The Supreme Court Will Not Hear Airbus Helicopters, Inc.'s Argument That Federal Officer Removal Statute Applies To FAA Designees

The United States Supreme Court ended Airbus Helicopters, Inc.'s ("AHI") bid to remove a suit against it to federal court under the federal officer removal statute (28 U.S.C. § 1442(a)(1)) when it denied AHI's Petition for Writ of Certiorari, seeking review of the Ninth Circuit's ruling remanding the matter to state court.

Airbus Helicopters, Inc. v. Riggs arose out of a 2018 helicopter crash in the Grand Canyon. AHI removed the original state court action to the District Court for the District of Nevada under the federal officer removal statute, which states that a lawsuit filed in state court may be removed to federal court if it is directed against "any officer (or any person acting under that officer) of the United States...relating to any act under color of such office..." 28 U.S.C. § 1442 (a)(1)) (emphasis added). AHI argued that, because it designed and manufactured the accident helicopter with authority delegated to it by the Federal Aviation Administration ("FAA") under an Organization Designation Authorization ("ODA"), it was "acting under" a federal officer in the meaning of the statute. Both the district court and the Ninth Circuit rejected AHI's argument and held that the case belonged in state court. For an in-depth discussion of the Ninth Circuit's holding, see our previous reporting on the case in the Winter 2019 Edition of Aviation Happenings, available here.

AHI sought Supreme Court review of the Ninth Circuit's opinion and in doing so asked the Court to decide "[w]hether a private party is 'acting under' a federal officer and may remove under 28 U.S.C. § 1442(a)(1), where it is carrying out duties formally and expressly delegated by the Federal Aviation Administration." Urging the Court to answer in the affirmative, AHI argued that the Ninth Circuit's ruling to the contrary conflicted with the prior Supreme Court precedent set in Watson v. Philip Morris Cos., 551 U.S. 142 (2007). Watson held that, in order for a private entity to be "acting under" a federal officer, there must be "evidence of some... special relationship" between the private party and a federal officer that is "distinct from the usual regulator/ regulated relationship." AHI argued that the formal delegation of authority that AHI received from the FAA constituted such a special relationship, and the Ninth Circuit's rejection of that notion conflicted with Watson.

AHI also identified a circuit split on the issue of whether FAA delegation supports "acting under" status, with the Eleventh Circuit holding that it does, and the Ninth and Seventh Circuits, for different reasons, holding that it does not.

But the Supreme Court denied AHI's petition, making the recent appeals court ruling rejecting ODA status as a basis for removal under the federal officer removal statute the law in the Ninth Circuit. Airbus Helicopters, Inc. v. Riggs, No. 19-1158, 2020 U.S. LEXIS 3449, -- S. Ct. – (Mem.) (2020).

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