FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

M AR Y RI G G S , as Personal Representative of the E S TAT E O F J ON AT H A N N E I L U D ALL , for the benefit of the E S TAT E O F J ON AT H A N N E I L U D AL L , and P H I L I P A ND M AR L E NE U D AL Las Next of Kin and Natural Parents of J ON ATHA N N E I L U D AL L , deceased, Plaintiff-Appellee ,

v
. A I R B U S H EL I C O P T ER S , IN C .,

Defendant-Appellant ,

v
. M AT T HEW H E C K

E R ; D A NI E L F R I E D M A N ; B R E NDA H ALV O R S ON ; G E O F F R EY E D LU

ND ; E L L I

N G B. H ALV O R S ON ; J O H

N B E C K E R ; E L L I

N G KE N T H ALV O R S ON ; L O

N A

. H ALV O R S ON ; S C O T T B O O T H ; P AP I LL ON A I R

W A Y S , IN C

. , DBA Papillon Grand Canyon Helicopters; X E B E C L LC, Defendants-Appellees. No. 18-16396

D.C. No. 2:18-cv-00912- JCM-GWF

OPINIONRI G G S V

. A I R B U S H E L I C O P T ER S 2 Appeal from

the United States District Court for the District of Nevada Jam es C. Mahan, District Judge, Presiding Argued and Subm itted February 14, 2019 San Francisco, California

F iled September 20, 2019 Before: Mary M. Schroeder, Diarmuid F. O’Scannlain, and Johnnie B. Rawlinson, Circuit Judges. Opinion by Judge Rawlinson; Dissent by Judge O’Scannlain

SUMMARY *

Federal Officer Removal Statute
The panel affirm ed the d istrict court’s order granting
m otions to rem and to state court a case that had b e e n rem oved to federal court pursuant to 28 U.S.C. § 1442(a)(1). Following a fatal helicopter crash, plaintiffs filed s u i t in Nevada s tate court against the owners of the helicopter and the m anufacturer, Airbus Helico p t e r s, Inc. Airbus rem oved the action to federal court on the b asis of § 1442(a)(1), which perm its rem ov a l o f an action against “any officer (or any per son acting under that officer) of the United States or o f

* This summ ary constitutes no part of the opinion of the court. It h as been prepared by court staff for the convenience of the reader.RI G G S V

. A I R B U S H E L I C O P T ER S 3

any agency ther e o f, in an official or individual capacity, for or relating to any act under color of such office.”
Federal Aviation Adm inistration regulations set fo rth standards for certification of helicopters. P urs u ant to 49 U .S.C. § 44702(d)(1), the FAA delegated to Airbus th e authority to issue Supplem ental Certificates for design changes to type-certified aircraft.

A greeing g en erally w ith th e S ev enth C ircuit, an d a pplying Watson v. Philip Morris Cos. , 551 U.S. 142 (2007), the panel held that Airbus failed to m eet the “acting under” requirem ent of § 1442(a)(1) because, in issuing Supplem ental Certificates pursuant to its FAA delegation, Ai r b u s was m erely
com plying wi th regulatory standards. The panel concluded that an aircraft m anufactur e r does not act under a federal officer when i t e x ercises designated authority to certify
com pliance with governing federal regulations. Dissenting, Judge O’ Sc annlain wrote that Airbus acted under a federal agency because it undertook duties on the FAA’s behal f, and the m ajority’s contrary holding
m isunderstood the FAA’s regulatory regim e and m isapplied Watson

.

C OUNSEL

Carter G. Phillips (argued), Sidley Austin LLP, W ashington, D.C.; Yvette Os t olaza and Robert S. Velevis, Sidley Austin LLP, Dallas, T exas; David R. Carpenter, Sidley Austin LLP, Los Angeles, California; Jam es J. Pisanelli and Todd L. Bice, Pisanelli Bice PLLC, Las V egas, Ne v a d a ; f or DefendantAppellant.RI G G S V

. A I R B U S H E L I C O P T ER S 4 Gary C. Robb (argued) and Anita Porte Robb, Robb & Robb LLC, Kansas City, Misso ur i; Lawrence J. Sm ith, Bertoldo Baker Carter & Sm ith, Las Vegas, Neva d a ; for PlaintiffsAppellees.
Patrick J. Kearns (argued), W ilson Elser Mosk o witz Edelm an & Dicker LLP, San Di ego, C alifornia, for DefendantsAppellees.

