Opposition Brief — Airbus Helicopters, Inc., Petitioner v. Mary Riggs, et al.

Supreme Court briefMay 21, 2020

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NO. 19-1158

IN THE

Supreme Court of the United States

_______________________________________________

AIRBUS HELICOPTERS, INC.,

Petitioner,

MARY RIGGS, ET AL.,

Respondents

______________________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

_________________________________________________

BRIEF IN OPPOSITION

_________________________________________________

Gary C. Robb

Anita Porte Robb

Andrew C. Robb

Brittany Sanders Robb

ROBB & ROBB LLC

One Kansas City Place

1200 Main Street

Suite 3900

Kansas City, MO 64105

(816) 474-8080

Robert S. Peck

Counsel of Record

CENTER FOR CONSTITUTIONAL

LITIGATION, P.C.

455 Massachusetts Ave., NW

Suite 152

Washington, DC 20001

(202) 944-2874

robert.peck@cclfirm.com

Counsel for Respondents

QUESTION PRESENTED

Whether the aircraft design choices made by a

manufacturer of private aircraft, formally delegated

self-certification authority by the Federal Aviation

Administration, can claim to be “acting under” a

federal officer for removal to federal court under 28

U.S.C. § 1442(a)(1), when a design defect solely

attributable to that choice caused a passenger injury?

TABLE OF CONTENTS

QUESTION PRESENTED .......................................... i

TABLE OF AUTHORITIES ...................................... iv

BRIEF FOR RESPONDENTS IN OPPOSITION ..... 1

INTRODUCTION ....................................................... 1

STATEMENT OF THE CASE ................................... 3

A. Factual Background ........................................ 3

B. Procedural History........................................... 4

C. Statutory and Regulatory Background ........... 5

REASONS FOR DENYING THE PETITION ........... 8

I. The Decision Below Faithfully Applies this

Court’s Decision in Watson ................................... 9

A. The Decision Below Does Not Conflict with

Watson ............................................................ 10

1. Watson’s reasoning supports the decision

below ......................................................... 11

2. Watson’s “Fatal Flaw” Discussion

Related to an Analogy to Government

Contractors, Not to Authority to Certify

Compliance with the Law ........................ 18

iii

II. AHI Conjures Up a Circuit Conflict that Does

Not Exist .............................................................. 22

III. The Petition Does Not Present a Recurring

Issue of Exceptional Importance, and the Case

Comprises a Poor Vehicle for Review ................. 27

IV. The Decision Below is Correct ............................ 31

CONCLUSION ......................................................... 34

TABLE OF AUTHORITIES

Cases

Andera v. Precision Fuel Components, LLC,

2012 WL 12509225

(W.D. Wash. Aug. 1, 2012) ............................... 29, 30

Arizona v. Manypenny,

451 U.S. 232 (1981) .................................................. 6

Bennett v. MIS Corp.,

607 F.3d 1076 (6th Cir. 2010) .......................... 31, 32

Betzner v. Boeing Co.,

910 F.3d 1010 (7th Cir. 2018) ................................ 10

Boyd v. Boeing Co.,

No. 15-0025, 2015 WL 4371928

(E.D. La. July 14, 2015) ......................................... 32

Boyle v. United Technologies Corp.,

487 U.S. 500 (1988) ................................................ 18

Britton v. Rolls Royce Engine Servs.,

2005 WL 1562855 (N.D. Cal. June 30, 2005) .. 11, 24

Carter v. Cent. Reg’l W. Virginia Airport Auth.,

2016 WL 4005932 (S.D. W.Va. Jul. 25, 2016) ....... 29

Caver v. Cent. Ala. Elec. Coop.,

845 F.3d 1135 (11th Cir. 2017) .............................. 10

Charlima, Inc. v. United States,

873 F.2d 1078 (8th Cir. 1989) ...................... 7, 19, 22

Cuomo v. Crane Co.,

771 F.3d 113 (2d Cir. 2014) ................................... 10

Dietz v. Avco Corp.,

168 F. Supp. 3d 747 (E.D. Pa. 2016) ........... 8, 23, 28

Durham v. Lockheed Martin Corp.,

445 F.3d 1247 (9th Cir. 2006) .................................. 9

Franchise Tax Bd. v. Constr. Laborers Vacation

Tr. for S. Calif., 463 U.S. 1 (1983) ......................... 33

Getz v. Boeing Co.,

654 F.3d 852 (9th Cir. 2011) .................................. 22

Golden v. New Jersey Inst. of Tech.,

934 F.3d 302 (3d Cir. 2019) ................................... 10

Greene v. Citigroup, Inc.,

215 F.3d 1336 (10th Cir. 2000) .............................. 10

In re Agent Orange Prod. Liab. Litig.,

517 F.3d 76 (2d Cir. 2008) ..................................... 18

Jacks v. Meridian Res. Co., LLC,

701 F.3d 1224 (8th Cir. 2012) ................................ 10

Jefferson County v. Acker,

527 U.S. 423 (1999) .................................................. 9

K&D LLC v. Trump Old Post Office LLC,

951 F.3d 503 (D.C. Cir. 2020) ................................ 10

Lu Junhong v. Boeing Co.,

792 F.3d 805 (7th Cir. 2015) .......................... passim

Magnin v. Teledyne Cont’l Motors,

91 F.3d 1424 (11th Cir. 1996) .............. 22, 23, 24, 27

Mays v. City of Flint,

871 F.3d 437 (6th Cir. 2017) .................................. 10

Merck Sharp & Dohme Corp. v. Albrecht,

139 S. Ct. 1668 (2019) ............................................ 16

Mesa v. California,

489 U.S. 121 (1989) ........................................ 6, 9, 30

O’Brien v. Cessna Aircraft Co.,

No. 8:09CV40, 2010 WL 4721189 (D. Neb.

