subsection (a), a law enforcement

officer, who is the defendant in a criminal prosecution,

shall be deemed to have been acting under the color of

his office if the officer—

(1) protected an individual in the presence of the

officer from a crime of violence;

(2) provided immediate assistance to an individual

who suffered, or who was threatened with, bodily

harm; or

(3) prevented the escape of any individual who the

officer reasonably believed to have committed, or

was about to commit, in the presence of the officer, a

crime of violence that resulted in, or was likely to

result in, death or serious bodily injury.

(d) In this section, the following definitions apply:

(1) The terms “civil action” and “criminal prosecution” include any proceeding (whether or not ancillary to another proceeding) to the extent that in such

proceeding a judicial order, including a subpoena

for testimony or documents, is sought or issued. If

removal is sought for a proceeding described in the

previous sentence, and there is no other basis for

removal, only that proceeding may be removed to the

district court.

(2) The term “crime of violence” has the meaning

given that term in section 16 of title 18.

45a

(3) The term “law enforcement officer” means any

employee described in subparagraph (A), (B), or (C)

of section 8401(17) of title 5 and any special agent in

the Diplomatic Security Service of the Department

of State.

(4) The term “serious bodily injury” has the

meaning given that term in section 1365 of title 18.

(5) The term “State” includes the District of

Columbia, United States territories and insular

possessions, and Indian country (as defined in

section 1151 of title 18).

(6) The term “State court” includes the Superior

Court of the District of Columbia, a court of a United

States territory or insular possession, and a tribal

court.

49 U.S.C. § 44701. General requirements

(a) Promoting safety.—The Administrator of the

Federal Aviation Administration shall promote safe

flight of civil aircraft in air commerce by prescribing—

(1) minimum standards required in the interest of

safety for appliances and for the design, material,

construction, quality of work, and performance of

aircraft, aircraft engines, and propellers;

(2) regulations and minimum standards in the

interest of safety for—

(A) inspecting, servicing, and overhauling aircraft, aircraft engines, propellers, and appliances;

(B) equipment and facilities for, and the timing

and manner of, the inspecting, servicing, and

overhauling; and

46a

officer or employee of the Administration, to

examine and report on the inspecting, servicing,

and overhauling;

(3) regulations required in the interest of safety for

the reserve supply of aircraft, aircraft engines, propellers, appliances, and aircraft fuel and oil, including the reserve supply of fuel and oil carried in

flight;

(4) regulations in the interest of safety for the maximum hours or periods of service of airmen and other

employees of air carriers; and

(5) regulations and minimum standards for other

practices, methods, and procedure the Administrator finds necessary for safety in air commerce and

national security.

(b) Prescribing minimum safety standards.—The

Administrator may prescribe minimum safety standards for—

(1) an air carrier to whom a certificate is issued

under section 44705 of this title; and

(2) operating an airport serving any passenger

operation of air carrier aircraft designed for at least

31 passenger seats.

tends to reduce or eliminate the possibility or recurrence of accidents in air transportation. However, the

Administrator is not required to give preference either

to air transportation or to other air commerce in carrying out this chapter.

47a

(d) Considerations and classification of regulations

and standards.—When prescribing a regulation or

standard under subsection (a) or (b) of this section

or any of sections 44702-44716 of this title, the

Administrator shall—

(1) consider—

(A) the duty of an air carrier to provide service

with the highest possible degree of safety in the

public interest; and

(B) differences between air transportation and

other air commerce; and

(2) classify a regulation or standard appropriate to

the differences between air transportation and other

air commerce.

(e) Bilateral exchanges of safety oversight responsibilities.—

(1) In general.—Notwithstanding the provisions of

this chapter, the Administrator, pursuant to Article

83 bis of the Convention on International Civil Aviation and by a bilateral agreement with the aeronautical authorities of another country, may exchange

with that country all or part of their respective

functions and duties with respect to registered aircraft under the following articles of the Convention:

Article 12 (Rules of the Air); Article 31 (Certificates

of Airworthiness); or Article 32a (Licenses of Personnel).

(2) Relinquishment and acceptance of responsibility.—The Administrator relinquishes responsibility

with respect to the functions and duties transferred

by the Administrator as specified in the bilateral

agreement, under the Articles listed in paragraph

(1) for United States-registered aircraft described in

48a

paragraph (4)(A) transferred abroad and accepts

responsibility with respect to the functions and

duties under those Articles for aircraft registered

abroad and described in paragraph (4)(B) that are

transferred to the United States.

(3) Conditions.—The Administrator may predicate,

in the agreement, the transfer of functions and

duties under this subsection on any conditions the

Administrator deems necessary and prudent, except

that the Administrator may not transfer responsibilities for United States registered aircraft described in paragraph (4)(A) to a country that the

Administrator determines is not in compliance with

its obligations under international law for the safety

oversight of civil aviation.

(4) Registered aircraft defined.—In this subsection,

the term “registered aircraft” means—

(A) aircraft registered in the United States and

operated pursuant to an agreement for the lease,

charter, or interchange of the aircraft or any similar arrangement by an operator that has its

principal place of business or, if it has no such

place of business, its permanent residence in

another country; and

(B) aircraft registered in a foreign country and

operated under an agreement for the lease, charter, or interchange of the aircraft or any similar

arrangement by an operator that has its principal

place of business or, if it has no such place of

business, its permanent residence in the United

States.

49a

(5) Foreign airworthiness directives.—

(A) Acceptance.—Subject to subparagraph (D),

the Administrator may accept an airworthiness

directive, as defined in section 39.3 of title 14,

Code of Federal Regulations, issued by an aeronautical safety authority of a foreign country, and

leverage that authority’s regulatory process, if—

(i) the country is the state of design for the

product that is the subject of the airworthiness

directive;

(ii) the United States has a bilateral safety

agreement relating to aircraft certification with

the country;

(iii) as part of the bilateral safety agreement

with the country, the Administrator has determined that such aeronautical safety authority

has an aircraft certification system relating to

safety that produces a level of safety equivalent

to the level produced by the system of the

Federal Aviation Administration;

(iv) the aeronautical safety authority of the

country utilizes an open and transparent notice

and comment process in the issuance of airworthiness directives; and

(v) the airworthiness directive is necessary to

provide for the safe operation of the aircraft

subject to the directive.

(B) Alternative approval process.—Notwithstanding subparagraph (A), the Administrator

may issue a Federal Aviation Administration

airworthiness directive instead of accepting an

airworthiness directive otherwise eligible for

acceptance under such subparagraph, if the

50a

Administrator determines that such issuance is

necessary for safety or operational reasons due to

the complexity or unique features of the Federal

Aviation Administration airworthiness directive

or the United States aviation system.

Administrator may—

compliance.—The

(i) accept an alternative means of compliance,

with respect to an airworthiness directive

accepted under subparagraph (A), that was

approved by the aeronautical safety authority of

the foreign country that issued the airworthiness directive; or

(ii) notwithstanding subparagraph (A), and at

the request of any person affected by an airworthiness directive accepted under such subparagraph, approve an alternative means of

compliance with respect to the airworthiness

directive.

