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ABA TIPS Aviation and Space Law Committee Newsletter - January 4, 2021

Aircraft Manufacturers’ Attempted Use of Federal Officer Removal: The Lessons of Riggs v. Airbus Helicopters

By Andrew C. Robb

When bringing a products liability lawsuit against an aircraft manufacturer in state court, the Plaintiff can almost guarantee that the manufacturer will consider removal of the case to federal court.  To that end, the manufacturer may argue that when designing or manufacturing the aircraft at issue, it was “acting under” a federal officer and is therefore entitled to removal under 28 U.S.C. § 1442(a)(1).  However, recent federal appellate decisions—highlighted by the Ninth Circuit’s decision Airbus Helicopters Inc. v. Riggs[1]and the Supreme Court’s unanimous denial of Airbus’s petition for certiorari­—virtually extinguish the manufacturers’ case for federal-officer removal.

In order to fulfill the “acting under” requirement of § 1442(a)(1), a manufacturer must demonstrate that it was “involved in an effort to assist, or to help carry out, the duties or tasks of the federal superior.”[2]  To help ameliorate the FAA’s limited resources, Congress authorized the FAA to create the Organization Designation Authorization (“ODA”) Program, which “allows an organization to perform specified functions on behalf of the [FAA] related to engineering, manufacturing, operations, airworthiness, or maintenance.”[3]  The ODA Program, commonly referred to as “self-certification,” received international attention in the wake of the Boeing 737 Max crashes in 2018 and 2019. [4]

In just the last fifteen years, a number of major aircraft manufacturers—including Boeing,[5] Teledyne Continental Motors,[6] and Airbus Helicopters[7]—have sought to remove products liability cases to federal court by citing the “federal officer” prong § 1442(a).  However, the Ninth Circuit’s rejection of Airbus Helicopter’s (“AHI”) attempt at federal-officer removal in Riggs, amplified by the Supreme Court’s denial of AHI’s petition for certiorari, deals a near-fatal blow to this stale argument for federal removal.

I. The Trouble with Aircraft Manufacturers’ Argument for Federal-Officer Removal

Riggs was not the first federal appellate case to address an aircraft manufacturer’s argument for federal-officer removal.  In Lu Junhong v. Boeing Co.,[8] Boeing argued that it was entitled to removal under § 1442(a)(1) because it was “acting under” the authority of the federal government after the FAA authorized it “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.”[9]  The Seventh Circuit rejected Boeing’s argument, finding that even where when a federal agency directs, supervises, or monitors a company’s activities “in considerable detail,” that company is not “acting under” a federal agency.[10]  When the Ninth Circuit confronted the identical argument from AHI in Riggs, the Court “agree[d] generally with the holding of Lu Junhong” and rejected AHI’s claim for federal removal.[11]

In reviewing both Lu Junhong and Riggs, several consistent themes emerge that expose the weakness of an aircraft manufacturer’s case for removal.  First, both the Seventh and Ninth Circuits found that the aircraft manufacturer’s argument conflicted with the Supreme Court’s seminal case on federal-officer removal, Watson v. Philip Morris Cos., Inc..[12] In Watson, the Supreme Court addressed federal-officer removal in the context of tobacco company Philip Morris’s contention that its close working relationship with a federal agency satisfied the “acting under” requirement.  The Court held that Philip Morris did not satisfy the “acting under” requirement of § 1442(a)(1) because mere compliance with federal regulations did not constitute “a statutory basis for removal.”[13]  When applying Watson to the FAA regulatory regime, both the Ninth and Seventh Circuits found that the authority the FAA delegates to aircraft manufacturers “is still a power to certify compliance, not a power to design the rules for airworthiness.”[14]  In other words, both circuit courts cited Watson for the proposition that “delegated compliance” is still compliance, and compliance alone does amount to “acting under” a federal agency.[15]

Additionally, both the Seventh and Ninth Circuits recognized that accepting the aircraft manufacturer’s argument would have far-reaching implications for other regulated industries.  The Riggs Court held: “[A]s the Seventh Circuit cogently observed, several other industries, including the energy and health sectors, certify compliance without ‘acting under’ the regulating agencies.”[16]  Lu Junhong went even further, finding that “[e]very regulated firm must use its own staff to learn whether it has satisfied federal regulations,” and the Court listed numerous examples of industries that could be affected by the aircraft manufacturer’s argument that self-certification is sufficient to warrant federal-officer removal.[17]  Since both circuits cited other industries that arguably employ a “self-certification” process, it seems they appreciated the undesirable and sweeping effect that the aircraft manufacturers’ position would have across other regulated industries.