July 21, 2010), report and recommendation

adopted, No. 8:09CV40, 2010 WL 4720333

(D. Neb. Nov. 12, 2010). ............................. 11, 29, 30

Ohio State Chiropractic Ass’n v. Humana

Health Plan Inc., 647 F. App’x 619

(6th Cir. 2016) ........................................................ 23

Papp v. Fore-Kast Sales Co.,

842 F.3d 805 (3d Cir. 2016) ..................................... 2

Sawyer v. Foster Wheeler LLC,

860 F.3d 249 (4th Cir. 2017) .................................. 10

vii

Scrogin v. Rolls-Royce Corp.,

No. 3:10-cv-442 WWE, 2010 WL 3547706

(D. Conn. Aug. 16, 2010) ........................................ 32

Sesay v. Raytheon Aircraft Co.,

2012 WL 847240 (C.D. Cal. Jan. 5, 2012) ............. 28

St. Charles Surgical Hosp., L.L.C. v. Louisiana

Health Serv. & Indem. Co.,

935 F.3d 352 (5th Cir. 2019) .................................. 10

Swanstrom v. Teledyne Continental Motors,

Inc., 531 F. Supp. 2d 1325

(S.D. Ala. 2008) .................................... 23, 24, 28, 30

United States v. Mead Corp.,

533 U.S. 218 (2001) ................................................ 21

United States v. S.A. Empresa de Viacao Aerea

Rio Grandense (Varig Airlines),

467 U.S. 797 (1984) .............................................. 6, 7

Vandeventer v. Guimond,

494 F. Supp. 2d 1255 (D. Kan. 2007) .................... 29

Watson v. Philip Morris Cos., Inc.,

420 F.3d 852 (8th Cir. 2005) ............................ 13, 18

Watson v. Philip Morris Cos.,

551 U.S. 142 (2007) ........................................ passim

West v. A & S Helicopters,

751 F. Supp. 2d 1104 (W.D. Mo. 2010) .................. 29

viii

Willingham v. Morgan,

395 U.S. 402 (1969) ............................................ 6, 14

Winters v. Diamond Shamrock Chem. Co.,

149 F.3d 387 (5th Cir. 1998), cert. denied,

526 U.S. 1034 (1999) .............................................. 22

Wyeth v. Levine,

555 U.S. 555 (2009) ............................................ 2, 16

Statutes

28 U.S.C. § 1442(a)(1) ........................................ passim

49 U.S.C. § 44701(a) .................................................... 2

49 U.S.C. § 44702(d)(1) ........................................ 17, 25

49 U.S.C. § 44702(d)(1)(A) ........................................... 7

49 U.S.C. § 44702(d)(1)(B) ........................................... 7

49 U.S.C. § 44702(d)(3) ................................................ 8

49 U.S.C. § 44704(a)(1) .............................................. 16

49 U.S.C. § 44704(d)(1) .............................................. 17

49 U.S.C. §§ 44710 et seq. ............................................ 7

Regulations

14 CFR § 21.21(b) ...................................................... 16

14 CFR § 183.49........................................................... 7

14 CFR § 183.57(c) ................................................. 7, 11

14 CFR § 183.59........................................................... 7

14 CFR § 183.63(c) ..................................................... 12

21 CFR § 314.80(b) ...................................................... 2

Establishment of Organization Designation

Authorization Program, 70 Fed. Reg. 59,932,

(Oct. 13, 2005) (codified at 14 C.F.R. pts. 21,

121, 135, 145, 183). .................................................. 7

73 Fed. Reg. 49605 ...................................................... 2

Other Authorities

Neal Devins, Unitariness and Independence:

Solicitor General Control over Independent

Agency Litigation, 82 Cal. L. Rev. 255 (1994) ....... 21

Statement of FAA Administrator Stephen M.

Dickson before the Committee on

Transportation and Infrastructure, United

States House of Representatives (Dec. 11,

2019), available at

https://www.faa.gov/news/speeches/news_sto

ry.cfm?newsId=24474 ............................................ 16

Webster’s New International Dictionary

(2d ed.1953) .............................................................. 1

BRIEF FOR RESPONDENTS IN OPPOSITION

Respondent

Mary

Riggs,

Personal

Representative of the Estate of Jonathan Neil Udall,

and Philip and Marlene Udall, as Next of Kin and

Natural Parents of Jonathan Neil Udall, deceased,

respectfully request that this Court deny the petition

for a writ of certiorari that seeks review of the decision

of the United States Court of Appeals for the Ninth

Circuit in this case.

INTRODUCTION

The federal officer removal statute allows a

private party “acting under” a federal officer to permit

their federal defense to be heard in federal court. 28

U.S.C. § 1442(a)(1). This Court, adopting the

dictionary meaning of the critical “acting under”

requirement at issue here, described the relationship

between private person and government actor as

“typically involv[ing] ‘subjection, guidance, or

control.’” Watson v. Philip Morris Cos., 551 U.S. 142,

151 (2007) (quoting Webster’s New International

Dictionary 2765 (2d ed.1953)). That relationship, as

both the district court and the Ninth Circuit held, was

absent in this tragic case involving an allegedly

defective design.

Petitioner Airbus Helicopters, Inc. (AHI) had sole

responsibility for the aircraft’s design. It did not, for

example, stand in the same boots as a military

contractor tasked with building a helicopter to the

government’s specifications. That manufacturer acts

“under the direct supervision, control, order, and

directive of federal government officers acting under

the color of federal office.” Papp v. Fore-Kast Sales Co.,

842 F.3d 805, 813 (3d Cir. 2016). In those instances, it

is the federal government, not the manufacturer, who

is responsible for the design, and any lawsuit of that

kind claiming a design defect against that

manufacturer is properly subject to federal-officer

removal.

AHI can make no similar claim. The tour

helicopter that crashed here was not designed or built

under the “subjection, guidance, or control” of federal

government officers, but entirely as a function of AHI’s

own design preferences. To be sure, the helicopters

must conform to Federal Aviation Regulations (FARs),

through which the Administrator of the Federal

Aviation Administration (FAA) prescribes “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).

Yet, the institution of those standards and

compliance with them no more makes a manufacturer

a federal officer than does a pharmaceutical

company’s compliance with Food & Drug

Administration (FDA) regulatory requirements to

conduct clinical trials, monitor adverse events, and

propose labeling changes. See Wyeth v. Levine, 555

U.S. 555, 571 (2009) (citing 21 CFR § 201.80(e); 21

CFR § 314.80(b); and, 73 Fed. Reg. 49605)). Both the

Ninth and Seventh Circuits noted that other

industries

have

compliance

certification

responsibilities that do not transform them into

federal officers. See Pet. App. 6a-7a n.6 (finding no

dispositive difference

authority to certify

compliance).

between a delegation of

compliance and ordinary

Before the Ninth Circuit, AHI conceded that “it

cannot make design changes without approval from

the FAA.” Pet. App. 14a. That concession confirms

that the design defect alleged in the complaint, see Pet.

App. 2a, was a function of AHI acting as a private

company, and not as the designee of the FAA. The

FAA has no responsibility for the allegedly defective

design, regardless of AHI’s compliance with thenexisting FARs. Given the lack of federal involvement

in AHI’s helicopter design choices, AHI is not entitled

to federal-officer removal.

STATEMENT OF THE CASE

A. Factual Background.

Jonathan Neil Udall, while on vacation from the

United Kingdom, embarked on a sightseeing tour of

the Grand Canyon on February 10, 2018 in a

helicopter assembled, distributed, and sold by AHI.

Pet. App. 2a, 31a. The helicopter was operated and

maintained by Co-Respondent Papillon Airways, Inc.

The helicopter departed that morning from Papillon’s

base of operations, Boulder City Municipal Airport in

Nevada.

As the helicopter approached a landing area at the

Grand Canyon, the pilot lost control, forcing the

aircraft to make a hard landing in the canyon. It

immediately burst into flames. Udall was extensively

burned, but still had to endure a painful eight-hour

wait for helicopter emergency transport to a medical

center.

