Previously published in Skywritings, The Newsletter of the Aerospace Law Committee
Aviation products manufacturers often prefer to defend their products in federal court rather than state court. Lawyers representing plaintiffs in these lawsuits have become particularly adept at drafting their complaints to avoid removal to federal court. This article addresses the use of Organizational Designated Airworthiness Representative ("ODAR"), Designated Engineering Representative ("DERs"), and Designated Manufacturing Inspection Representative ("DMIRs") status to support removal under 29 U.S.C. § 1442(a)(1), the federal officer removal statute.
Federal Officer Removal Statute
The federal officer removal statute provides in relevant part that:
[a] civil action ... commenced in a State court against any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:
The 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 or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of revenue.
28 U.S.C. § 1442(a)(1).
In practice, a defendant seeking removal under this statute must demonstrate that it is a "person" within the meaning of the statute, that there is a "causal nexus" between its actions taken pursuant to a federal officer's direction and the plaintiff's claims and, finally, that it can assert a colorable federal defense. McMahon v. Presidential Airways, Inc., 410 F. Supp. 2d 1189, 1196 (M.D. Fla. 2006).
It is well-established for purposes of 28 U.S.C. § 1442(a) that a corporate defendant is considered a "person." See, e.g., Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 298 (5th Cir. 1998). Therefore, successful removal of an action will depend on the "causal nexus" between the manufacturer's actions in the aircraft certification process and the plaintiff's claims, and the ability to raise a colorable federal defense.
The Federal Aviation Administration's Delegation of Certain Aspects of the Aircraft Certification Process to Manufacturers and Their Employees
In defining the powers of the Federal Aviation Administrator, Congress authorized the Administrator to delegate certain of his duties to private individuals. 49 U.S.C. § 44702(d). Specifically, the Federal Aviation Administrator may "delegate to any properly qualified private person ... any work, business, or function respecting (1) the examination, inspection and testing necessary to the issuance of certificates ..., and (2) the issuance of such certificates in accordance with standards established by [the Administrator]." Id. As a result, many aviation manufacturers employ engineers and other personnel who, with FAA approval and under FAA supervision, serve as Designated Engineering Representatives (DERs) and Designated Manufacturing Inspection Representatives (DMIRs).
A DER is an engineer who acts "under the general supervision of the [FAA] Administrator" and certifies than an aircraft's (or component's) design meets FAA requirements. 14 C.F.R. § 183.29. A DMIR likewise acts "under the general supervision of the [FAA] Administrator" and is authorized to certify aircraft and components that meet airworthiness requirements. 14 C.F.R. § 183.31.
Finally, ODARs are organizations (rather than individuals) that are appointed by the FAA in accordance with 14 C.F.R. § 183.233 and that possess aeronautical knowledge and experience and meet the qualifications of FAA Order 8100 (this Order is revised and supplemented by the FAA from time to time). ODARs act "under the general supervision of the [FAA] Administrator" and perform examination, inspection and testing services related to the issuance of certificates. 14 C.F.R. § 183.33.
The DER, DMIR and ODAR process is closely overseen by a supervising FAA office, which approves the training programs, procedures, and the individuals themselves who are granted the delegated authority to perform FAA functions.
Obstacles to Federal Officer Removal
Defendants seeking to remove lawsuits to federal court based on allegations implicating the conduct of DERs and DMIRS in the aircraft certification process have encountered considerable difficulty. Much of this difficulty can be traced to reasoning in the Eleventh Circuit's decision in Magnin v. Teledyne Continental Motors, 91 F.3d 1424 (11th Cir. 1996). Although the Eleventh Circuit found in Magnin that removal pursuant to the federal officer removal statute was proper, it introduced a significant obstacle to future attempts by manufacturers to remove actions under the federal officer removal statute—specifically, the requirement that the DMIR (or DER) be named as an individual defendant. This requirement has allowed plaintiffs to defeat removal by not naming the DMIR or DER as a defendant in their complaints.
Magnin was a wrongful death action brought against an engine manufacturer and its employee, a DMIR. Id. at 1426. The complaint alleged that an airplane crash was proximately caused by defendants' negligent inspection and wrongful certification of the aircraft's engine as airworthy. Id. Notably, the complaint expressly described the defendant-employee as a DMIR. Id.