(D) Limitation.—The Administrator may not

accept an airworthiness directive issued by an

aeronautical safety authority of a foreign country

if the airworthiness directive addresses matters

other than those involving the safe operation of an

aircraft.

(f) Exemptions.—The Administrator may grant an

exemption from a requirement of a regulation prescribed under subsection (a) or (b) of this section or any

of sections 44702-44716 of this title if the Administrator finds the exemption is in the public interest.

51a

49 U.S.C. § 44702. Issuance of certificates

(a) General authority and applications.—The Administrator of the Federal Aviation Administration may

issue airman certificates, design organization certificates, type certificates, production certificates, airworthiness certificates, air carrier operating certificates, airport operating certificates, air agency certificates, and air navigation facility certificates under this

chapter. An application for a certificate must—

(1) be under oath when the Administrator requires;

and

(2) be in the form, contain information, and be filed

and served in the way the Administrator prescribes.

(b) Considerations.—When issuing a certificate under

this chapter, the Administrator shall—

(1) consider—

(A) the duty of an air carrier to provide service

with the highest possible degree of safety in the

public interest; and

(B) differences between air transportation and

other air commerce; and

(2) classify a certificate according to the differences

between air transportation and other air commerce.

authorize an aircraft, aircraft engine, propeller, or

appliance for which a certificate has been issued

authorizing the use of the aircraft, aircraft engine,

propeller, or appliance in air transportation to be used

in air commerce without another certificate being

issued.

52a

(d) Delegation.—

(1) Subject to regulations, supervision, and review

the Administrator may prescribe, the Administrator

may delegate to a qualified private person, or to an

employee under the supervision of that person, a

matter related to—

(A) the examination, testing, and inspection

necessary to issue a certificate under this chapter;

and

(B) issuing the certificate.

(2) The Administrator may rescind a delegation

under this subsection at any time for any reason the

Administrator considers appropriate.

(3) A person affected by an action of a private

person under this subsection may apply for

reconsideration of the action by the Administrator.

On the Administrator’s own initiative, the Administrator may reconsider the action of a private

person at any time. If the Administrator decides on

reconsideration that the action is unreasonable or

unwarranted, the Administrator shall change,

modify, or reverse the action. If the Administrator

decides the action is warranted, the Administrator

shall affirm the action.

49 U.S.C. § 44704. Type certificates, production

certificates, airworthiness certificates, and

design and production organization certificates

(a) Type certificates.—

(1) Issuance, investigations, and tests.—The

Administrator of the Federal Aviation Administration shall issue a type certificate for an aircraft,

aircraft engine, or propeller, or for an appliance

53a

specified under paragraph (2)(A) of this subsection

when the Administrator finds that the aircraft,

aircraft engine, propeller, or appliance is properly

designed and manufactured, performs properly, and

meets the regulations and minimum standards prescribed under section 44701(a) of this title. On

receiving an application for a type certificate, the

Administrator shall investigate the application and

may conduct a hearing. The Administrator shall

make, or require the applicant to make, tests the

Administrator considers necessary in the interest of

safety.

(2) Specifications.—The Administrator may—

(A) specify in regulations those appliances that

reasonably require a type certificate in the

interest of safety;

(B) include in a type certificate terms required in

the interest of safety; and

(C) record on the certificate a numerical specification of the essential factors related to the performance of the aircraft, aircraft engine, or propeller

for which the certificate is issued.

(3) Special rules for new aircraft and appliances.—

Except as provided in paragraph (4), if the holder of

a type certificate agrees to permit another person to

use the certificate to manufacture a new aircraft,

aircraft engine, propeller, or appliance, the holder

shall provide the other person with written evidence, in a form acceptable to the Administrator, of

that agreement. Such other person may manufacture a new aircraft, aircraft engine, propeller, or

appliance based on a type certificate only if such

other person is the holder of the type certificate or

has permission from the holder.

54a

(4) Limitation for aircraft manufactured before

August 5, 2004.—Paragraph (3) shall not apply to a

person who began the manufacture of an aircraft

before August 5, 2004, and who demonstrates to the

satisfaction of the Administrator that such

manufacture began before August 5, 2004, if the

name of the holder of the type certificate for the

aircraft does not appear on the airworthiness

certificate or identification plate of the aircraft. The

holder of the type certificate for the aircraft shall not

be responsible for the continued airworthiness of the

aircraft. A person may invoke the exception

provided by this paragraph with regard to the

manufacture of only one aircraft.

(5) Release of data.—

(A) In general.—Notwithstanding any other

provision of law, the Administrator may make

available upon request, to a person seeking to

maintain the airworthiness or develop product

improvements of an aircraft, engine, propeller, or

appliance, engineering data in the possession of

the Administration relating to a type certificate or

a supplemental type certificate for such aircraft,

engine, propeller, or appliance, without the consent of the owner of record, if the Administrator

determines that—

(i) the certificate containing the requested data

has been inactive for 3 or more years, except

that the Administrator may reduce this time if

required to address an unsafe condition associated with the product;

(ii) after using due diligence, the Administrator

is unable to find the owner of record, or the

55a

owner of record’s heir, of the type certificate or

supplemental type certificate; and

(iii) making such data available will enhance

aviation safety.

(B) Engineering data defined.—In this section,

the term “engineering data” as used with respect

to an aircraft, engine, propeller, or appliance

means type design drawing and specifications for

the entire aircraft, engine, propeller, or appliance

or change to the aircraft, engine, propeller, or

appliance, including the original design data, and

any associated supplier data for individual parts

or components approved as part of the particular

certificate for the aircraft, engine, propeller, or

appliance.

possession of the Administration relating to a type

certificate or a supplemental type certificate that

has been inactive for 3 or more years.

(6) Type certification resolution process.—

(A) In general.—Not later than 15 months after

the date of enactment of the FAA Reauthorization

Act of 2018, the Administrator shall establish an

effective, timely, and milestone-based issue resolution process for type certification activities

under this subsection.

(B) Process requirements.—The resolution process shall provide for—

(i) resolution of technical issues at preestablished stages of the certification process,

as agreed to by the Administrator and the type

certificate applicant;

56a

(ii) automatic elevation to appropriate management personnel of the Federal Aviation Administration and the type certificate applicant of

any major certification process milestone that is

not completed or resolved within a specific

period of time agreed to by the Administrator

and the type certificate applicant; and

(iii) resolution of a major certification process

milestone elevated pursuant to clause (ii)

within a specific period of time agreed to by the

Administrator and the type certificate applicant.

In this paragraph, the term “major certification

process milestone” means a milestone related to a

type certification basis, type certification plan,

type inspection authorization, issue paper, or

other major type certification activity agreed to by

the Administrator and the type certificate

applicant.

(b) Supplemental type certificates.—

(1) Issuance.—The Administrator may issue a type

certificate designated as a supplemental type certificate for a change to an aircraft, aircraft engine,

propeller, or appliance.

(2) Contents.—A supplemental type certificate

issued under paragraph (1) shall consist of the

change to the aircraft, aircraft engine, propeller, or

appliance with respect to the previously issued type

certificate for the aircraft, aircraft engine, propeller,

or appliance.