Once the helicopter emergency transport arrived,

Udall was taken to University Medical Center where

he remained in critical condition with burns over 98

percent of his body. On February 22, 2018, Udall died

as a result of his catastrophic burn injuries.

B. Procedural History

On March 2, 2018, Udall’s parents and estate filed

this action in the Eighth Judicial District Court for

Clark County, Nevada, alleging claims of negligence

and strict liability against several defendants

including the manufacturer, operator, owner, and

pilot. In their claims against AHI (and its parent

company, Airbus Helicopters, S.A.S.), Plaintiffs allege

that the subject helicopter was defectively designed in

that the fuel system was not crash-resistant and could

not withstand a minimal or moderate impact without

bursting into flames and engulfing the passenger

compartment. Pet. App. 2a. No claim raised a federal

question.

On March 9, 2018, Plaintiffs filed their First

Amended Complaint, adding two defendants. On May

18, 2018, thirty days after being served with the FAC,

AHI filed a notice of removal asserting federal officer

status under 28 U.S.C. § 1442(a)(1). Plaintiffs timely

filed a motion to remand on June 8, 2018. The nonAHI defendants, Co-Respondents here, filed a

separate remand motion on June 15, 2018. On July 16,

2018, the District Court granted the motions to

remand. Pet. App. 29a-40a.

AHI appealed as of right and asked for expedited

review by the Ninth Circuit. It contended, as it does

here, that its holding of an Organization Designation

Authorization (ODA) from the FAA makes it a federal

officer. The Ninth Circuit disagreed, holding that the

ODA designation merely permits AHI to certify

“compliance and . . . 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.’” Pet. App. 14a

(quoting Watson, 551 U.S. at 153).

More critically, the court recognized that the case

was about a defectively designed helicopter, not about

negligent certification. Pet. App. 2a. The dissent took

the view that the designated “authority to issue

‘certificates’ on the agency’s behalf” rendered AHI a

federal officer, Pet. App. 17a, a basis for federal-officer

designation the majority found too flimsy and

unconnected to the cause of action. Pet. App. 6a-7a n.6,

13a, 14a. AHI’s petition for rehearing en banc was

denied with no judge requesting a vote. Pet. App. 41a42a.

C. Statutory and Regulatory Background.

The Federal Officer Removal Statute, 28 U.S.C.

§ 1442(a)(1), permits removal of a state-filed case to a

federal forum in any action 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). Its purpose is “to ensure

a federal forum in any case where a federal official is

entitled to raise a defense arising out of his duties.”

Arizona v. Manypenny, 451 U.S. 232, 241 (1981).

Removal is appropriate only when some “federal

interest in the matter” exists to protect “the

enforcement of federal law through federal officials.”

Willingham v. Morgan, 395 U.S. 402, 406 (1969). The

otherwise broad scope of removal authority authorized

by Section 1442(a)(1) is limited by reference to the

statute’s “language, context, history, and purposes.”

Watson, 551 U.S. at 147. Federal officer removal was

brought into being in 1815 as a “congressional

response to New England’s opposition to the War of

1812, [and] its expansion in response to South

Carolina’s 1833 threats of nullification.” Mesa v.

California, 489 U.S. 121, 125-26 (1989). It seeks to

avoid state-court hostility to federal authority.

Willingham, 395 U.S. at 405.

The FAA sets “minimum standards for aircraft

design, materials, workmanship, construction, and

performance” and “prescribe[s] reasonable rules and

regulations governing the inspection of aircraft.”

United States v. S.A. Empresa de Viacao Aerea Rio

Grandense (Varig Airlines), 467 U.S. 797, 804 & n.5

(1984).

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” to make up for “limited resources.” Pet. App.

69a, 70a. The Eighth Circuit has described this

delegation approach as a means of “reduc[ing]

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). The designated private persons are authorized

to undertake certification and airworthiness

approvals for the products manufactured by the

authorization holder. Id. See also Varig Airlines, 467

U.S. at 807.

The ODA program, 14 CFR § 183.49, utilizes

qualified private parties to conduct “the examination,

testing, and inspection” and issue a certificate of

compliance. 49 U.S.C. §§ 44710, et seq., 44702(d)(1)(A)

& (B). When performing one of the specified delegated

functions, an ODA designee is “legally distinct from

and act[s] independent of the organizations that

employ them.” Pet. App. 71a; Establishment of

Organization Designation Authorization Program, 70

Fed. Reg. 59,932, 59,933 (Oct. 13, 2005) (codified at 14

C.F.R. pts. 21, 121, 135, 145, 183). There is no direct

or sustained supervision of ODA functions. In support

of that separation of function, an ODA holder must

ensure that no conflicting responsibilities affect the

performance of authorized functions. 14 CFR

§ 183.57(c).

Regulations give the FAA Administrator

authority, “at any time and for any reason,” to inspect

an ODA Holder’s products, components, parts,

appliances, procedures, operations, and records

associated with the authorized or requested functions.

14 CFR § 183.59. When that spot-checking function is

not utilized, a “person affected by an action of a private

person under this subsection may apply for

reconsideration of the action by the Administrator,”

who can “change, modify, or reverse” any

“unreasonable or unwarranted” action by the private

person. 49 U.S.C. § 44702(d)(3).

REASONS FOR DENYING THE PETITION

The Seventh and Ninth Circuits, the only

appellate decisions to address the Question Presented

since this Court’s decision in Watson, held that a

private aircraft manufacturer does not qualify for

federal-officer removal based on either regulatory

compliance activities or its own design choices.

Contrary to AHI’s assertions, there is no confusion in

the lower courts on this issue. Since this Court’s

decision in Watson, the “vast majority of those courts

[that have confronted arguments for removal in the

aviation context] have remanded the cases to state

court.” Dietz v. Avco Corp., 168 F. Supp. 3d 747, 753

(E.D. Pa. 2016).

AHI attempts to manufacture a circuit conflict by

pointing to an Eleventh Circuit decision that predated

Watson and therefore applied different legal

principles. AHI fails to recognize that since the

seminal decision in Watson, courts have read and

applied the rules articulated in Watson consistently.

Id.

Critically, this case presents a poor vehicle for

review because it is a design-defect case. In Watson,

this Court suggested that that critical fact made a

difference, but put it aside to address how compliance

with highly specific regulatory authority was

insufficient. Watson, 551 U.S. at 154 (“For argument’s

sake we shall overlook the fact that the petitioners

appear to challenge the way in which Philip Morris

‘designed’ its cigarettes, not the way in which it (or the

industry laboratory) conducted cigarette testing.”).

There is no reason to answer the same question one

more time “[f]or argument’s sake.”

Here, the causal nexus needed for federal-officer

removal is missing because there is no connection

between AHI’s unilateral choice not to incorporate a

crash-resistant fuel system into its helicopter and, in

turn, its OHA certification responsibility to comply

with FARs. AHI made its design choices as a private

manufacturer, not by any stretch as a representative

of the FAA.

