No “Acting Under” Federal Question Jurisdiction for Self-Certifying Aircraft Manufacturer

On September 20, 2019, the Ninth Circuit addressed federal question jurisdiction under 28 U.S.C. § 1442(a)(1) as applied to an aircraft manufacturer that self-certified a helicopter involved in a fatal crash. The issue is of particular interest now given the ongoing Boeing 737 MAX controversy that also was self-certified.1

Riggs v. Airbus Helicopters,2 involved the fatal crash of an Airbus helicopter that was being used to tour the Grand Canyon. After the crash, a decedent’s family filed suit against Airbus Helicopters (AHI) and the owners-operators of the tour group in Nevada state court. As against AHI, the plaintiff alleged that the helicopter was defectively designed because its fuel tank could not withstand the impact of a crash without bursting into flames and engulfing its passengers.

AHI removed to federal court under 28 U.S.C. § 1442(a)(1), which permits removal of an action against an officer or any person acting under that officer, of the U.S. or any agency thereof, in an official or individual capacity for or relating to any act under color of such office. The plaintiff then moved to remand on the grounds that AHI could not satisfy the conditions for 28 U.S.C. § 1442(a)(1) removal. The District Court remanded the action and AHI appealed.

On appeal, the Ninth Circuit affirmed. It began its discussion first with a general background of the Federal Aviation Administration (FAA), and how the FAA certifies aircraft. Specifically, the Ninth Circuit explained that the FAA promulgated the Federal Aviation Regulations (FARs) which contain the standards for certification of helicopters, and that after a manufacturer obtains a type certificate approving the helicopter’s design, it cannot make any changes to that design without a Supplemental Certificate. However, to help ameliorate the effect of the FAA’s limited resources, the FAA instituted the Organization Designation Authorization (ODA) program, pursuant to which the FAA can delegate to certain manufacturers the authority to perform certain functions of the FAA, including issuing Supplemental Certificates provided that the manufacturers determine that their products comply with the applicable FARs. AHI is one such entity to which that authority was designated.

Accordingly, AHI argued that as an FAA delegee, it did more than just comply with federal law; rather, AHI argued, it assists the FAA in carrying out its duties. On that basis, AHI argued that the District Court had federal question jurisdiction under 28 U.S.C. § 1442(a)(1).

The Ninth Circuit, in a 2-1 decision, rejected that argument. It explained that under the applicable case law, for 28 U.S.C. § 1442(a)(1) jurisdiction to apply, AHI must show how it was involved in an effort to assist or carry out the duties of the FAA, not that it was merely complying with federal regulations. The pivotal question then was whether AHI’s ODA authority actually assisted the FAA in carrying out its duties, or whether in exercising its ODA authority, AHI was simply complying with federal law.

The seminal case on the issue of 28 U.S.C. § 1442(a)(1) jurisdiction is Watson v. Phillip Morris Cos., Inc.,3 in which the Supreme Court held that a company must have more than a close working relationship with the applicable government agency to give rise to 28 U.S.C. § 1442(a)(1) jurisdiction. It also must do more than merely comply with federal regulations, regardless of how detailed those regulations are. Because the Ninth Circuit had not applied Watson in the context of aircraft, it looked to the Seventh Circuit’s decision in Lu Junhong v. Boeing Co.,4 a case applying Watson in the context of FAA ODA certification, for direction.

Lu Junhong involved a dispute over the design of a plane that broke apart upon landing. There, Boeing made essentially the same argument as AHI. Namely, it contended that it had been granted authority by the FAA to use FAA-approved procedures to conduct analyses and testing necessary to procure an FAA type certificate. The Seventh Circuit in Lu Junhong rejected Boeing’s argument as the Ninth Circuit did AHI’s. The Seventh Circuit held that, applying Watson, it was not enough that Boeing’s activities monitored in detail to give rise to 28 U.S.C. § 1442(a)(1) jurisdiction. It similarly also was not enough that Boeing applied FARs in issuing a type certificate. Rather, the relevant designating agency (the FAA) must designate rule making authority, not just authority to certify compliance with applicable rules in order for 28 U.S.C. § 1442(a)(1) jurisdiction to apply.

Persuaded that the Seventh Circuit’s Lu Junhong decision was consistent with Watson, the Ninth Circuit held that the District Court was correct to hold that the case should be remanded to state court. While AHI issued Supplemental Certificates for the accident helicopter, it had not issued any rules, and, in any event, the FAA had the authority to revoke any action taken by AHI in issuing such certificates proving that the FAA had not designated full type certificate authority. Thus, AHI’s actions were no more than rule compliance, and did not give rise to 28 U.S.C. § 1442(a)(1) jurisdiction.5



1 Notwithstanding its self-certification, Boeing has not yet argued that federal courts have 28 U.S.C. § 1442(a)(1) jurisdiction in the cases arising from Boeing 737 MAX crashes, although as set forth herein, Boeing has made that argument in other cases.

2 No. 18-16396 (9th Cir. Sept. 20, 2019).

3 551 U.S. 142, 145-47 (2017).

4 792 F.3d 805 (7th Cir. 2015).

5 In a pointed dissent, one judge argued that the majority misapplied Watson. The judge further argued that AHI “acts under” a federal agency (the FAA) when it issues Supplemental Certificates. In making those arguments, the dissenting judge acknowledged that they were contrary to Lu Junhong, but would have held that Lu Junhong was wrongly decided. According to the dissenting judge, the majority and the Lu Junhong court both understated the extent of AHI’s authority under the ODA program because by certifying aircraft, the manufacturer effectively gives the FAA’s imprimatur on the aircraft.

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