(3) Requirement.—If the holder of a supplemental

type certificate agrees to permit another person to

57a

use the certificate to modify an aircraft, aircraft

engine, propeller, or appliance, the holder shall

provide the other person with written evidence, in a

form acceptable to the Administrator, of that agreement. A person may change an aircraft, aircraft

engine, propeller, or appliance based on a supplemental type certificate only if the person requesting

the change is the holder of the supplemental type

certificate or has permission from the holder to

make the change.

issue a production certificate authorizing the production of a duplicate of an aircraft, aircraft engine,

propeller, or appliance for which a type certificate has

been issued when the Administrator finds the duplicate will conform to the certificate. On receiving an

application, the Administrator shall inspect, and may

require testing of, a duplicate to ensure that it

conforms to the requirements of the certificate. The

Administrator may include in a production certificate

terms required in the interest of safety.

(d) Airworthiness certificates.—

(1) The registered owner of an aircraft may apply to

the Administrator for an airworthiness certificate

for the aircraft. The Administrator shall issue an

airworthiness certificate when the Administrator

finds that the aircraft conforms to its type certificate

and, after inspection, is in condition for safe operation. The Administrator shall register each airworthiness certificate and may include appropriate

information in the certificate. The certificate number or other individual designation the Administrator requires shall be displayed on the aircraft. The

Administrator may include in an airworthiness

certificate terms required in the interest of safety.

58a

(2) A person applying for the issuance or renewal of

an airworthiness certificate for an aircraft for which

ownership has not been recorded under section

44107 or 44110 of this title must submit with the

application information related to the ownership of

the aircraft the Administrator decides is necessary

to identify each person having a property interest in

the aircraft and the kind and extent of the interest.

(e) Design and production organization certificates.—

(1) Issuance.—Beginning January 1, 2013, the

Administrator may issue a certificate to a design

organization, production organization, or design and

production organization to authorize the organization to certify compliance of aircraft, aircraft

engines, propellers, and appliances with the

requirements and minimum standards prescribed

under section 44701(a). An organization holding a

certificate issued under this subsection shall be

known as a certified design and production

organization (in this subsection referred to as a

“CDPO”).

(2) Applications.—On receiving an application for a

CDPO certificate, the Administrator shall examine

and rate the organization submitting the application, in accordance with regulations to be prescribed

by the Administrator, to determine whether the

organization has adequate engineering, design, and

production capabilities, standards, and safeguards

to make certifications of compliance as described in

paragraph (1).

(3) Issuance of certificates based on CDPO

findings.—The Administrator may rely on certifications of compliance by a CDPO when making

determinations under this section.

59a

(4) Public safety.—The Administrator shall include

in a CDPO certificate terms required in the interest

of safety.

(5) No effect on power of revocation.—Nothing in

this subsection affects the authority of the Secretary

of Transportation to revoke a certificate.

14 C.F.R. § 21.21. Issue of type certificate:

normal, utility, acrobatic, commuter, and transport category aircraft; manned free balloons;

special classes of aircraft; aircraft engines;

propellers.

An applicant is entitled to a type certificate for an

aircraft in the normal, utility, acrobatic, commuter, or

transport category, or for a manned free balloon,

special class of aircraft, or an aircraft engine or

propeller, if—

(a) The product qualifies under § 21.27; or

(b) The applicant submits the type design, test

reports, and computations necessary to show that the

product to be certificated meets the applicable airworthiness, aircraft noise, fuel venting, and exhaust

emission requirements of this subchapter and any

special conditions prescribed by the FAA, and the FAA

finds—

(1) Upon examination of the type design, and after

completing all tests and inspections, that the type

design and the product meet the applicable noise,

fuel venting, and emissions requirements of this

subchapter, and further finds that they meet the

applicable airworthiness requirements of this subchapter or that any airworthiness provisions not

complied with are compensated for by factors that

provide an equivalent level of safety; and

60a

(2) For an aircraft, that no feature or characteristic

makes it unsafe for the category in which certification is requested.

14 C.F.R. § 21.33. Inspection and tests.

(a) Each applicant must allow the FAA to make any

inspection and any flight and ground test necessary to

determine compliance with the applicable requirements of this subchapter. However, unless otherwise

authorized by the FAA—

(1) No aircraft, aircraft engine, propeller, or part

thereof may be presented to the FAA for test unless

compliance with paragraphs (b)(2) through (b)(4) of

this section has been shown for that aircraft, aircraft

engine, propeller, or part thereof; and

(2) No change may be made to an aircraft, aircraft

engine, propeller, or part thereof between the time

that compliance with paragraphs (b)(2) through

(b)(4) of this section is shown for that aircraft, aircraft engine, propeller, or part thereof and the time

that it is presented to the FAA for test.

(b) Each applicant must make all inspections and

tests necessary to determine—

(1) Compliance with the applicable airworthiness,

aircraft noise, fuel venting, and exhaust emission

requirements;

(2) That materials and products conform to the

specifications in the type design;

(3) That parts of the products conform to the

drawings in the type design; and

61a

(4) That the manufacturing processes, construction

and assembly conform to those specified in the type

design.

14 C.F.R. § 21.93. Classification of changes in

type design.

(a) In addition to changes in type design specified in

paragraph (b) of this section, changes in type design

are classified as minor and major. A “minor change” is

one that has no appreciable effect on the weight, balance, structural strength, reliability, operational characteristics, or other characteristics affecting the airworthiness of the product. All other changes are

“major changes” (except as provided in paragraph (b)

of this section).

(b) For the purpose of complying with Part 36 of this

chapter, and except as provided in paragraphs (b)(2),

(b)(3), and (b)(4) of this section, any voluntary change

in the type design of an aircraft that may increase the

noise levels of that aircraft is an “acoustical change”

(in addition to being a minor or major change as classified in paragraph (a) of this section) for the following

aircraft:

(1) Transport category large airplanes.

(2) Jet (Turbojet powered) airplanes (regardless of

category). For airplanes to which this paragraph

applies, “acoustical changes” do not include changes

in type design that are limited to one of the

following—

(i) Gear down flight with one or more retractable

landing gear down during the entire flight, or

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(ii) Spare engine and nacelle carriage external to

the skin of the airplane (and return of the pylon

or other external mount), or

(iii) Time-limited engine and/or nacelle changes,

where the change in type design specifies that the

airplane may not be operated for a period of more

than 90 days unless compliance with the applicable acoustical change provisions of Part 36 of this

chapter is shown for that change in type design.

(3) Propeller driven commuter category and small

airplanes in the primary, normal, utility, acrobatic,

transport, and restricted categories, except for

airplanes that are:

(i) Designated for “agricultural aircraft operations” (as defined in § 137.3 of this chapter, effective January 1, 1966) to which § 36.1583 of this

chapter does not apply, or

(ii) Designated for dispensing fire fighting materials to which § 36.1583 of this chapter does not

apply, or

(iii) U.S. registered, and that had flight time prior

to January 1, 1955 or

(iv) Land configured aircraft reconfigured with

floats or skis. This reconfiguration does not permit

further exception from the requirements of this

section upon any acoustical change not enumerated in § 21.93(b).