The Decision Below Faithfully Applies this

Court’s Decision in Watson.

The Ninth Circuit has distilled this Court’s

decisions into three elements for private-party

removal under the Federal Officer Removal Statute,

28 U.S.C. § 1442(a)(1): (a) the party seeking removal

must be a “person” within the meaning of the statute;

(b) there must be “a causal nexus between its actions,

taken pursuant to a federal officer’s directions, and

plaintiff's claims;” and (c) the officer must “assert a

‘colorable federal defense.’” Durham v. Lockheed

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

(citing Jefferson County v. Acker, 527 U.S. 423, 431

(1999); Mesa v. California, 489 U.S. 121, 129 (1989)).

The other circuits, though they differ on the number

of elements in the test, ask the same essential

questions.1

The Ninth Circuit applied that test in a manner

faithful to this Court’s decision in Watson. AHI does

not suggest a different test, only a different result.

A. The Decision Below Does Not Conflict

with Watson.

Still, AHI asserts that the decision below conflicts

with Watson and, for that reason, merits this Court’s

review. However, the Ninth Circuit carefully and

faithfully applied the guidance supplied by this Court

in Watson, and there is no conflict. Instead, AHI asks

this Court to accept that its private duties as a

manufacturer merged with its public duties because of

its ODA holder status and, consequently, AHI’s

helicopter design choices should become attributable

to the FAA.2 The Ninth Circuit rejected that merger

See Cuomo v. Crane Co., 771 F.3d 113, 115 (2d Cir. 2014);

Golden v. New Jersey Inst. of Tech., 934 F.3d 302, 309 (3d Cir.

2019); Sawyer v. Foster Wheeler LLC, 860 F.3d 249, 254 (4th Cir.

2017); St. Charles Surgical Hosp., L.L.C. v. Louisiana Health

Serv. & Indem. Co., 935 F.3d 352, 355 (5th Cir. 2019); Mays v.

City of Flint, 871 F.3d 437, 442 (6th Cir. 2017); Betzner v. Boeing

Co., 910 F.3d 1010, 1015 (7th Cir. 2018); Jacks v. Meridian Res.

Co., LLC, 701 F.3d 1224, 1230 (8th Cir. 2012); Greene v.

Citigroup, Inc., 215 F.3d 1336 (10th Cir. 2000); Caver v. Cent. Ala.

Elec. Coop., 845 F.3d 1135, 1142 (11th Cir. 2017); K&D LLC v.

Trump Old Post Office LLC, 951 F.3d 503, 506 (D.C. Cir. 2020).

2 AHI writes, “the ODA holder is the entity that carries out the

FAA’s duties under section 21.33(a), such that an ODA designee’s

[self-]certification conveys the FAA’s formal approval of the

aircraft.” Pet. App. 12 (emphasis in orig.). It takes comfort in the

hypothesis. Pet. App. 13a-14a. AHI’s arguments, in

fact, cannot be reconciled with the applicable

regulations, which emphasize the separation of the

private and federal functions and demand that ODA

holders avoid conflicts of interest. See Pet. App. 71a

(“When performing a delegated function, designees

are legally distinct from and act independent of the

organizations that employ them.”); 14 CFR § 183.57(c)

(“The ODA Holder must … (c) [e]nsure that no

conflicting non-ODA Unit duties or other interference

affects the performance of authorized functions.”).

If AHI’s argument were valid, “every repair or

maintenance inspection on an airplane engine is

eventually followed by issuance of a certificate of

airworthiness, [and] then every airplane engine []

mechanic could remove to federal court even the

simplest of negligence claims.” Britton v. Rolls Royce

Engine Servs., 2005 WL 1562855, at *4 n.3 (N.D. Cal.

June 30, 2005). Accord, O’Brien v. Cessna Aircraft Co.,

No. 8:09CV40, 2010 WL 4721189, at *13 (D. Neb. July

21, 2010), report and recommendation adopted, No.

8:09CV40, 2010 WL 4720333 (D. Neb. Nov. 12, 2010).

1. Watson’s reasoning

decision below.

supports

the

Watson provides no basis for AHI’s novel and

illogical proposition that its failure to correct a design

dissent’s agreement with that proposition, see Pet. App. 26a (“an

ODA Holder’s ‘certification’ conveys the agency’s formal approval

to the aircraft.”). However, both AHI and the dissent mistakenly

make this a case about negligent certification approval when the

defective design was entirely AHI’s doing in its private capacity.

defect is government action. Before the Court of

Appeals, as here, AHI conflates its ODA role with its

separate private status by claiming that the plaintiff’s

death was connected to its responsibility to the FAA

in “inspecting major design changes and issuing

supplemental type certificates for aircraft.” Br. of

Deft.-Appellant Airbus Helicopters, Inc., Riggs v.

Airbus Helicopters, Inc., No. 18-16396, Dkt. No. 12-1,

at 2 (Aug. 27, 2018). Because 14 CFR § 183.63(c)

requires an ODA holder to “[i]nvestigate any

suspected

unsafe

condition

finding

noncompliance with the airworthiness requirements

…, and report to the Administrator the results of the

investigation and any action taken or proposed,” AHI

seeks to turn this design-defect case into one about its

failure to discharge its ODA duties to identify and

report the unsafe condition of its design – to itself as

the Administrator’s designee.

In other words, AHI claims that its failure to apply

to itself to self-certify any failure is attributable to its

federal role and not its decisions as a private company.

AHI’s argument is precisely the type of “expansion” of

federal-officer removal that Watson held to be at odds

with the removal statute’s language, history, and

purpose. 551 U.S. at 153. It certainly does not

implicate “a significant risk of state-court ‘prejudice’”

that the federal-officer removal statute was meant to

prevent. Watson, 551 U.S. at 152 (2007).

In Watson, Philip Morris claimed the federal

government insisted it use a government-developed

methodology, the Cambridge Filter Method, to test

cigarette tar and nicotine content to enable consumers

to compare different cigarettes. Id. at 155. In 1967, the

FTC took over testing by that method in its own

laboratory. Through an agreement between leading

cigarette companies and the FTC, the companies

disclosed in their advertising the tar and nicotine

ratings from the FTC’s testing. Watson v. Philip

Morris Cos., Inc., 420 F.3d 852 (8th Cir. 2005), rev’d,

551 U.S. 142 (2007).

After 20 years of conducting that testing, “the FTC

decided to terminate its cigarette laboratory, and

instead require the cigarette industry to self-test,

using the Cambridge Filter Method, and to submit

results that would continue to be published in the

Federal Register.” Id. (emphasis added). Under this

new plan, the “FTC retained the right to conduct

unannounced inspections of the industry testing

facilities and the right to confirm the test results

through a government lab.” Id. The FTC also

continued to publish the results and report them to

Congress, just as it did when its own laboratory did

the testing. 551 U.S. at 155.

