Summary
allowing removal for employees who allegedly performed negligent type, production, and airworthiness certifications under the general supervision of the FAA
Summary of this case from Vandeventer v. GuimondOpinion
Case No. CV 02-8703-GAF
January 27, 2003
ORDER RE: MOTION TO REMAND
I. INTRODUCTION
This case presents a dispute between numerous insurance companies and reinsurers, on the one hand, and an airplane manufacturer, McDonnell Douglas Company (MDC) and its alleged successor in interest, Boeing, on the other, for damages incurred when one of the manufacturer's airplanes crashed upon landing at Hong Kong International Airport. These insurers allege that they paid claims brought against China Airlines Limited, which operated the downed aircraft at the time of the accident. In this suit, which was originally filed in Los Angeles Superior Court, they seek reimbursement from the manufacturer on the theory that defects in the aircraft caused the accident.
Defendants have removed the case to federal court on three jurisdictional grounds: diversity jurisdiction; federal question jurisdiction; and federal officer jurisdiction. Asserting that the Court lacks subject matter jurisdiction over this case under any of these three bases, Plaintiffs now move to remand the case to the Superior Court. Because the Court finds that removal is proper on the basis of federal officer jurisdiction, the motion to remand is DENIED.
II. ANALYSIS
A. THE STANDARD FOR REMOVAL
Federal officer removal is governed by 28 U.S.C. § 1442(a)(1) which provides that "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" may remove a pending state action to a district court of the United States. A party seeking to invoke removal under this or any other statute bears the burden of supporting its jurisdictional allegations with competent proof. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (per curiam). District courts must construe the removal statutes strictly against removal and resolve any uncertainty as to removal in favor of remanding the case to state court. See id.; Acosta v. Direct Merch. Bank, 207 F. Supp.2d 1129, 1131 (S.D. Cal. 2002).
To prevail in a § 1442(a)(1) removal action under Ninth Circuit precedent, "[t]he defendant seeking federal officer removal must satisfy a two-part test. First, the defendant must raise a colorable federal defense to plaintiffs' claims. Second, the defendant must establish that it acted under the direction of a federal officer by demonstrating a causal nexus between plaintiffs claims and acts it performed under color of federal office." Arness v. Boeing N. Am., Inc., 997 F. Supp. 1268, 1271 (C.D. Cal. 1998) (citations and internal punctuation omitted). Overall, the "inquiry under the federal officer removal statute is the extent to which the Defendant acted under federal direction at the time it engaged in the acts underlying the Plaintiffs' lawsuit." Thompson v. Cmty. Ins. Co., No. C-3-98-323, 1999 U.S. Dist. LEXIS 21725, at *19 (S.D. Ohio Mar. 3, 1999). When a defendant satisfies the operative requirements, "[t]he special right of removal . . . has been held to be absolute, and may be exercised even though the action might not have been brought initially in a federal court." 140 Wright, Miller CooperFederal Practice and Procedure: Jur.3d § 3727 at p. 166. Also, § 1442(a)(1) "authorizes removal of the entire case, even though only one of its controversies might involve a federal officer or agency . . . ."Id. at 171.
Courts also typically question whether the defendant qualifies as a "person" for the purposes of 28 U.S.C. § 1441(a)(1). "Courts generally allow a corporation to be considered a `person' for Section 1442 purposes." 140 Wright, Miller Cooper, Federal Practice and Procedure: Jur.3d § 3727 at p. 149 (1998). See also Arness v. Boeing N. Am., Inc., 997 F. Supp. 1268, 1272 (C.D. Cal. 1998); Fung v. Abex Corp., 816 F. Supp. 569, 572 (N.D. Cal. 1992).
Defendants' removal of this case on the basis of federal officer jurisdiction focuses on the allegation that MDC and/or the Roe Defendants "[n]egligently failed to comply with the process for certifying the MD-11" aircraft. (Compl. ¶ 22( l) and that it proximately contributed to the destruction of the downed aircraft. Thus, MDC argues that it was acting under the color of office of a federal officer when it certified the MD-11, and that if it appropriately certified the aircraft, then the defendants have a colorable federal defense to the claim. (Opp. 17-18). Plaintiffs insist that Defendants fail to establish that MDC acted under sufficiently direct and detailed control to obtain removal. (Mot. 16-18). Plaintiffs also argue that Defendants have not established that this case involves any federal defense because they have not shown that the defense conflicts with California law. (Mot. 18).