(4) Helicopters except:

(i) Those helicopters that are designated exclusively:

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(A) For “agricultural aircraft operations”, as

defined in § 137.3 of this chapter, as effective on

January 1, 1966;

(B) For dispensing fire fighting materials; or

§ 133.1(b) of this chapter, as effective on

December 20, 1976.

(ii) Those helicopters modified by installation or

removal of external equipment. For purposes of

this paragraph, “external equipment” means any

instrument, mechanism, part, apparatus, appurtenance, or accessory that is attached to, or

extends from, the helicopter exterior but is not

used nor is intended to be used in operating or

controlling a helicopter in flight and is not part of

an airframe or engine. An “acoustical change”

does not include:

(A) Addition or removal of external equipment;

(B) Changes in the airframe made to accommodate the addition or removal of external equipment, to provide for an external load attaching

means, to facilitate the use of external equipment or external loads, or to facilitate the safe

operation of the helicopter with external equipment mounted to, or external loads carried by,

the helicopter;

addition or removal of floats and skis;

(D) Flight with one or more doors and/or

windows removed or in an open position; or

(E) Any changes in the operational limitations

placed on the helicopter as a consequence of the

addition or removal of external equipment,

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floats, and skis, or flight operations with doors

and/or windows removed or in an open position.

(5) Tiltrotors.

chapter, any voluntary change in the type design of the

airplane or engine which may increase fuel venting or

exhaust emissions is an “emissions change.”

14 C.F.R. § 21.97. Approval of major changes in

type design.

(a) An applicant for approval of a major change in

type design must—

(1) Provide substantiating data and necessary

descriptive data for inclusion in the type design;

(2) Show that the change and areas affected by the

change comply with the applicable requirements of

this subchapter, and provide the FAA the means by

which such compliance has been shown; and

(3) Provide a statement certifying that the

applicant has complied with the applicable requirements.

(b) Approval of a major change in the type design of

an aircraft engine is limited to the specific engine

configuration upon which the change is made unless

the applicant identifies in the necessary descriptive

data for inclusion in the type design the other

configurations of the same engine type for which

approval is requested and shows that the change is

compatible with the other configurations.

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14 C.F.R. § 21.113. Requirement for supplemental type certificate.

(a) If a person holds the TC for a product and alters

that product by introducing a major change in type

design that does not require an application for a new

TC under § 21.19, that person must apply to the FAA

either for an STC, or to amend the original type

certificate under subpart D of this part.

(b) If a person does not hold the TC for a product and

alters that product by introducing a major change in

type design that does not require an application for a

new TC under § 21.19, that person must apply to the

FAA for an STC.

form and manner prescribed by the FAA.

14 C.F.R. § 21.115. Applicable requirements.

(a) Each applicant for a supplemental type certificate

must show that the altered product meets applicable

requirements specified in § 21.101 and, in the case of

an acoustical change described in § 21.93(b), show

compliance with the applicable noise requirements of

part 36 of this chapter and, in the case of an emissions

change described in § 21.93(c), show compliance with

the applicable fuel venting and exhaust emissions

requirements of part 34 of this chapter.

(b) Each applicant for a supplemental type certificate

must meet §§ 21.33 and 21.53 with respect to each

change in the type design.

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14 C.F.R. § 21.117. Issue of supplemental type

certificates.

(a) An applicant is entitled to a supplemental type

certificate if the FAA finds that the applicant meets

the requirements of §§ 21.113 and 21.115.

(b) A supplemental type certificate consists of—

(1) The approval by the FAA of a change in the type

design of the product; and

(2) The type certificate previously issued for the

product.

14 C.F.R. § 183.41. Applicability and definitions.

(a) This subpart contains the procedures required to

obtain an Organization Designation Authorization,

which allows an organization to perform specified

functions on behalf of the Administrator related to

engineering, manufacturing, operations, airworthiness, or maintenance.

(b) Definitions. For the purposes of this subpart:

Organization Designation Authorization (ODA)

means the authorization to perform approved functions on behalf of the Administrator.

ODA Holder means the organization that obtains

the authorization from the Administrator, as identified in a Letter of Designation.

ODA Unit means an identifiable group of two or

more individuals within the ODA Holder’s organization that performs the authorized functions.

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[EXCERPTS]

70 Fed. Reg. 59,932

Rules and Regulations

Department of Transportation

Federal Aviation Administration

14 CFR Parts 21, 121, 135, 145, and 183

[Docket No. FAA-2003-16685;

Amendment Nos. 21-86, 121-311,

135-97, 145-23, and 183-12]

RIN 2120-AH79

Establishment of Organization

Designation Authorization Program

Thursday, October 13, 2005

AGENCY: Federal Aviation Administration (FAA),

DOT.

ACTION: Final rule.

SUMMARY: This final rule establishes the Organization Designation Authorization (ODA) program. The

ODA program expands the scope of approved tasks

available to organizational designees; increases the

number of organizations eligible for organizational

designee authorizations; and establishes a more comprehensive, systems-based approach to managing

designated organizations. This final rule also sets

phaseout dates for the current organizational designee

programs, the participants in which will be transitioned into the ODA program. This program is needed

as the framework for the FAA to standardize the

operation and oversight of organizational designees.

The effect of this program will be to increase the

efficiency with which the FAA appoints and oversees

designee organizations, and allow the FAA to

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concentrate its resources on the most safety-critical

matters.

DATES: This amendment becomes effective November

14, 2005. Affected parties, however, do not have to

comply with the information collection requirements

of §§ 183.43, 183.45, 183.53, 183.55, 183.57, 183.63, or

183.65 until the control number assigned by the Office

of Management and Budget (OMB) for this information collection requirement is published in the

Federal Register. Publication of the control number

notifies the public that OMB has approved this

information collection requirement under the Paperwork Reduction Act of 1995.

FOR FURTHER INFORMATION CONTACT: For

technical issues, Ralph Meyer, Delegation and Airworthiness Programs Branch, Aircraft Engineering

Division (AIR-140), Aircraft Certification Service,

Federal Aviation Administration, 6500 S. MacArthur

Blvd., ARB Room 308, Oklahoma City, OK, 73169;

telephone (405) 954-7072; facsimile (405) 954-2209,

e-mail ralph.meyer@faa.gov. For legal issues, Karen

Petronis, Office of the Chief Counsel, Regulations

Division (AGC-200), Federal Aviation Administration,

800 Independence Avenue, SW., Washington, DC

20591; telephone (202) 267-3073; facsimile (202) 2677971; e-mail karen.petronis@faa.gov.

SUPPLEMENTARY INFORMATION:

* * *

Authority for This Rulemaking

The FAA’s authority to issue rules about aviation

safety is found in Title 49 of the United States Code.

Subtitle I, Section 106 describes the authority of the

FAA Administrator. Subtitle VII, Aviation Programs,

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describes in more detail the scope of the agency’s

authority.