The Watson state-court complaint charged that

the Cambridge Filter Method, as implemented by

Philip Morris, inaccurately assessed tar and nicotine

content. Id. at 146. The Eighth Circuit nonetheless

sustained removal on federal-officer grounds because

the FTC “exercise[d] the same type of comprehensive,

detailed regulation and does the same kind of ongoing

monitoring as in [government contractor cases, where

removal is upheld].” 420 F.3d at 858.

This Court unanimously reversed and held:

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.” And

that is so even if the regulation is highly

detailed and even if the private firm’s

activities are highly supervised and

monitored. A contrary determination

would expand the scope of the statute

considerably, potentially bringing within

its scope state-court actions filed against

private firms in many highly regulated

industries.

551 U.S. at 153 (emphasis added). The Court further

held that “[n]either language, nor history, nor purpose

lead us to believe that Congress intended any such

expansion.” Id.

After reviewing the history of the statute to guide

its interpretation, this Court held the “removal

statute’s ‘basic’ purpose is to protect the Federal

Government from the interference with its ‘operations’

that would ensue were a State able, for example, to

‘arres[t]’ and bring ‘to trial in a State cour[t] for an

alleged offense against the law of the State,’ ‘officers

and agents’ of the Federal Government ‘acting ...

within the scope of their authority.’” Id. at 150

(alterations in original) (quoting Willingham, 395 U.S.

at 406). Additionally, the statute changes venue from

state to federal to prevent “‘local prejudice’ against

unpopular federal laws or federal officials” or state

acts that “impede through delay federal revenue

collection or the enforcement of other federal law.” Id.

(citations omitted). The Court added that “some of

these same considerations may apply” when a private

person lawfully assists the federal officer “in the

performance of his official duty.” Id. at 151 (citations

omitted).

AHI recognizes that Watson requires an “acting

under” basis for federal officer removal to “go[] beyond

simple compliance with the law” and “the usual

regulator/regulated relationship,” and typically

involves “‘subjection, guidance, or control.’” Pet. 10

(quoting Watson, 551 U.S. at 151, 153, 157). AHI also

asserts that “[i]t is sufficient” (AHI’s words) that the

private party “help[] officers fulfill . . . basic

governmental tasks” or “perform[] a job that, in the

absence of a contract with a private firm, the

Government itself would have had to perform.” Pet. 10

(quoting at Watson, 551 U.S. at 153–54). It therefore

suggests that its issuance of an airworthiness

certificate in its ODA holder status renders it a federal

officer.

However, as the Ninth Circuit held, AHI

improperly interprets these phrases and ignores the

plain meaning of the statutory regime. Pet App. 1012a. For example, Boeing helped the FAA by issuing

airworthiness certificates for its Boeing 737 Max jets,

which demonstrated a propensity to nosedive,

overriding a pilot’s attempt to correct the computergenerated trajectory. Under AHI’s distorted view of

Watson, that certification of compliance delegated to

Boeing rendered the company a federal officer for all

disputes concerning its sensor system until the FAA

decided to take the delegation away last year. See

Statement of FAA Administrator Stephen M. Dickson

before the Committee on Transportation and

Infrastructure,

United

States

House

Representatives (Dec. 11, 2019), available at

https://www.faa.gov/news/speeches/news_story.cfm?n

ewsId=24474 (informing the committee that the

delegation was rescinded). Yet, the FAA did not design

or implement the sensor system that caused the 737

Max’s failures, and Boeing did not design or

implement it as an FAA designee. Boeing merely selfcertified compliance with all general safety

regulations applicable to all planes and not specific to

the system in question. AHI’s misreading of Watson,

then, would make the ODA holder the FAA regardless

of the designation’s limited and specific purposes.

After all, aircraft obtain “type certificates” from

the FAA after the agency reviews manufacturer’s

submissions and finds the “design, test reports, and

computations … show that the product to be

certificated meets the applicable airworthiness,

aircraft noise, fuel venting, and exhaust emission

requirements” of the FARs and that “no feature or

characteristic makes it unsafe for the category in

which certification is requested.” 14 CFR § 21.21(b).

See also 49 U.S.C. § 44704(a)(1). The review is quite

similar to that undertaken for new drug approval by

the FDA. See Merck Sharp & Dohme Corp. v. Albrecht,

139 S. Ct. 1668, 1672-73 (2019). See also Wyeth, 555

U.S. at 570–71 (“a central premise of federal drug

regulation that the manufacturer bears responsibility

for the content of its label at all times.”).

Once a type certificate is issued, each aircraft

must obtain an airworthiness certification, which

indicates that the specific “aircraft conforms to its type

certificate and, after inspection, is in condition for safe

operation.” 49 U.S.C. § 44704(d)(1). The issuance of

airworthiness certificates is typically delegated to an

ODA pursuant to 49 U.S.C. § 44702(d)(1).

In this case, the Ninth Circuit acknowledged this

legal framework and framed the question before it as

“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).” Pet. App. 6a. The Ninth Circuit

derived the question from Watson, thereby

demonstrating its adherence to the decision’s

teachings. Cf. Watson, 551 U.S. at 157 (following the

“FTC’s detailed rules … for testing, requirements

about reporting results, and the like … sounds to us

like regulation, not delegation.”).

Watson also explicitly distinguishes filling out

required forms and obeying federal regulations or

requirements—which may help or assist federal

officials—from acting under a federal agent. Id. at 152.

Thus, it added that “[w]hen a company subject to a

regulatory order (even a highly complex order)

complies with the order, it does not ordinarily create a

significant risk of state-court ‘prejudice,’” and “a statecourt lawsuit brought against such a company” will

not “disable federal officials from taking necessary

action designed to enforce federal law” or “deny a

federal forum to an individual entitled to assert a

federal claim of immunity.” Id. The Ninth Circuit

faithfully applied Watson’s teachings.

Watson’s “Fatal Flaw” Discussion

Related to an Analogy to

Government Contractors, Not to

Authority to Certify Compliance

with the Law.

AHI contends that the Ninth Circuit’s analysis

erred because it did not give weight to the formal

designation it received from the FAA to self-certify

and that the legal designation of AHI as an ODA

holder transformed everything it did into actions

attributable to the FAA. To AHI, this constituted a

deviation from Watson, which recognized that a formal

delegation of legal authority would constitute evidence

of “acting under” and its absence in Watson was a

“fatal flaw” in Philip Morris’s argument. Pet. 11 (citing

Watson, 551 U.S. at 156). AHI’s assertion

misapprehends Watson’s discussion.