II. The Petition for Writ of Certiorari in Riggs

Following the Ninth Circuit’s decision in Riggs, AHI sought a writ of certiorari from the Supreme Court.  In addition to arguing that the federal regulatory regime meant that AHI was “acting under” a federal agency, AHI’s petition pursued two recurring non-statutory arguments that manufacturers have made in favor of federal removal: 1) there is a circuit split on the issue, and 2) the Solicitor General has previously argued that aircraft manufacturers are “acting under” a federal officer when delegated authority to issue certificates of airworthiness.

Seeking to entice the Justices with circuit split, Airbus argued that the Ninth and Seventh Circuits’ decisions—both issued post-Watson—conflicted with a pre-Watson decision from the Eleventh Circuit in Magnin v. Teledyne Continental Motors.[18]  However, setting aside the merits of the Eleventh Circuit’s decision, Mangin was decided over ten years before Watson, the Supreme Court’s seminal decision on federal-officer removal.

AHI also invited the Justices to call for the views of the Solicitor General (or, issue a “CVSG”) before deciding whether to grant its certiorari petition.  AHI pointed to the Solicitor General’s brief in Watson, where it argued 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.”[19]  Of course, the Supreme Court in Watson did not adopt the Solicitor General’s position, and the views of the Solicitor General are owed no deference before the Court.

On June 29, 2020, the Court denied Airbus’s writ of certiorari, and it did not issue a CVSG.  The Supreme Court’s denial of certiorari is not an outright stamp of approval on the Ninth Circuit’s decision in Riggs; petitions for certiorari are rarely granted, and the Court can deny a petition for a number of reasons.

Caveats aside, after the denial of certiorari in Riggs, barring a meaningful change to the judicial landscape—e.g., a conflicting circuit court decision or a modification to the statutory regime—an aircraft manufacturer will not, and should not, be able to successfully remove a state-court action under the “federal officer” prong of § 1442(a).

Andrew C. Robb (acr@robbrobb.com) is an Associate at Robb & Robb LLC in Kansas City, Missouri, where he practices aviation law.  He was on the Plaintiff/Respondent’s Brief in Opposition to the Petition for Writ of Certiorari in Airbus Helicopters Inc. v. Riggs.

[1] Supreme Court Dkt. No. 19-1158.

[2] Fidelitad, Inc v. Insitu, Inc., 904 F.3d 1095, 1099 (9th Cir. 2018) (citation and internal quotation marks omitted)

[3] 14 C.F.R. § 183.41(a).

[4] “After Boing Crashes, Sharp Questions About Industry Regulating Itself,” March 26, 2019, https://www.nytimes.com/2019/03/26/us/politics/boeing-faa.html

[5] Lu Junhong v. Boeing Co., 792 F.3d 805, 813 (7th Cir. 2015).

[6] Swanstrom v. Teledyne Cont’l Motors, Inc., 531 F. Supp. 2d 1325 (S.D. Ala. 2008).

[7] Riggs v. Airbus Helicopters, Inc., 939 F.3d 981 (9th Cir. 2019).

[8] 792 F.3d 805 (7th Cir. 2015)

[9] Id. at 807–08.

[10] Id. at 809

[11] 939 F.3d at 989.

[12] 551 U.S. 142 (2007).

[13] Id. at 153

[14] 939 F.3d 988 (citing Lu Junhong, 792 F.3d at 810 (emphasis in original)).

[15] Id.

[16] 939 F.3d at 985 n.6.

[17] 792 F.3d at 809.

[18] 91 F.3d 1424 (11th Cir. 1996).

[19] 939 F.3d at 993 (O’Scannlain, J., dissenting)

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