Lauren L. Haert l ein, G eneral Aviation Manufacturers Association, W ashington, D.C. , for Am icus Curiae General Aviation Manufacturers Association.

OPINION

RAWLINSON, Circuit Judge: Appellant-Defendant Airbus Helicopters, Inc. (AHI) appeals the district court’s order granting m otions to rem and to state court. AHI contend e d th at it properly rem oved this
c a s e to federal district court pursuant to 2 8 U .S. C. § 1442(a ) ( 1 ) ( § 1442(a)(1)). According to A HI, the district court erroneously determ ined that AHI did n o t s atisfy the “acting under” requirem ent of § 1442(a)(1). Reviewing de
novo , we affirm

the judgm ent of the district court.

I. BACKGROUND

In F ebruary, 2018, John Udall, a resident o f th e United Kingdom , was killed in a h e l icopter crash while touring the Grand Canyon. The h elicopter (Crashed Helicopter) wasRI G G S V

. A I R B U S H E L I C O P T ER S 5
owned and operated by several of the Hecker Defendants 1 and
m anufactured by AHI. Plaintiff-Appellee Mary Riggs (Riggs) filed this action in Nevada state court against A HI and the Hecker De fe n dants, alleging that the C rashed H elicopter w as defectiv ely d esign ed because the fuel tank w as not cra sh

- resistant, and could not withstand an im

pact of a m inim al or m oderate nature without b ur s t i n g into flam es and engulfing the passenger com partm ent. 2

AHI r e m oved the case to federal district court, asserting § 1442(a)(1) as the basis for rem oval. T hat provision perm its
rem oval to federal court of an action against “any o fficer (or any person acting under that o f ficer) of th e Un i ted States o r of any agency thereof, in an official or individual capacity, for or r e lating to any act under color of such office.” 28 U.S.C. § 144 2 ( a ) (1 ). Riggs and the Hecker Defendants separately m oved to re man d the case to Nevada state court,
o n the basis that AHI did not m eet the requirem ents of § 1442(a)(1).

1 Th e nam ed Hecker Defendants are: Matthew Hecker, Danie l Friedm an, Brenda Halvorson, Geoffrey E dlund, Ellin g B. H alv o r so n , Jo hn Becker, Elling K ent Halvorson, L on A

. Halvorson, Scott Booth, and Papillon Airways, In c

. , D BA Papillon Grand Canyon Helicopters, and Xebec LLC.

2 In th i s appeal, the Hecker Defendants are Defendants-Appellees whose interests are aligned with the interests of Riggs.RI G G S V

. A I R B U S H E L I C O P T ER S 6

While the m otions to rem and were pen d ing before the district court, AHI m oved to dism iss the lawsuit p ursuant to Federal Rule of Civil Procedure 12(b)(2) and (b)(6). 3

The district court granted Hecker and Riggs’s m otions to
rem and. Noting that we have not directly addressed § 1442(a)(1) rem o v a l b ased on an FAA delegation, the district court relied prim arily on the S eventh C ircuit decision of Lu Junhong v. Boeing Co ., 7 92 F.3d 805 (7th Cir. 2 015) addressing an alm ost identical situation. After app l y ing the reasoning set forth in Lu Junhong , the district court ruled that AHI failed to m eet the “ a c t i n g under” requirem ent o f § 1442(a) ( 1 ) because AHI’s activities “pursuant to its [Federal Aviation Adm inistration] d elegation are rule
com pliance rather than rule m aking.”

II. STANDARD OF REVIEW

“W e review de novo a district court’s decision to rem and
a rem oved case

. . .” Corona-Contreras v. Gruel , 857 F.3d 1025, 1028 (9th Cir. 2017) (citation om itted).

III. DISCUSSION
Before turning to the issue before u s, we first review the statutory fram ework that sets the stage for our decision.