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Chapter 447—

Safety Regulation, Section 44702—Issuance of Certificates. Under paragraph 44702(d), the FAA Administrator may delegate to a qualified private person a

matter related to issuing certificates, or related to the

examination, testing, and inspection necessary to

issue a certificate he is authorized by statute to issue

under § 44702(a). Under paragraph (d), the Administrator is empowered to prescribe regulations and

other materials necessary for the supervision of

delegated persons. This regulation is within the scope

of that authority in that it establishes a

comprehensive program for the designation of

organizations in 14 CFR part 183.

Background

History of Designation Programs

Since at least 1927, the federal government has used

private persons to examine, test and inspect aircraft

as part of the system for managing aviation safety.

The current system of delegations has been evolving

since the need for assistance by private persons was

recognized over 70 years ago. Beginning in the 1940s,

the FAA’s predecessor agency, the Civil Aeronautics

Administration (CAA) established programs to

appoint designees to perform certain tasks for airman

approvals, airworthiness approvals and certification

approvals. These include the Designated Engineering

Representative (DER), Designated Manufacturing

Inspection Representative (DMIR), and Designated

Pilot Examiner (DPE) programs.

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In the 1950s, the rapid expansion of the aircraft

industry led to the adoption of the Delegation Option

Authorization (DOA) program to supplement the

agency’s limited resources for certification of small

airplanes, engines and propellers. As the first program

that delegated authority to an organization rather

than an individual, DOA was intended to take

advantage of the experience and knowledge inherent

in a manufacturer’s organization. Currently, DOAs

are authorized for certification and airworthiness

approvals for the products manufactured by the

authorization holder.

The Federal Aviation Act of 1958 established the

Federal Aviation Agency and codified the authority of

the Administrator to delegate certain matters in

section 314 of that Act. When that statute was

recodified in the 1990s, the delegation authority was

placed in 49 U.S.C. 44702(d) without substantive

change to the authority of the Administrator.

The 1960s saw the creation of the Designated

Alteration Station (DAS) Program, which was

intended to reduce delays in issuing supplemental

type certificates (STCs) by allowing the approved

engineering staffs of repair stations to issue STCs. As

adopted, the DAS program allows eligible air carriers,

commercial operators, domestic repair stations and

product manufacturers to issue STCs and related

airworthiness certificates.

In the 1970s the FAA reviewed its delegated

organization programs, which then allowed the

approval of major alteration data by a delegated

organization, but not approval of major repair data.

This review lead to the adoption of Special Federal

Aviation Regulation (SFAR) 36 in 1978 to allow

eligible air carriers, commercial operators, and domes-

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tic repair stations to develop and use major repair data

without FAA approval of the data.

In the 1980s, the FAA established the Designation

Airworthiness Representative (DAR) program to expand the airworthiness certification functions that

individual designees may perform. At the same time,

we allowed for organizations to serve as DARs, in a

program known as Organizational Designated Airworthiness Representatives (ODARs).

Since the formation of the first organizational

designee programs, organizational designees have

gained significant experience in aircraft certification

matters, and the FAA has gained significant experience in managing these designee programs. We have

found that the quality of the approvals processed by

these organizations equals those processed by the

FAA. Delegation of tasks to these organizations has

allowed the FAA to focus our limited resources on

more critical areas.

Status of Designees

In understanding these programs, we consider it

essential to remember that designees have a unique

status. While we refer to these persons and organizations informally as “designees”, under part 183 they

are referred to as “representatives of the Administrator.”

When acting as a representative of the Administrator, these persons or organizations are required to

perform in a manner consistent with the policies,

guidelines, and directives of the Administrator. When

performing a delegated function, designees are legally

distinct from and act independent of the organizations

that employ them. The authority of these representatives to act comes from an FAA delegation and not a

72a

certificate. As provided by statute, the Administrator

may at any time and for any reason, suspend or revoke

a delegation. This is true even though some parts of

the delegation regulations in part 183 and elsewhere

refer to kinds of certificates that denote the authority

granted.

An ODA issued under this program is a delegation

made under section 44702(d), not a statutorily authorized certificate issued under section 44702(a). The

authority of the Administrator to suspend, revoke, or

withhold ODA authorization is not subject to appeal to

the National Transportation Safety Board.

ODA Program Overview

The FAA is adopting the ODA program as a means

to provide more effective certification services to its

customers. This final rule adopts the regulatory basis

of the ODA program. Companion FAA orders, similar

to the draft Order made available for review, will

describe the specifics of the program and provide

guidance for FAA personnel and for organizations to

which we grant an ODA. These orders will also provide

information to FAA personnel on how to qualify,

appoint, and oversee organizations in the ODA program.

As aviation industry needs continue to expand at a

rate exceeding that of FAA resources, the need for the

ODA program has become more apparent. According

to a 1993 report by the General Accounting Office

(GAO/RCED-93-155), the FAA’s certification work has

increased five-fold over the last 50 years. The ODA

program is a consolidation and improvement of the

piecemeal organizational delegations that have developed on an “as needed” basis over the last half century.

As the FAA’s dependence on designees has increased,

73a

so has the need to oversee designated organizations

using a single, flexible set of procedures and a systems

approach to management. Using our experience with

both individual and organizational designees, we have

designed the ODA program with these criteria in

mind.

The ODA program improves the FAA’s ability to

respond to our steadily increasing workload by

expanding the scope of authorized functions of FAA

organizational designees, and by expanding eligibility

for organizational designees. One way this program

expands eligibility is by eliminating the requirement

that an organization hold some type of FAA certificate

before it would qualify for designation authorization.

The ODA program also allows the FAA to delegate

any statutorily authorized functions to qualified

organizations. Expansion of the available authorized

functions will reduce the time and cost for these

certification activities.

While our current delegations are limited to such

organizations as manufacturers, air carriers, commercial operators, and repair stations, this rule formalizes

the delegation of functions to any qualified organization. Accordingly, an organization with demonstrated

competence, integrity, and expertise in aircraft certification functions is eligible to apply for an ODA.

Creation of the ODA program aids the expansion of

the designee system by addressing the delegation of

more functions related to aircraft certification, and

new functions pertaining to certification and authorization of airmen, operators, and air agencies. For

general aviation operations, the rule allows an ODA

Unit member to issue airman certificates or authorizations under 14 CFR parts 61, 63, or 91. Additionally,

74a

the rule allows designated organizations to find compliance or conduct functions leading to the issuance of

certificates or authorizations for any statutorily

authorized function, including—

• Rotorcraft external load operations under 14

CFR part 133;

• Agricultural operations under 14 CFR part

137;

• Air agencies operations under 14 CFR part

141; and

• Training centers operators under 14 CFR part

142 (air carrier functions excluded).

Nothing in the establishment of the ODA program

changes any authority or responsibility for compliance

with the certification, airworthiness or operational

requirements currently in place, such as part 21 or

part 121. No current safety requirements are being

removed or relaxed. The ODA program does not

introduce any type of self-certification.

An Organization Designation Authorization

includes both an ODA Holder and an ODA Unit. The

ODA Holder is the parent organization to which the

FAA grants an ODA Letter of Designation. The ODA

Unit is an identifiable unit of two or more individuals

within the ODA Holder’s organization that performs

the authorized functions. The regulations specify

separate requirements for the ODA Holder and the

ODA Unit.