In Watson, the Eighth Circuit likened Philip

Morris’s situation to that of a government contractor.3

Watson, 420 F.3d at 858 (“[T]he FTC exercises the

The government contractor defense involves the “‘uniquely

federal interest[ ]’ of ‘getting the Government’s work done’ [and]

requires that, under some circumstances, independent

contractors be protected from tort liability associated with their

performance of government procurement contracts.” In re Agent

Orange Prod. Liab. Litig., 517 F.3d 76, 87 (2d Cir. 2008) (quoting

Boyle v. United Technologies Corp., 487 U.S. 500, 504-05 (1988)).

same type of comprehensive, detailed regulation and

does the same kind of ongoing monitoring as in

[government contractor cases where removal is

permitted]”). See also Watson, 551 U.S. at 157. Yet, it

was the absence of documents that could attest to that

special relationship between a government and its

contractor that was the “fatal flaw” in that argument,

Id. at 156, not the absence of a formal delegation of

compliance authority, as AHI claims. Recall that the

underlying tort claim against Philip Morris was that

the Cambridge Testing Method, as implemented by

the company, gave falsely favorable tar and nicotine

ratings to its cigarettes. Thus, the dispute centered

upon the testing methodology. Philip Morris defended

against the charge by claiming that it was using a

methodology developed by the federal government and

mandated by the FTC, so its function was essentially

ministerial.

Rather than consider the design-defect claim

underlying the case “[f]or argument’s sake,” in order

to reach the broader issue of what removal for a status

akin to a government contractor required, this Court

noted that there was no evidence of “any contract, any

payment, any employer/employee relationship, or any

principal/agent arrangement.” Id. That same kind of

close working relationship does not exist through ODA

status. See Charlima, 873 F.2d at 1081 (“the FAA does

not control the day-to-day operations of designated

airworthiness representatives. … it does not manage

the details of a designated representative’s work or

supervise him in his daily investigative duties.”).

Watson contrasted the facts before the Court with

government-contractor cases, where a private

company produces an item the government needs,

rather than certifies compliance with the law. 551 U.S.

at 153. It was only in this context that the lack of

evidence of a formal relationship constituted a “fatal

flaw.” Compliance with federal regulations remains

compliance, not delegation, even with a formal

designation, see Pet. App. 6a-7a n.6, unless negligence

in the carrying out of the delegation is alleged. Yet,

that is not at issue in this case.

As an example of removal based on the type of

relationship required, this Court, Watson, 551 U.S. at

153-54, pointed to Winters v. Diamond Shamrock

Chem. Co., 149 F.3d 387 (5th Cir. 1998), cert. denied,

526 U.S. 1034 (1999) (holding federal officer removal

appropriate because of the direct control the

“government exercised over the composition and

production of Agent Orange,” the product in question,

was supplied by a vender to the government “under

threat of criminal sanctions.”). There, removal was

warranted because any state lawsuit in that case

would focus on the legitimacy of the federal decision,

rather

than

the

actions

the

private

manufacturers—precisely the risk federal officer

removal was intended to address. Here, in contrast, it

is AHI’s design decisions, not any federal one, that is

at issue.

Because Philip Morris was not a government

contractor (and neither is AHI), Watson went no

further in its analysis, other than to point out that not

every contract with the government will “enable

private contractors to invoke the statute.” Watson, 551

U.S. at 154.4 Ignoring that statement is one of the fatal

flaws in AHI’s argument. Moreover, Watson further

recognized that there is a distinction in a case where

plaintiffs challenge the “design” of a product where the

government does not specify the design, and one

where the company or industry conducts testing for

compliance purposes. Id. That distinction exists here,

and the Ninth Circuit’s decision conforms to that

recognition in Watson.

Watson teaches that AHI’s status as an ODA

holder that can issue “FAA certifications” on its own

aircraft is not sufficient to qualify as acting under the

authority of the FAA. AHI’s status as an ODA holder

does not confer upon AHI the close working

4 AHI invokes the Solicitor General’s responses in oral argument

in Watson for what it asserts was a sympathetic position on ODA

status. Pet. 13-15. Yet, Watson denies that every contract enables

removal, which is what AHI suggests in extensively quoting the

oral argument. And nothing in Watson indicates that this Court

adopted the SG’s position, which did not necessarily reflect the

FAA’s own views or that of Congress, but can instead be premised

on other considerations unique to that office. See Neal Devins,

Unitariness and Independence: Solicitor General Control over

Independent Agency Litigation, 82 Cal. L. Rev. 255, 263 (1994).

The Solicitor General’s position is owed no deference. As the

litigation position of the United States in interpreting a statute

addressing federal jurisdiction, it is no more authoritative than

that of counsel for any other party. Courts defer to a federal

agency in interpreting a statute only “when it appears that

Congress delegated authority to the agency generally to make

rules carrying the force of law, and that the agency interpretation

claiming deference was promulgated in the exercise of such

authority.” United States v. Mead Corp., 533 U.S. 218, 226-27

(2001). Federal-officer status is not such a delegation.

relationship with the federal government required to

be acting under the authority of the federal

government. See Charlima, 873 F.2d at 1081. And, its

ODA status has nothing to do with the design choices

AHI made in its private capacity.

AHI was not carrying out government functions in

which the decisions could be imputed to the

government. The FAA did not specify the design or

implementation of requirements with significant

government oversight. Cf. Getz v. Boeing Co., 654 F.3d

852, 861 (9th Cir. 2011). Watson distinguished

between that type of nondiscretionary assistance from

private contractors who simply comply with the law,

Watson, 551 U.S. at 153, and the Ninth Circuit’s

decision took that distinction to heart. There is no

conflict between the two decisions that warrants the

exercise of this Court’s discretion.

II. AHI Conjures Up a Circuit Conflict that Does

Not Exist.

AHI attempts to fabricate a circuit conflict by

pitting the Ninth and Seventh Circuits’ decisions—

both issued post-Watson—against a pre-Watson

decision from the Eleventh Circuit. Magnin v.

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

AHI’s alleged circuit conflict does not exist.

Before noting the critical factual distinctions

between Magnin and the case at bar, Magnin does not

create a circuit conflict because it was decided before

Watson. The Seventh Circuit’s post-Watson decision in

Lu Junhong v. Boeing Co., 792 F.3d 805, 813 (7th Cir.

2015), considered Magnin and found the decision both

“inconsistent with Watson” and not “authoritative”

because it was decided before Watson. Id. at 810. The

Sixth Circuit, too, criticized reliance on Magnin as preWatson case law. See Ohio State Chiropractic Ass’n v.

Humana Health Plan Inc., 647 F. App’x 619, 622 (6th

Cir. 2016). This Court’s decision in Watson has unified

the lower courts’ interpretation of the federal-officer

removal statue, and—contrary to AHI’s assertions—

there is no need for this Court to intervene to clarify

Watson’s proper application. Dietz, 168 F. Supp. 3d at

754 (“Since Watson . . . the vast majority of those

[lower] courts [that have confronted arguments for

removal in the aviation context] have remanded the

cases to state court.”).

