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Federal Officer Removal — Requirements — Private Entity Whose Employees Are “Federal Officers” for Purposes of Removal May Not Itself Remove under §1442

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From West v. A&S Helicopters, 2010 U.S. Dist. LEXIS 120948 (W.D. Mo. Nov. 15, 2010):

B. Federal Officer Removal Under 28 U.S.C. § 1442 The Federal Officer Removal Statute, 28 U.S.C. § 1442(a)(1), allows removal to a federal forum of any civil or criminal 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, sued in an official or individual capacity for any act under color of such office." The statute has long been interpreted to require four elements: (1) a defendant has acted under the direction of a federal officer, (2) there was a causal connection between its actions and the official authority, (3) the defendant has a colorable federal defense to the plaintiff's claims, and (4) the defendant is a "person" within the meaning of the statute. Dahl v. R.J. Reynolds Tobacco Co., 478 F.3d 965, 967 n.2 (8th Cir. 2007) (citing Jefferson County v. Acker, 527 U.S. 423, 430-31 (1999)). As to issue one, MD Helicopters appears to argue that it "acted under" the direction of a federal officer under the following theory: MD Helicopters' employees are an extension of itself and are the same legal entity. Because some of its employees carry out delegated functions assigned to them by the Federal Aviation Administrator and they thereby "act under" the direction of a federal officer, MD Helicopters likewise acts under the direction of that same federal officer.

Pursuant to federal law, the Federal Aviation Administrator appoints private individuals — including "designated engineering representatives" and "designated manufacturing inspection representatives" — to serve as "surrogates of the FAA in examining, inspecting, and testing aircraft for purposes of certification." United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 807 (1984). The federal government has delegated these tasks to private individuals since at least 1927 due to the Federal Aviation Agency's limited resources. Establishment of Organization Designation Authorization Program, 70 Fed. Reg. 59,932, 59,932 (Oct. 13, 2005).

Plaintiffs do not contest that some of MD Helicopters' employees also serve as FAA "designees" (hereinafter "employee-designees"). The lynchpin, however, of MD Helicopters' argument is not simply that some of its employees also carry out duties on behalf of the FAA. Rather, it is that when acting under the direction of the FAA, these employees are the same legal entity as MD Helicopters. Defendant points out that the district court in [Scott v. Lance Aviation, Inc., No. 8:09-cv-986-T-33TBM (M.D. Fla., Aug. 18, 2010)] granted removal based on similar facts pursuant to the Federal Officer Removal Statute. *** However, the Scott court did not consider what was noted by both MD Helicopters *** and the court in Swanstrom v. Teledyne Cont'l Motors, Inc., 531 F. Supp. 2d 1325, 1333 (S.D. Ala. 2008): "[w]hen performing a delegated function, [FAA] designees are legally distinct from and act independent of the organizations that employ them." Establishment of Organization Designation Authorization Program, 70 Fed. Reg. at 59,933. Thus, when employee-designees act in their capacity as designees, they are not the same legal entity as MD Helicopters. As such, the actions of FAA designees--in their role as representatives of the Federal Aviation Administrator--cannot be imputed onto MD Helicopters even though those designees also act in a separate capacity as employees of MD Helicopters. Accordingly, even 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. ***

It is arguable that MD Helicopters also appears to assert that its employee-designees are "federal officers" for the purposes of the Federal Officer Removal Statute and therefore MD Helicopters "acts under" their direction when it supplies replacement tail rotor parts that underwent designee approval. Yet such action does not involve assistance to the designee by MD Helicopters in any way, which is required to satisfy the "acting under" element of the removal statute. Isaacson v. Dow Chemical Co., 517 F.3d 129, 137 (2d Cir. 2008) (quoting Watson v. Philip Morris Companies, Inc., 551 U.S. 142, 152 (2007) (A company "act[s] under" a federal officer when it "assist[s], or ... help[s] carry out, the duties or tasks of the federal superior."). The Supreme Court unanimously held that even when a company's activities are regulated in "considerable detail," that is insufficient to bring the company within the Federal Officer Removal Statute. Watson, 551 U.S. at 145. Here, MD Helicopters does not assist FAA delegees in carrying out their duties. As the Supreme Court concluded in Watson, MD Helicopters' activities "sound[ to us like regulation, not delegation." Watson, 551 U.S. at 157. Moreover, because designees are often employees of aircraft manufacturers, see United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. at 807, concluding otherwise in this case would render meaningless the Federal Aviation Agency's bright line rule that FAA designees are legally distinct from their employers.

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New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

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