### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 15

‐ 1818

P ANTHER B RANDS

, LLC, et al

., Plaintiffs

‐ Appellants

,

v.

I NDY R ACING L EAGUE

, LLC, doing business as I NDY C AR

, et al

., Defendants

‐ Appellees

.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:14

‐ cv

‐ 00472

‐ TWP

‐ TAB

— Tanya Walton Pratt

, Judge

.

____________________

A RGUED N OVEMBER 3, 2015

— D ECIDED J UNE 27, 2016

____________________

Before W OOD

, Chief Judge

, E ASTERBROOK

, Circuit Judge

, and

B RUCE

, District Judge

. *

W OOD

, Chief Judge

. This case arises from the world of auto

racing and the sponsorships that go along with it, but it is in

the wrong court. Panther Brands is a marketing and brand

management company. In 2013, Panther signed a contract

* Of the Central District of Illinois, sitting by designation.2 No. 15

‐ 1818

with IndyCar, which authorizes the Indy Racing League car

series, to purchase various marketing benefits to provide to

its team sponsor. The benefits included access to coveted

space in the “Fan Village” at IndyCar racing events, an area

where sponsors set up displays to attract fans. The Army Na

‐

tional Guard (“the Guard”) had been Panther’s team sponsor

from 2008 to 2013. After it signed the 2013 contract, Panther

learned that another team, Rahal Letterman Lanigan Racing

(“RLL Racing”), intended to provide the Guard with Fan Vil

‐ lage space as a sponsorship benefit.

Believing that RLL Racing had conspired with IndyCar

and a bid management agency called Docupak to persuade

the Guard to sponsor RLL Racing instead of Panther, Panther

brought suit in state court against RLL Racing, Docupak,

IndyCar, and active

‐ duty Guard member John Metzler, who

acted as the liaison between the Guard and Panther. The de

‐

fendants removed the case to federal court, where the United

States was substituted as a party for Metzler, see 28 U.S.C.

§ 2679(d); Panther then filed an amended complaint that did

not name either Metzler or the United States. The district

court dismissed the complaint against RLL Racing, IndyCar,

and Docupak pursuant to Federal Rule of Civil Procedure

12(b)(6), and found the United States’s motion to dismiss for

lack of jurisdiction moot. Because the basis for federal juris

‐

diction disappeared when Panther amended its complaint,

we vacate the district court’s decision and remand for dismis

‐

sal for lack of jurisdiction.

I

The Appellees offer several bases for federal subject

‐ mat

‐

ter jurisdiction over this dispute: removal based on the exist

‐

ence of federal

‐ question jurisdiction, 28 U.S.C. §§ 1331, 1441;No. 15

‐ 1818 3

federal officer removal, id. § 1442; and the Westfall Act, id.

§ 2679. None succeeds.

A

A defendant may remove a lawsuit to federal court under

28 U.S.C. § 1441 when there is a claim that “arises under the

Constitution, laws, or treaties of the United States.” Id.

§ 1441(c)(1)(A). The federal question must appear in the well

‐ pleaded complaint; a federal defense will not do. See id. (re

‐ ferring to 28 U.S.C. § 1331); Rivet v. Regions Bank of Louisiana

,

522 U.S. 470, 475 (1998). Panther’s amended complaint asserts

that RLL Racing and Metzler formed an agreement that vio

‐

lated “multiple federal statutes and regulations.” IndyCar re

‐ gards this as an adequate jurisdictional allegation, but it is

not. The fact that federal regulations (such as those affecting

the Guard’s contracts) may have some bearing on the case tells

us nothing about jurisdiction; the question remains whether

the claim is based on state or federal law. See Nuclear Eng ʹ g

Co. v. Scott

, 660 F.2d 241, 249 (7th Cir. 1981) (finding no federal

jurisdiction over claims “predicated upon state law that at

most incorporates federal law in certain tangential respects”).

Panther’s complaint alleges breach of contract, interference

with contract, unjust enrichment and conversion, and unfair

competition and bid rigging. These are all state

‐ law theories,

and none is “essentially federal in character.” Id

. Jurisdiction

under sections 1331 and 1441 is therefore lacking.

B

The Appellees also invoke 28 U.S.C. § 1442, the federal of

‐

ficer statute, as a basis for subject

‐ matter jurisdiction. Section

1442 permits removal to federal court of an action against

“[t]he United States or any agency thereof or any officer (or4 No. 15

‐ 1818

any person acting under that officer) of the United States or

of any agency thereof, in an official or individual capacity, for

or relating to any act under color of such office[.]” 28 U.S.C.

§ 1442(a)(1). Federal

‐ officer removal is possible when (1) the

defendant is a “person” within the meaning of the statute, (2)

the defendant is “act[ing] under” some entity of the United

States, (3) the defendant is acting under color of federal au

‐ thority, and (4) the defendant has a colorable federal defense.

Ruppel v. CBS Corp.