Boeing joins the removal petition. However, the entire action could be removed to this Court on MDC's request on the basis of § 1442(a)(1), with or without Boeing's approval, desire or eligibility for removal. 14C Wright, Miller Cooper Federal Practice and Procedure: Jur.3d §§ 3727 at p. 166 (1998).
B. DEFENDANTS ACTED UNDER COLOR OF AUTHORITY OF A FEDERAL OFFICIAL 49 U.S.C. § 44702(d) expressly authorizes the Federal Aviation Administrator: to "delegate to a qualified private person, or to an employee under the supervision of that person, a matter related to — (A) the examination, testing, and inspection necessary to issue a certificate under this chapter; and (B) issuing the certificate." The Administrator has in fact designated such private individuals, including MDC employees, to serve as representatives of the FAA by certifying planes according to specifications. See 14 C.F.R. § 183.29, 183.31. Based on these regulations, MDCs notice of removal states that its employees performed the allegedly negligent "type certification, production certification, and airworthiness certification . . . 'under the general supervision of the FAA Administrator.'" (Notice of Removal at 9, quoting regulations).
At least one court faced with similar circumstances found that a private party acting under this statutory and regulatory delegation may remove to federal court under the federal officer removal statute. InMagnin v. Teledyne Cont'l Motors, 91 F.3d 1424 (11th Cir. 1996), the estate of a pilot killed in a crash brought a product-liability action against the engine's manufacturer and its employee, Smith, who had certified the engine according to federal regulations. Id. at 1426. As in this case, the Magnin plaintiff alleged that negligent inspection and wrongful certification caused the deadly disaster at issue. Id. at 1427. Using the test operative in the Ninth Circuit, the Magnin court found that while operating under the FAA delegation, the removing defendants were "sufficiently `controlled' by any government official to qualify as persons `acting under' a federal officer within the meaning of § 1442(a)(1)." Id. at 1429 fn.1 (citing 14 C.F.R. § 183.31).
Plaintiffs do not contend that Magnin was wrongly decided, but they attempt to distinguish it from the present case. They suggest that in this case, unlike in Magnin, the causal nexus between the plaintiffs' claims and the delegated act of certifying the aircraft was too attenuated to support removal. As an initial matter, the Court is hard-pressed to see a difference between the cases in this respect. In any event, the Plaintiffs' own complaint alleges a causal link between the negligent certification and the later disaster in detail. See Compl. ¶ 23 ("As a proximate result of one or more of the above-mentioned negligent acts or omissions [including the alleged negligent inspection and certification] of MDC and/or Roe Defendants, the MD-11 aircraft was destroyed . . . ."). Still, Plaintiffs urge that removal is valid only when a defendant's relationship to the plaintiff derives solely from his official duties.
This position is the product of a misreading of a Supreme Court case,Willingham v. Morgan, 395 U.S. 402 (1969). In Willingham, a federal prisoner alleged torture at the hands of the warden and the prison's chief medical officer. The defendants sought removal, "alleging that anything they may have done to respondent was done and made by them in the course of their duties as officers of the United States . . . ." Id. at 403 (internal punctuation omitted). The primary issue was whether, to obtain removal, it was necessary for the defendant federal officers to allege more specific acts undertaken under color of their offices, or whether their very generalized statement would suffice. The Court ruled: "we think it was sufficient for petitioners to have shown that their relationship to respondent derived solely from their official duties."Id. at 409 (emphasis added). Plaintiffs twist this conclusion to declare that Willingham "held that defendants [sic] relationship to the plaintiff must be `derived solely from [his] official duties'" in order to support removal. (Mot. at 20) (citing Willingham, 395 U.S. at 409). Not so. Plaintiffs fail to appreciate the logical distinction between a condition sufficient to support a conclusion and one necessary to reach the conclusion. While Willingham concluded that a case based on events that derive solely from a defendant's official duties would suffice to warrant federal officer removal, neither Willingham, nor any other case cited by either party, holds that such a relationship is a necessary pre-condition to such removal. Given the context of the case — a federal prisoner bringing suit against federal officials for alleged mistreatment in the federal prison — Willingham simply held that nothing more need be said to justify removal of that case to federal court. The case says little about removal in cases like this one where private actors have been delegated responsibility over matters within the scope of a federal officer's duties.