For the Eleventh Circuit, the naming of the DMIR as a defendant was critical to its decision. Because the complaint alleged that the DMIR proximately caused the crash by signing an export certificate, and because the certificate was signed only in the DMIR's capacity as an agent of the FAA, there was the requisite "causal nexus." Moreover, the defendant-DMIR could raise a colorable federal defense that he acted in compliance with and within the scope of his federal duties. Id. at 1428.
Plaintiffs' counsel and federal courts alike seized on the Eleventh Circuit's emphasis on the fact that the DMIR was named a defendant in the action to support removal under 28 U.S.C. § 1442(a). The result was a flurry of decisions remanding lawsuits to state court because the DER or DMIR was not named in the plaintiffs' complaint.
By way of example, in Swanstrom v. Teledyne Continental Motors, the plaintiffs alleged that the defendant-manufacturer was negligent in its failure to properly inspect the aircraft in a manner to ensure its airworthiness. 531 F. Supp. 2d 1325, 1328 (S.D. Ala. 2008). The defendant-manufacturer removed under the federal officer removal statute because its employees had been designated to act on behalf of the Administrator in examining, inspecting, testing, and certifying aircraft for airworthiness. As for its colorable federal defense, the defendant-manufacturer asserted that the aircraft was designed in full compliance with applicable federal safety regulations and standards. Id. at 1328-29.
Relying on Magnin, the court in Swanstrom noted that no DER or DMIR specifically was named in the complaint. In remanding the case to state court, the court held that the defendant-manufacturer had not established or even alleged that it had a contract or any relationship with the FAA such that substantial control was exercised over it. Id. at 1332. Further, the court held that "[i]t is not sufficient for the [] defendants to assert that their acts fall under the general auspices of a federal officer or fall within the purview of participation in a regulated industry." Id.
An identical result—remand to state court—was reached in Britton v. Rolls-Royce Engine Servs., a personal injury action arising out of a helicopter crash. No. 05-01057, 2005 WL 1562855, *1 (N.D. Cal. June 30, 2005). In Britton, the defendant-repair center argued that removal was proper because the FAA had designated private individuals, including its own employees, to serve as FAA representatives by certifying that the aircraft and engine maintenance was performed according to FAA specifications. Id. at *4. Like the court in Swanstrom, the Britton court remanded the case because the complaint did not name any individual defendants and did not expressly allege that defendant's issuance of an airworthiness certificate was a proximate cause of the accident. Id. at *4.
The holdings in Magnin, Swanstrom, and Britton (among other cases) present substantial obstacles to successful federal officer removal, absent the DER or DMIR being named as a defendant. Fortunately, not every court presented with this situation has followed Magnin.
Successful Federal Officer Removal Based on Actions of a DER or DMIR
Despite the holdings in Magnin, Swanstrom, and Britton, at least one court has found removal pursuant to the federal officer removal statute proper without the DER or DMIR being named as a defendant. In Scott v. Lance Aviation, LLC, No. 8:09-cv-00986 (M.D. Fla. March 10, 2010), a case involving the crash of a military surplus 1968 Hughes OH-6A U.S. Army helicopter, remand after a federal officer removal was denied. Plaintiffs in Scott alleged that the defendant-manufacturer (the defendant was the successor to the manufacturer): (i) violated federal law by failing to "support" the helicopter through applicable maintenance and service information and other instructions for "continued airworthiness;" (ii) failed to comply with unspecified Federal Aviation Regulations; and (iii) delivered "unairworthy" component parts. Removal was premised on the defendant-manufacturer acting under the direction of a federal officer and under color of such office. Id. at 2.
The court in Scott relied on Magnin to determine whether the general standards of federal officer removal were met. Id. at 3. The court first noted that the plaintiff's allegations regarding "unairworthy" component parts were analogous to the allegations in Magnin. Further, and again as in Magnin, the allegation regarding improper certification necessarily implicates the manufacturer's employees acting under the general supervision of the FAA Administrator as DERs or DMIRs. Id. at 3-4.