Because the ODA program eliminates the requirement that an applicant hold an FAA certificate, organizations consisting of consultant engineering and

inspection personnel could be eligible for an ODA.

Under such circumstances, it is possible the ODA

75a

Holder would have the same composition as the ODA

Unit.

ODA Program Policy

As noted earlier in this preamble, FAA orders will

outline the specifics of the ODA program and provide

guidance for both FAA personnel and for organizations

that obtain an ODA. These orders will describe the

authorized functions for aircraft-related approvals,

such as type certificates and airworthiness certificates, and certain operations-related approvals like

airman certificates. While the regulations contain the

general requirements of the ODA program, the orders

will provide the administrative details. Providing the

specifics in orders allows for flexibility to expand or

revise the details of the ODA program without further

rulemaking, especially since every type of delegated

function that may be appropriate for an ODA Unit

cannot be foreseen.

In addition to approved delegated functions and the

eligibility requirements for delegated functions, the

orders address the specific selection, appointment, and

oversight procedures the FAA will follow in managing

ODA Holders. Additional ODA program details may be

described in other FAA orders or policies.

* * *

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[EXCERPTS]

ORDER

8100.15

ORGANIZATION DESIGNATION

AUTHORIZATION

PROCEDURES

* * *

8/18/06

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

* * *

CHAPTER 1. INTRODUCTION

1-1. PURPOSE. This order outlines the Federal

Aviation Administration’s (FAA) Organization Designation Authorization (ODA) program. Under this

program, we (the FAA) can delegate certain types of

authority to organizations. We wrote this order for

Aircraft Certification Service (AIR) and Flight Standards Service (AFS) personnel, who manage delegated

organizations. We also wrote this for organizations

granted an ODA to act on the FAA’s behalf. This order

addresses how to qualify, appoint, and oversee

organizations in the ODA program.

* * *

CHAPTER 3. QUALIFICATIONS,

RESPONSIBILITIES, AND AUTHORITY

* * *

3-7. MEMORANDUM OF UNDERSTANDING.

a. ODA Holder’s Commitment. An ODA holder

agrees to use the same care, diligence, judgment, and

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responsibility when performing the authorized functions as the FAA would use in performing the function.

This commitment starts at the senior management

level of the ODA holder and extends through the ODA

administrator, ODA unit, and the rest of the applicant’s organization. As proof of that commitment,

senior management of the organization and the FAA

managing office(s) will sign a memorandum of understanding (MOU) that outlines the charter, authority,

and responsibility of the ODA holder.

b. Preparing an MOU. The prospective OMT and

ODA holder jointly prepare the MOU. The ODA

holder’s senior management and FAA’s managing

office(s) must sign the MOU before issuing the ODA.

Also, any time a signatory of the MOU changes, the

replacement must sign a revised MOU. If an ODA

holder’s new senior management refuses to sign the

MOU, we must terminate the ODA. Appendix 1, figure

14 of this order contains an example of an acceptable

MOU. All personnel within the ODA holder that

manage ODA unit members in any capacity must read

and understand the MOU.

* * *

CHAPTER 11. SUPPLEMENTAL TYPE

CERTIFICATION FUNCTIONS

* * *

11-3. FUNCTIONS. Figures 2-2 and 2-3 of this order

list the ODA function codes. An STC ODA holder must

be able to perform all of the functions required for the

alterations for which it may issue an STC. The STC

ODA holder’s procedures manual must identify the

ODA holder’s specific authorized functions and limitations. The available STC ODA functions are:

78a

a. Approve Technical Data or Find Compliance to

Airworthiness Standards (function code 11010). An

STC ODA unit may approve type design and substantiation data, including changes to the data. This

includes:



Approving technical data such as test plans,

test data, or analyses



Witnessing tests



Reviewing test data to ensure that the test was

conducted in accordance with the test plan



For analytical data, ensuring that an appropriate and validated analytical model or system

was used

b. Issue STCs and/or Amendments (function code

11020). An STC ODA unit may issue an STC if it finds

that the requirements of 14 CFR §§ 21.113 and 21.115

for issuance of an STC are met.

c. Approve Operational or Repair Information

(function code 11040). An STC ODA unit may approve

operational information. The specific authority must

be defined in the procedures manual. Under this function code the ODA unit may approve an Aircraft Flight

Manual Supplement and any associated information

such as cargo loading or weight and balance (including

revisions) for an STC it issues.

d. Approve Airworthiness Limitations Information

(function code 11050). An STC ODA unit may approve

changes to airworthiness limitations associated with

an STC it issues.

e. Issue Airworthiness Certificates and Approvals.

An STC ODA unit may perform the following functions. The ODA unit must comply with 14 CFR part

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21; FAA Order 8130.2; Order 8130.21; Order 8130.29,

and this order.

(1) Issue Standard Airworthiness Certificate

(function code 11061). This includes amending a

standard airworthiness certificate for a U.S.registered aircraft.

(2) Issue Special Airworthiness Certificates

(function code 11062) in the experimental category

for the purpose of performing research and development, showing compliance with FAA regulations,

conducting crew training, and conducting market

surveys.

(3) Issue Special Flight Permits (function code

11066) for U.S.-registered aircraft for a purpose

outlined in 14 CFR §§ 21.197 (a)(1), (a)(4), or (b).

(4) Issue Special Airworthiness Certificates

(function code 11067) for primary category aircraft.

(5) Issue Special Airworthiness Certificates

(function code 11068) for restricted category aircraft.

(6) Issue a Replacement for a Lost, Stolen, or

Mutilated Standard or Special Airworthiness Certificate (function code 110610) if the proper documentation can be obtained from the applicant.

NOTE: This function is limited to an aircraft

being modified under an STC project. This function may also include the replacement of a certificate when the aircraft registration number

changes.

f. Establish Conformity Inspection Requirements

(function code 11070). An STC ODA unit may set

requirements for the extent and kind of conformity

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inspections required, and may issue a Request for

Conformity or TIA, as applicable.

g. Determine Conformity of Parts and Test Articles

(function code 11080). An STC ODA unit may determine whether engines, propellers, products, components, parts, appliances, or test articles conform to the

design data.

h. Determine Conformity of Test Setup (function

code 11090). An STC ODA unit may determine

whether test setups conform to the design data as

required by approved test plans.

i. Determine Conformity for Installation and TIA

Inspections on a Product (function code 11100). An

STC ODA unit may determine whether installations

of components, parts, or appliances on a product

conform to design data and perform TIA inspections.

j. Perform Compliance Inspections (function code

11110). An STC ODA unit may perform compliance

inspections to determine if products comply with the

14 CFR.

k. Perform Approvals in Support of TC ODA Holder

Projects (function code 11160). An STC ODA unit may

supply data approvals and conformity determinations

that are used within a TC ODA holder’s system. These

approvals are limited to the types of approvals

included in the ODA holder’s STC authority. The

procedures manual must specify the types of

airworthiness standards and products for which this

authority applies.