Further, in Magnin, the plaintiff “specifically

named Smith [a Teledyne employee] as a DMIR

[Designated

Manufacturing

Inspection

Representative] . . . and “authorized agent of the

FAA].” Id. at 1428. Plaintiff accused him of

“proximately caus[ing] the fatal crash” by “sign[ing]

the export certificate only in his capacity as an agent

of the FAA, i.e., as a DMIR, and the complaint itself

pleads that connection.” Id. Thus, the cause of action

was explicitly against an agent of the FAA, operating

in that capacity, for negligently performing those

federal duties.

As several courts have observed, because of the

unusual way the case was framed, Magnin is entirely

distinguishable from cases where the complaint does

not specifically name an authorized agent of the FAA

and implicate that agent’s actions “only in his capacity

as an agent of the FAA.” See id. See also Swanstrom v.

Teledyne Continental Motors, Inc., 531 F. Supp. 2d

1325, 1332 (S.D. Ala. 2008); Britton, 2005 WL

1562855, at *4. The complaint at bar makes no such

claims.

Like this case, Lu Junhong—a case AHI invokes

as conflicting with Magnin—involved a defectivedesign claim in an aircraft crash. 792 F.3d at 806-07.

Boeing contended, as does AHI here, that “the FAA

has granted Boeing authority 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 808. The company further

asserted that “[i]n carrying out those functions,

Boeing is subject to FAA control, and it acts as a

representative of the FAA Administrator.” Id.

The Seventh Circuit squarely rejected the notion

that a company’s acts of self-certification could

support a form of “acting under a federal officer.”

Judge Easterbrook, writing for the unanimous court,

explained, “we know from Watson v. Philip Morris

Cos. 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 citations omitted).

Lu Junhong recognized it was “linguistically

possible to call self-certification a form of ‘acting

under’ the FAA,” but held that “certifications just

demonstrate a person’s awareness of the governing

requirements and evince a belief in compliance.” Id. at

808. The court said the “right question is whether

being subject to governmental requirements is enough

to make a person one ‘acting under’ the authority of

those regulations, for the purpose of § 1442,” when 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 (quoting Watson, 551 U.S.

at 145).

Boeing argued before the Seventh Circuit, as AHI

does here, that the Philip Morris-FTC relationship in

Watson was a “faux delegation, while its relation with

the FAA is real delegation.” Id. at 809. Boeing pointed,

as AHI does, to 49 U.S.C. § 44702(d)(1), which

“permits the FAA to conserve its resources by

transferring some checking and certification functions

to manufacturers.” Id. at 810. But, the court said that

the regime outlined in § 44702(d)(1):

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.

While AHI treats the court’s rulemaking

discussion as the sole rationale behind the decision

(one that the Ninth Circuit did not follow), the Seventh

Circuit used rulemaking as a touchstone to

distinguish the inspection and certification functions

Boeing claimed it did for the FAA from those that

might actually generate “acting under” status. The

distinction did not appear out of whole cloth. Watson

too distinguished the delegation of legal authority,

such as that used in rulemaking, from mere rule

compliance. Id. (Watson “used rulemaking rather than

rule compliance as the key ingredient”) (citing 551

U.S. at 157). Rather than demonstrate discord with

Watson, the rulemaking discussion demonstrates an

understanding of its fine distinctions.

More critically and consistently with the Ninth

Circuit’s ruling below, the Seventh Circuit stated: “If

the FAA gave Boeing a power to issue a conclusive

certification of compliance, even though not to

establish substantive standards, the situation would

come closer to what Watson suggested might suffice.”

Id. Instead, the certification is not conclusive, and “a

court must treat its self-certification as establishing

that its flight-control systems do meet all federal

rules.” Id.

Based on Watson, Lu Junhong concluded that

“neither the language nor the history of § 1442

justified reading it to cover the activities of regulated

businesses.” Id. at 809. A qualifying person “acting

under” a federal agent, for example, would be “a local

police officer who accompanies a federal agent on a

drug raid and acts under the federal agent’s direction.”

Id.

The Ninth Circuit similarly held that AHI did

nothing more than certify compliance with federal

regulations and, under Watson, that “did not satisfy

the ‘acting under’ requirement of § 1442(a)(1).” Pet.

App. 16a.

All three circuit decisions—the pre-Watson

Eleventh Circuit decision in Magnin, along with the

more recent Seventh and Ninth Circuit rulings—have

a consistent holding: self-certification, even under a

formal designation, is compliance with FARs and not

acting under a federal officer. In contrast, a lawsuit

that asserts negligence in the discharge of

unquestionably federal duties can be acting under a

federal officer.

Still, the question raised by the Petition in this

case is a theoretical one. The Plaintiffs sued AHI

because it decided against incorporating a crashresistant fuel system into the helicopter, which would

have prevented a hard landing from causing the

aircraft to burst into flames. AHI made that choice as

a private company, not as a designee of the FAA or in

the course of its ODA responsibilities. The FAA does

not design helicopters, which is why helicopters can

both have unique designs and still comply with the

FAA regulations.

III. The Petition Does Not Present a Recurring

Issue of Exceptional Importance, and the

Case Comprises a Poor Vehicle for Review.

AHI further asserts that the Petition raises a

recurring issue of exceptional importance, apparently

because aircraft manufacturers continue to make the

federal-officer removal argument and continue to be

rebuffed by the courts. That broad consensus against

AHI’s position does not transform settled law into a

recurring issue of great national importance no matter

how vehemently aircraft manufacturers assert

otherwise.

Courts applying Watson to aviation-related causes

of action and claims of FAA “delegated authority”

routinely hold that removal is improper. See Dietz, 168

F. Supp. 3d at 753 (“Since Watson, several district

courts have confronted similar arguments for removal

in the aviation context. The vast majority of those

courts have remanded the cases to state court.”). The

frequency with which these cases occur, often in

unpublished decisions and without an appeal,

demonstrate that the issue does not qualify as a

recurring issue of exceptional importance.

The cases uniformly hold that “Congress never

intended to afford [aircraft engine manufacturers]

federal officer status through their compliance with

federal laws.” Id. at 755. No court has signaled

disagreement with or even questioned the Seventh

Circuit’s Lu Junhong’s result on federal officer

removal, which the Ninth Circuit has now joined.

Instead, virtually all have followed that result. See

Swanstrom, 531 F. Supp. 2d at 1333 (“Cirrus [aircraft

manufacturer] can not claim removal under 28 U.S.C.

§ 1442(a)(1) simply because they have employees who

are designated FAA authorized agents.”); Sesay v.

Raytheon Aircraft Co., 2012 WL 847240, at *2 (C.D.

Cal. Jan. 5, 2012) (“CMI [aircraft engine

manufacturer] has presented no evidence of any

contract, any payment, any employer/employee

relationship, or any principal/agent arrangement that

would support an inference that CMI and the Federal

Government had any special relationship beyond the

usual regulator/regulated relationship.”); West v.

A & S Helicopters, 751 F. Supp. 2d 1104, 1110 (W.D.