The court also found that the plaintiff's allegations encompassed parts that would have been supplied to the U.S. Army and, at any rate, any part not sold to the Army necessarily would have been certified as airworthy by the manufacturer's employees acting as DERs and DMIRs under FAA supervision. Id. at 4. Because the defendant-manufacturer could assert a colorable federal defense (that it acted within the scope of its federally imposed duties), the court concluded that "[u]nder these circumstances, ... the required causal connection exists between federal direction or supervision and [defendant's] alleged conduct."
Therefore, although still using the analytical framework from Magnin, the court in Scott nonetheless found removal proper despite the DER or DMIR not being named a defendant.
Successful Removal Based on the Actions of an ODAR
In Scrogin v. Rolls-Royce Corp., the defendant-manufacturer successfully opposed remand based on the manufacturer's status as a federally-appointed Organizational Designated Airworthiness Representative ("ODAR"). No. 3:10-cv-442, 2010 WL 3547706 (D. Conn. Aug. 16, 2010). Scrogin involved the crash of a U.S. Army-owned Bell Kiowa Warrior helicopter in an active military zone in Iraq. Id. at *1. In support of removal, the defendant-manufacturer asserted that, as a federally-appointed ODAR, it has the delegated authority to perform various functions in connection with the issuances of FAA certificates. Id. at *4. Defendant explained that an FAA employee closely supervises an ODAR to ensure that it is performing its delegated functions in accordance with the FAA Administrator's regulations, policies, and procedures. Id.
The complaint in Scrogin contained allegations specifically implicating the manufacturer's actions as an ODAR. Specifically, the complaint alleged that the manufacturer failed to comply with its federally imposed obligations pertaining to airworthiness and continuing airworthiness and, contrary to unspecified FARs, improperly certified to the FAA and/or military that the allegedly defective component was "airworthy."
In denying the plaintiffs' motion to remand in Scrogin, the court found that defendant's "conduct constituted more than compliance with the federal regulations. Defendant assisted the government by manufacturing the engine according to the general federal regulations and the military requirements, and it was subject to monitoring and/or supervision by the federal authorities." Id. at *5. The court also found that the necessary "causal nexus" was present because plaintiffs asserted that the defendant failed "to certify properly the accident engine and its component parts. Thus, the allegations arise out of defendant['s] conduct in carrying out its government-delegated duties that were under the supervision of the FAA." Id.
Because the defendant-manufacturer could assert a colorable federal defense (that it complied with federally imposed standards and regulations of the certification process), remand was denied. The allegations in Scrogin mirrored those found in Scott, where the court also found that removal was proper. The practical lesson from both Scrogin and Scott is that the language of the complaint will, in many instances, determine whether federal officer removal is proper. The removing defendant in Scrogin educated the court on the aircraft (or component) certification process through a detailed affidavit submitted by one of its DER employees. In addition to explaining the aircraft certification, the DER's affidavit walked the court through the processes of becoming a DER, DMIR, or ODAR.
Conclusion
Removing a lawsuit based on the defendant-manufacturer's status as an ODAR, rather than its employees' status as DERs and DMIRs, allows the removing defendant to avoid the Magnin requirement that the specific individual be named as a defendant. As evidenced above, plaintiffs have seized on this requirement and rarely (if ever) name the DER or DMIR and, as a result, typically deny defendants this basis for federal officer removal. A plaintiff, obviously, cannot neglect to name the manufacturer as a defendant to avoid removal and, therefore, the defendant's status as an ODAR will be directly implicated by any allegations concerning the examination, inspection, and testing performed in connection with the issuance of certificates.
As a practical matter, a defendant seeking removal must educate the court on the FAA's multi-tiered certification system to ensure that aircraft and their components comply with its federal airworthiness and certification standards. It also is critical that the court understand that the DER, DMIR, and ODAR process is closely overseen by a supervising FAA office, which approves the training programs, procedures, and the individuals themselves who are granted the delegated authority to perform FAA functions. This can be accomplished through reliance on the applicable FARs, in addition to affidavits or declarations from the DER and DMIR. It is the DER or DMIR that is most knowledgeable about the certification process and can walk the court through the certification process as well as the process to become a DER or DMIR. It is essential that the court understand both the aircraft certification process and the process to become a DER, DMIR or ODAR. As evidenced by the opinion in Swanstrom, assertions that a manufacturer's conduct fell under the general auspices of a federal officer generally will not suffice.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