, 701 F.3d 1176, 1180–81 (7th Cir. 2012).

IndyCar and the other appellees contend that Docupak

acted as a federal officer and thus that this was a valid basis

for their removal. We accept that Docupak is a “person”

within the meaning of section 1442, according to the law of

this Circuit. Id. at 1181; contra Roche v. Am. Red Cross

, 680 F.

Supp. 449, 455 (D. Mass. 1988) (concluding that “the text of

section 1442 suggests that only natural persons are covered”).

But we run into trouble when we consider whether Docupak

was acting for a governmental entity and under color of fed

‐

eral authority.

Docupak says that it “acted under” the Guard by collect

‐ ing and summarizing bids for the Guard’s sponsorship. There

are indeed cases supporting this form of removal “where the

federal government uses a private corporation to achieve an

end it would have otherwise used its own agents to com

‐ plete.” Id

. The Supreme Court applied this doctrine in deci

‐

sions finding persons to be acting under federal entities when

assisting in distillery raids during Prohibition. Maryland v.

Soper

, 270 U.S. 9, 30 (1926); Davis v. State of S. Carolina

, 107 U.S.

597, 600 (1883); Tennessee v. Davis

, 100 U.S. 257, 261 (1879).

Other courts have held that private entities were acting underNo. 15

‐ 1818 5

the federal government or its agencies for federal

‐ officer re

‐

moval purposes when providing benefits to federal employ

‐

ees under the direction of the Office of Personnel Manage

‐

ment, Jacks v. Meridian Res. Co., LLC

, 701 F.3d 1224, 1234 (8th

Cir. 2012); when manufacturing Agent Orange for the United

States, Winters v. Diamond Shamrock Chem. Co.

, 149 F.3d 387,

399–400 (5th Cir. 1998); and when operating environmental

preserves pursuant to National Oceanic and Atmospheric Ad

‐

ministration grants, Town of Davis v. W. Virginia Power & Trans

‐

mission Co.

, 647 F. Supp. 2d 622, 630 (N.D. W. Va. 2007).

We grant that private contractors performing tasks for the

government are sometimes covered under section 1442, but

Appellees take this idea too far. We held in Lu Junhong v. Boe

‐ ing Co.

, 792 F.3d 805, 810 (7th Cir. 2015), that merely being sub

‐ ject to federal regulations or performing some functions that

the government agency controls is not enough to transform a

private entity into a federal officer. Indeed, in Watson v. Philip

Morris Cos., Inc.

, 551 U.S. 142 (2007), the Supreme Court held

that “the fact that a federal regulatory agency directs, super

‐

vises, and monitors a company’s activities in considerable de

‐

tail” does not suffice to make that company a “person acting

under” a federal officer. Id. at 145. Docupak’s activities on be

‐

half of the Guard fell far short of the closely monitored and

highly regulated relationships involved in the distillery, fed

‐

eral benefits, Agent Orange, or oceanic preserves cases on

which it relies. Neither did the Guard delegate any rulemak

‐ ing authority to Docupak, which we have suggested might

make a difference. See Lu Junhong

, 792 F.3d at 810. Jurisdiction

under the federal

‐ officer removal statute was thus also una

‐

vailable.6 No. 15

‐ 1818

C

Finally, IndyCar argues that the Westfall Act, 28 U.S.C.

§ 2679, furnishes jurisdiction for its case. That statute immun

‐

izes federal employees acting within the scope of their em

‐ ployment from an action for damages through the device of

substituting the United States as the party defendant, so long

as the suit is not for a constitutional violation or otherwise

statutorily authorized against a government employee. 28

U.S.C. § 2679(b)(2), (d). Once the Attorney General certifies

that the named employee was acting within the scope of his

office or employment, federal jurisdiction becomes exclusive.

See Osborn v. Haley

, 549 U.S. 225, 242, 243 (2007) (“For pur

‐

poses of establishing a forum to adjudicate the case, however,

§ 2679(d)(2) renders the Attorney General’s certification dis

‐ positive

... Congress has barred a district court from passing

the case back to the state court where it originated based on

the court ʹ s disagreement with the Attorney General ʹ s scope

‐

of

‐ employment determination.”). If after full consideration,

the district court determines that a Westfall defendant com

‐

mitted tortious conduct outside the scope of his federal em

‐ ployment, the court may retain jurisdiction, because a signif

‐

icant federal question—whether the employee had Westfall

Act immunity—would have been present in the case from the

outset. Id

. at 244–45.

The case before us does not fit that pattern. After the

United States (standing in for Metzler) was eliminated as a

party as a result of Panther’s amendment of the complaint, the

basis for federal jurisdiction disappeared. This is so even ac

‐ cepting that Westfall Act removal was appropriate initially.No. 15

‐ 1818 7

II

Because we find the district court had no jurisdiction over

this dispute, we VACATE the district court’s judgment and

REMAND for dismissal on that basis.