* * *

11-7. SUPPLEMENTAL TYPE CERTIFICATION

PROGRAMS. A STC ODA holder must use the same

process the FAA uses for standard certification pro-

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grams (see FAA Order 8110.4 and AC 21-40,

Application Guide for Obtaining a Supplemental Type

Certificate).

a. STC Program Considerations. The ODA is based

upon the ODA unit’s demonstrated experience and

capability to determine that alteration designs comply

with the airworthiness standards and are in a condition for safe operation.

(1) Working with Other STC Applicants. An STC

ODA unit may issue an STC to an applicant other

than the ODA holder. When issuing the STC to

another applicant, the ODA holder must act as an

agent for the applicant. The ODA holder’s program

notification letter must include a letter from the

STC applicant noting that the ODA holder is acting

on the applicant’s behalf and that the applicant

understands the responsibilities of an STC holder.

(2) Data Development Responsibilities. An STC

applicant must provide substantiating data to show

compliance with the applicable airworthiness

requirements.

(a) An ODA unit may approve a design only

when the ODA unit has a complete understanding

of the design, and takes full responsibility for the

integrity and completeness of compliance findings

for the design and installation of the alteration.

An ODA holder, as the STC applicant or its agent,

is responsible for overall alteration development,

including design integration, development of

design and substantiation data, prototype installation, and certification. An ODA holder must

substantiate compliance with all airworthiness

requirements for the design and installation of the

systems and all components (including items pre-

82a

viously approved and used in other applications)

involved in the STC.

(b) Lower level design/substantiation data

developed by suppliers is acceptable, if the ODA

holder is involved in all aspects of showing

compliance for the integration of the design and

substantiation data.

that all data developed by other parties apply to

the alteration and provide necessary substantiation of compliance with airworthiness standards.

Proper compliance with the airworthiness standards can be established only when type certification requirements are considered early in the

design development process. This mandates early

involvement by an ODA holder in any program

leading to issuance of an STC. This responsibility

is in addition to the ODA unit’s responsibility

when making the findings of compliance for the

project.

(3) Additional Party Involvement. Projects that

involve numerous parties in the design or manufacture of parts require additional scrutiny on the part

of both the ODA unit and the OMT. The OMT must

evaluate the capability of an ODA holder to perform

such projects, considering the experience and

competence of the other parties involved, during the

review of the program notification letter.

(4) Additional Knowledge. In addition to showing

compliance to the airworthiness standards, an ODA

holder is also responsible for finding that the altered

product is of a proper design for safe operation. In

order to determine this, the ODA holder must

consider the product manufacturer’s design philoso-

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phy, principles, and operational assumptions. Such

information may be obtained by reviewing available

data such as; original type design data, type certificate data sheets, flight manuals, flight crew operations manuals, or by past experience of the ODA

unit. An ODA holder must also consider the procedures employed by the operator of the product and

the impact of any alterations previously made to the

product. The OMT should assess the ODA unit’s

experience and knowledge of these considerations

when reviewing program notification letters and

determining the level of FAA involvement in a

project.

b. Adherence to Policy Requirements. As a representative of the FAA, an ODA holder is expected to

comply with any certification guidance and policy

applicable to the project. Each ODA holder must stay

informed of the latest policies applicable to the projects it performs and propose certification plans that

conform to these policies. Certification policies can be

reviewed on the internet at http://www.airweb.faa.

gov/rgl.

(1) Program Notification Letter. The ODA administrator must submit a PNL to the OMT lead early

in the project containing the following information.

If the project scope or schedule is significantly

revised, the ODA administrator must notify the

FAA and obtain concurrence with the changes from

the OMT before proceeding with the project. By

submitting a PNL, the ODA unit is attesting that it

has, or can obtain, the appropriate knowledge and

understanding of the product manufacturer’s design

philosophy, principles, and operational assumptions

required to determine compliance with the airworthiness standards and determine that no unsafe

84a

feature or characteristic exists in the altered product. The PNL must:

(a) Include an FAA Form 8110-12.

(b) Include a certification plan that contains

the information described in appendix 2 of this

order.

shown in appendix 1, figure 15 of this order.

(d) Identify any novel or unusual aspects of the

program including any international aspects, or

foreign airworthiness authorities involved.

(e) Identify any design changes that are considered a “significant project” according to the definition in FAA Order 8110.4.

(f) Specify who will perform the design (excluding certification activities), if other than the ODA

holder, the scope of any other party’s involvement

in the design, and provide a description of how the

ODA holder will manage the other parties’ activities. The ODA holder must ensure that all certification requirements are met and managed (e.g.,

periodic contact/meetings with the company performing the design work to monitor design progress, issues of concern, and proposed modifications to the design and/or schedule).

c. Program Notification Letter Coordination.

(1) The OMT lead will coordinate with the OMT

for review and concurrence with the original PNL,

and any later supplements or changes. The managing ACO will also coordinate with the type certificate managing ACO, as appropriate. In addition, the

ACO is responsible for the normal directorate

project notification requirements.

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(2) As part of the OMT review of the PNL and the

associated certification and conformity plans, the

OMT will consider whether the ODA holder has, or

can obtain, the appropriate knowledge and understanding of the product manufacturer’s design philosophy, principles, operational assumptions, and

actual operator procedures. The OMT will nonconcur with projects that it determines the ODA

holder is not qualified to perform.

(3) If a project is to be performed at an off-site

location, the OMT will coordinate with the off-site

facility’s principal maintenance inspector. This is to

verify that the facility has experience with the types

of alterations on the specific product(s) (make and

model) that the project involves. The OMT will also

consider its own ability to oversee and participate in

the project, based on the facility’s location. The OMT

may authorize a project only if:

(a) The work location does not prevent the

OMT’s necessary involvement and oversight.

(b) The ODA holder has sufficient experience

and knowledge to manage the off-site project.

the altered product for return to service.

d. Specific Findings. The FAA will make specific

findings of compliance as follows:

(1) Determine compliance in areas reserved for

the FAA, such as regulatory interpretations and

equivalent level of safety findings. The ODA holder

must request concurrence on the application of all

equivalent level of safety findings in writing.

(2) Determine compliance for the emissions and

noise requirements of 14 CFR parts 34 and 36.

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(3) Determine compliance in areas evaluated by

the AEG. These include Instructions for Continued

Airworthiness, evaluation of operational suitability,

changes to the Master Minimum Equipment List,

Aircraft Flight Manual, Flight Crew Operating

Manual, crew qualifications, and emergency evacuation demonstrations.

(4) Determine compliance, when necessary, in

areas involving new design concepts including the

identification of those areas that require the formulation of special conditions in accordance with 14

CFR §21.101(d) or areas where the ODA holder has

no prior experience.

(5) Review data, tests, or technical evaluations if

the ODA holder has not demonstrated a satisfactory

capability during similar projects.

(6) Review areas where service difficulties have

resulted from previous ODA holder approvals.