Mo. 2010) (“[E]ven though an employee ‘acts under’

the Federal Aviation Administrator when carrying out

designee duties, MD Helicopters is not considered to

have acted under a federal officer or agency via this

employee.”); O’Brien v. Cessna Aircraft Co., 2010 WL

4721189, at *13 (D. Neb. Jul. 21, 2010) (“[T]he court

finds Cessna's argument unpersuasive it was ‘acting

under’ the direction of a federal officer by issuing an

airworthiness certificate for the Cessna 208B.”);

Vandeventer v. Guimond, 494 F. Supp. 2d 1255, 1267

(D. Kan. 2007) (“The law is clear that Guimond may

not remove” where he conducted the airworthiness

inspection and certification); Carter v. Cent. Reg’l W.

Virginia Airport Auth., 2016 WL 4005932, at *11 (S.D.

W.Va. Jul. 25, 2016) (“Courts have allowed removal

under §1442 for aviation-related work after Watson

only when the federal government directly hires a

contractor to perform particular types of functions on

its behalf.”); Andera v. Precision Fuel Components,

LLC, 2012 WL 12509225, at *3 (W.D. Wash. Aug. 1,

2012) (“Based on Precision's [aircraft parts

manufacturer] description of FAA certification

procedures and how they apply to Precision, it is clear

that Precision employees are not carrying out

directions from the FAA. Instead, they are merely

complying with federal regulations and using their

own discretion to perform and certify their repairs.”).

The court in Andera further observed that

“Precision proposes a vast expansion of the federal

courts’ jurisdiction, making virtually any case in

which a defendant carries a federal certification

removable. Precision cites no controlling authority in

support of this argument, which the Court rejects.” Id.

at 4.

The issue of certification as an ODA holder cannot

be removed from the causal nexus requirement that

adheres to federal-officer analysis. See Mesa, 489 U.S.

at 131. Here, the Ninth Circuit did not reach that

question as it was unnecessary to the result.

Still, courts have made a useful distinction

between the private and public obligations of an FAAdesignee for federal-officer removal analysis. In

O’Brien, surveying decisions of other courts, the court

made plain that airplane manufacturer “Cessna

cannot claim removal is appropriate under 28 U.S.C.

§ 1442(a)(1) simply because Cessna is a DOA holder as

designated by the FAA,” because “‘removal is

appropriate only where the FAA representative has

been specifically named and the allegations relate to

conduct of the FAA representative while acting in the

capacity of an FAA representative.’” 2010 WL

4721189, at *13 (quoting Swanstrom, 531 F.Supp.2d

at 1333). The allegations had no relationship to

Cessna’s obligations as an FAA designee under federal

law.

Here as well, Plaintiffs have brought an action

based solely on state law negligence and products

liability and have not averred that AHI’s discharge of

its ODA obligations gave rise to liability. There is no

causal connection between AHI’s ODA status and its

alleged liability in this action. AHI has failed to carry

this second required element for removal as well,

which the Ninth Circuit found unnecessary to discuss.

The existence of this and issues about AHI’s asserted

federal defense, both of which are elements of federalofficer removal, further make this case a poor vehicle

for considering the scope of removal when an aircraft

manufacturer asserts ODA status.

IV. The Decision Below is Correct.

The Ninth Circuit was correct to affirm the

District Court’s remand order. AHI designed and

manufactured the helicopter, not the FAA. If FAA

regulations specified the helicopter design, all

helicopters, regardless of brand, would be the same.

But the FAA does not mandate a particular design.

Nothing about the complaint implicates federal

responsibilities.

In contrast to mere legal compliance, even as an

ODA, decisions that permit removal require the

private defendant to undertake a task directed by the

federal agency. For example, where “mold remediation

firms hired by” the FAA to remove contamination at

Detroit’s airport were sued by air traffic controllers in

state court for injuries sustained from the project, the

Sixth Circuit upheld removal. See Bennett v. MIS

Corp., 607 F.3d 1076, 1082 (6th Cir. 2010). It relied

upon facts that the remediation was carried out under

detailed FAA instructions about the materials and

methods utilized in addressing the mold, with an on-

site federal officer directly supervising each

remediation. Id. at 1087. The circumstances

constituted “assistance [that] went beyond ‘simple

compliance with the law,’” id. at 1088 (quoting

Watson, 551 U.S. at 153), and satisfied the acting

under a federal officer standard.

Other courts also have followed this clear-cut

distinction by limiting § 1442 removal to factual

circumstances not found in this case. See Boyd v.

Boeing Co., No. 15-0025, 2015 WL 4371928 (E.D. La.

July 14, 2015) (allowing Boeing to remove where

mechanic contracted mesothelioma while working on

U.S. military plane made by Boeing to federal

specifications); Scrogin v. Rolls-Royce Corp., No. 3:10cv-442 WWE, 2010 WL 3547706 (D. Conn. Aug. 16,

2010) (allowing Rolls-Royce to remove because

helicopter was built for the U.S. military under

federally generated military contractor specifications).

As Watson explained, where a “private contractor ... is

helping the Government to produce an item that it

needs,” removal under § 1442 may be appropriate. 551

U.S. at 153.

AHI, however, did not design or build this

helicopter according to government specifications, as

a military contractor might. Like Boeing in Lu

Junhong, AHI created its own designs and then

certified those designs and their manufacture to the

FAA as compliant with minimal federal safety

regulations. As the Seventh Circuit found in Lu

Junhong and the Ninth Circuit found in this case, that

certification does not constitute “acting under” a

federal officer pursuant to § 1442, but mere

compliance with the law. See 792 F.3d at 809. See also

Pet. App. 15a. AHI’s delegated FAA acceptance of

certification authority is separate from and, in the

words of the law, “distinct” from its private status

when it certifies compliance. See Pet. App. 71a.

Critically, this lawsuit is not about the way AHI

conducted its FAA certifications, but about the way it

designed and manufactured the subject helicopter. Cf.

Watson, 551 U.S. at 154 (“petitioners appear to

challenge the way in which Philip Morris ‘designed’ its

cigarettes, not the way in which it (or the industry

laboratory) conducted cigarette testing”). Both Lu

Junhong and the Ninth Circuit in this case found that

fact salient. Lu Junhong, 792 F.3d at 810; Pet. App.

39a.

AHI’s argument in favor of federal-officer removal

is little more than window-dressing to a preemption

defense that is not a basis for removal to federal court.

See Franchise Tax Bd. v. Constr. Laborers Vacation

Tr. for S. Calif., 463 U.S. 1, 14 (1983) (“[A] case may

not be removed to federal court on the basis of a

federal defense, including the defense of preemption,

even if the defense is anticipated in the plaintiff’s

complaint, and even if both parties admit that the

defense is the only question truly at issue in the

case.”). Federal-officer removal cannot, and should

not, serve as an end-around this Court’s longstanding

precedent that a federal affirmative defense cannot

serve as a basis for removal to federal court.

CONCLUSION

The Petition for a writ of certiorari should be

denied.

Respectfully submitted,

May 21, 2020