Plaintiffs also oppose removal by analogizing their case to Fung v. Abex Corp., 816 F. Supp. 569 (N.D. Cal. 1992), a second case that ultimately approved removal. Plaintiffs apparently rely on Abex because of its observation that a "majority of courts have held that the federal official must have `direct and detailed control' over the defendant" in order to justify removal. Id. at 572. However, simply citing this quotation (and ignoring the analysis and result) does not defeat removal in this case. For example, the Abex opinion also notes that the "control requirement can be satisfied by strong government intervention and the threat that a defendant will be sued in state court `based upon actions taken pursuant to federal direction.'" Id. If anything, Abex undermines Plaintiffs' arguments. It permitted removal where the government "monitored General Dynamics' performance at all times and required the defendant to construct and repair vessels in accordance with applicable and approved specifications." Id. at 572-73. If monitoring performance and dictating specifications is sufficient to permit removal, then a fortiori direct statutory and regulatory delegation of government authority to accomplish the same ends must suffice.
The final case Plaintiffs cite is Good v. Armstrong World Indus., Inc., 914 F. Supp. 1125 (E.D. Pa. 1996), in which the court found allegations that a manufacturer acted under the control of the Navy insufficient to justify removal. Plaintiffs' reliance on this case is misplaced. The Good court was concerned with the fact that § 1442(a)(1) allows removal for actions taken under authority of a single, specific officer, while the removal petition at issue in the case only loosely referred to oversight by some "conglomerate of people employed by the United States Navy." Id. at 1129. The court held that such generalized allegations did not support the specific assertion that one, specific officer of the United States — the Secretary of the Navy — provided direct control over manufacture of turbines. Id. In this case, by contrast, the removal notice alleges that MDC and its employees acted under the oversight of a specific officer, the FAA Administrator, pursuant to detailed regulations.
In sum, Plaintiffs' attempt to distinguish Magnin and their reliance onAbex and Good are unpersuasive. MDC, by and through its employees, was `acting under' a federal officer within the meaning of § 1442(a)(1) when the plane at issue was certified.
C. DEFENDANTS RAISE A COLORABLE FEDERAL DEFENSE
MDC asserts that it has a colorable federal defense in that the plane it delivered to CAA and China Air was certified as airworthy by the FAA and complied with all applicable codes, standards, and regulations. TheMagnin court found that such a defense — one requiring an interpretation of federal regulations and a determination whether certification afforded the defendants any protection — was a colorable federal defense that supported removal. Magnin, 91 F.3d at 1428.
Nonetheless, Plaintiffs argue that Defendants have not established a colorable federal defense because Defendants have not shown that California law conflicts with or prevents the presentation of any federal defense. There is simply no authority suggesting that this is at all pertinent. In fact, a colorable "federal" defense is simply one that requires interpretation of federal law. See, e.g., Conjugal Partnership Comprised by Joseph Jones and Verneta G. Jones v. Conjugal Partnership Comprised of Arthur Pineda and Toni Pineda, 22 F.3d 391, 395 (1st Cir. 1994) (noting that a case is "properly removed if defendant asserted a federal right or raised a question of federal law in his defense.") (citing Mesa v. California, 489 U.S. 121, 126-27 (1989)). As Defendants have a possible defense that raises uniquely federal issues, their removal is proper.
III. CONCLUSION
Defendants raise a colorable federal defense to Plaintiffs' claims and have established that the allegedly negligent acts for which they are being sued were carried out under delegation of authority of a federal officer. Defendants' request for removal is proper, and the Court need not address the parties' arguments regarding diversity and federal question jurisdiction. The Motion to Remand is DENIED.
IT IS SO ORDERED.