(7) Participate in compliance findings in areas

involving known safety-related problems. For example, the ACO should review modifications affecting

areas that have previously been the subject of

Airworthiness Directive action to ensure that the

proposed modification does not adversely affect the

Airworthiness Directive-related change.

e. Program Notification Letter Response. The OMT

lead will respond to the ODA holder formally, in

writing, after receiving the PNL. The OMT lead must

respond within 30 days unless the ODA holder agrees

to a later response. The response must include:

(1) The OMT’s concurrence or non-concurrence

with the proposed certification and conformity

plans.

87a

(2) Acknowledgement that the certification basis

is acceptable, including any limitations, conditions,

or objections.

(3) The names and other contact information for

FAA engineers, manufacturing inspectors, AEG

focal points, and administrative staff assigned to the

project.

(4) Identify specific FAA findings and involvement in the project and require the ODA holder to

provide adequate notice to the FAA of activities in

which the FAA will participate. The FAA response

should include direction to the ODA unit members

for approval or recommend approval on FAA Form

8100-9.

(5) The requirement that the ODA holder must

notify/coordinate with the OMT in a timely manner

if the project’s scope and/or schedule is significantly

revised. Significant changes that should be reported

include:

(a) A change in any of the parties involved, or

the level of their involvement, in the design or

installation of the alteration.

(b) A changes in the location where the

prototype installation will be performed.

which the FAA will participate.

(d) Any certification methodology change.

(e) Any other change deemed appropriate by

the managing ACO.

NOTE: The OMT should determine any other

types of change that require notification, based on

the ODA holder’s capability and project types. The

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OMT and the ODA administrator should ensure

that they understand the types of schedule/project

scope changes that must be reported.

f. STC Board Meetings. As applicable, the ODA

holder will hold STC board meetings in accordance

with FAA Order 8110.4. The ODA administrator will

chair preliminary, interim, pre-flight, and final STC

board meetings on major projects. The ODA administrator will also chair any other meetings necessary to

meet the objectives in these procedures. The ODA

holder must coordinate scheduling of the meetings

with the FAA. During the meetings, the FAA will:

(1) Establish the applicable certification basis.

(2) Identify any areas requiring formulation of

special conditions.

(3) Offer special attention, information, and guidance to address new design concepts, service

difficulties, FAA policy, and the current state-of-theart considerations.

(4) Establish those areas of the STC program for

which the FAA will make specific findings.

(5) Coordinate program scheduling necessary to

accomplish the required FAA participation.

(6) Establish that areas requiring FAA participation have been satisfactorily completed by the FAA.

(7) Review the certification plan and conformity

inspection plan.

(8) Review the applicable noise and emission

requirements and establish the nature and extent of

tests and substantiation expected from the ODA

holder.

89a

g. Engineering Approval. Engineering or flight test

ODA unit members determine compliance with the

FAA regulations. The procedures manual must contain the specific forms and procedures used to determine and document compliance. The procedures manual must identify procedures for developing and

approving the conformity inspection plan. The ODA

unit must use the proper FAA forms. Engineering or

flight test ODA unit members must approve the

following records, as applicable, to document compliance:

(1) FAA Form 8100-9 (appendix 1, figure 5 of this

order) for compliance findings.

(2) FAA Form 8120-10.

(3) FAA Form 8110-1.

(4) Supplemental Type Inspection Report (part

2), as applicable.

(5) AFM and AFM supplements, as required.

h. Compliance Findings for Equivalent Safety

Provisions. After the FAA defines any equivalent

safety provisions, engineering and flight test ODA

unit members may determine whether the product

complies with them. The ODA unit must submit

equivalent safety finding results in writing to the

OMT for approval.

i. Conformity. Inspection ODA unit members

inspect products to determine whether they conform

to type design, document results of the inspections,

and establish if the product is airworthy.

(1) Prior to any FAA conformity inspection, the

product or article must be inspected in accordance

with 14 CFR §21.33 and an FAA Form 8130-9 must

be completed to satisfy 14 CFR §21.53. Complex sub-

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assemblies may require issuance of additional

Forms 8130-9. The ODA unit member determining

conformity for the FAA may not sign the Form 81309. The procedures manual must identify the specific

forms and procedures used to document inspection

results. See FAA Order 8110.4 for examples of the

forms and instructions on how to complete them.

The procedures manual must identify the procedures used to develop and approve the conformity

inspection plan.

(2) Before any compliance inspection or test, an

ODA member must determine that the end product,

in-process parts, or test articles conform with the

type design. They must document conformity on the

following forms (as applicable):



FAA Form 8100-1



FAA Form 8110-26 (part 1), as applicable



FAA Form 8130-3



FAA Form 8130-9

j. Aircraft Evaluation Group Functions.

(1) Instructions for Continued Airworthiness.

Plans regarding ICA must be coordinated with the

AEG OMT representative early in the program to

ensure that ICA development and acceptance does

not delay the program. The AEG OMT representative will determine the level of his involvement

during the program notification letter review. The

ODA unit must ensure the ICA is accepted upon

delivery of the altered product or prior to issuance of

the first standard or restricted airworthiness certificate for an altered aircraft, whichever occurs later.

NOTE: Delegation of ICA acceptance will be provided for in the next revision to this order.

91a

(2) Determinations of operational suitability,

Master Minimum Equipment List revisions, crew

training, etc., may not be delegated to an ODA

holder. The managing ACO must coordinate with

the appropriate AEG to ensure that all program

requirements for which the AEG is responsible are

satisfied.

k. Issuing Supplemental Type Certificates. Prior to

issuing an STC, the ODA holder must complete FAA

Form 8100-11 (see appendix 1, figure 11 of this order)

certifying that the STC design complies with FAA

regulations. The ODA holder must prepare the STC in

accordance with FAA Order 8110.4.

NOTE: The ACO will provide the ODA holder STC

numbers on either a project-by-project basis or as

a block of numbers for the ODA Unit’s use. The

numbers will be issued in accordance with FAA

Order 8110.4. Each STC issued by an ODA unit

must have a “-D” placed after the STC number.

For example, SA00125AT-D would be the 125th

STC issued through the Atlanta ACO on a small

airplane and have been issued by an STC ODA

unit. The ACO must include STCs issued by the

ODA unit in its monthly reports for the STC

summary as described in FAA Order 8110.4.

l. Submission of Data after Certification. The ODA

holder must submit the following data within 30

calendar days of the STC issuance date. This data and

all project related correspondence must be retained by

the ACO:

(1) A statement of completion certifying that the

design article satisfies the FAA regulations.

(2) A paper copy of the signed STC and an electronic copy.

92a

(3) A copy of the flight manual supplement.

(4) Any other data identified in the OMT’s

response to the program notification letter or

required by the procedures manual.

m. Transfer of STCs. Only the FAA may transfer an

STC. An ODA unit may not transfer an STC by

reissuing it in another party’s name. An ODA holder

that wishes to transfer an STC to another party must

follow the standard procedures for transfer of a type

certificate (see 14 CFR §21.47 and FAA Order 8110.4).

n. Amendment of an Existing STC. Any STC

amendment issued by an ODA holder requires submittal of a program notification letter. Any amendment to

an STC must be coordinated with the ACO prior to its

issuance. If the ODA unit amends an STC originally

issued by the FAA, the ODA unit must include the

“-D” designation in the STC number.

* * *

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.