C o n g r e s s h a s c h ar g e d th e Fe d e r al A v i a t i o n Adm inistration (FAA) wi th regulating aviation safety in the United States pursuant to the Federal Aviation Act, 49 U.S.C. § 40101, et seq
. See Martin ex rel. Heckman v. Midwest Exp.

3 Because we affirm t

he district court’s order granting the m otions to
rem and, AHI’s m otion to dism iss is now m oot.RI G G S V

. A I R B U S H E L I C O P T ER S 7 Holdings, Inc

. , 555 F .3d 8 06, 808 (9th Cir. 2009). Pursuant to this authority, the FAA prom ulgated the Federal Aviation Regulations (FARs). See 14 C.F.R. § 1 .1 et. seq
. Standards for certification o f helicopters, such as the Cra s hed Helicopter, are set forth in 14 C.F.R. § 27.1.
After dem onstrating c ompliance with the F ARs, an aircraft owner m ay obtain a certificate from the F AA approving the aircraft’s design. See 49 U.S.C. § 44704(a)(1); 14 C.F.R. §§ 21.21, et. seq
. The FAA r equ ir es a supplem ental type certificate (Supplem ental Certifica t e ) for any design changes to a type-certifi c at ed aircraft. See 49 U.S.C. § 44704(b). Therefore, AHI could m ake no design change to the Crashed Helicopter absent the issuance of a Supplem ental Certificate.

To help am eli o rate the effect o f the FAA’s lim ited resources, 49 U.S.C. § 44702(d)(1) provides that the F AA “m ay d elegate to a qualified p rivate person

. . . a m atter related to–(A) the exam ination, testing, and inspection necessary to issue a certificate un d er this chapter; and (B) issuing the certificate.” The Eighth Circuit has described this d elegation approach as a m eans of “reducing governm ental costs [and] eas[ing] the burden of regulation on the aviation comm

unity by expediting the issuance of requested certification s

. ” Charlima, Inc. v. United States , 873 F.2d 1078, 1081 (8th Cir. 1989).

Pursuant to 49 U.S.C. § 44702(d)(1), the FAA instituted the Organization Designation Auth orization (Designation) program to delegate to organizations, such as AHI, the FAA’s authority to inspect aircraft designs and issue certifications. See 14 C.F.R. § 183

. 4 1

. An FAA Designation “allows an org an i zation to perform specified functions on behalf of theRI G G S V

. A I R B U S H E L I C O P T ER S 8
Adm inistrator related to engineering, m anu facturing, operations, airwo rthiness, or m aintenance.” 14 C.F.R. § 183.41(a). In 2009, AHI becam e an F AA-ce rt i fied Designation h older with authority to issue Supplem ental Certificates. 4

The ongoing dispute in this appeal is wh e ther AHI satisfies the “ a c ting under” prong of § 1442(a)(1). AHI contends that it was form ally delegated legal authority from th e FAA, and that this delegation establishes that it was acting under the f

ederal governm ent for purposes o f § 1442(a)(1). As an F AA delegee, AHI asserts that it does
m ore than m erely com

ply with federal law–it assists in carrying out the FAA’s duties

. Acknowledging that it does not m ake or prom

ulgate federal law, AHI arg u e s that the district court erroneously relied o n the holding from the Seventh C ircuit requiring entities to dem ons tra te a engagem ent in rule-m aking rather than rule com pliance to satisfy the “acting under” requirem ent of § 1442(a)(1).

As a private p arty, A HI m ust dem onstrate that it was “involved in an effort to assist, or to help carry out, the duties
or tasks of the federal superior” to satisfy the “acting under” requirem ent of § 1442(a)(1). Fidelitad, Inc v. Insitu, Inc ., 904 F.3d 1095, 1099 (9th Cir. 2018) (citation and internal quotation m arks om itted). The pivotal ques tion then is

4 The dissent references the recent crashes of the Boeing 737 Max to support t he argum ent t

hat Boeing is authorized to self-certify the safety o f its fleet. See Dissenting Opinion , p. 24 n.2. However, in the afterm ath o f the tragic crashes, it becam e clear that the FAA was calling the shots, not Bo eing. SeeLuz Lato, Michael Laris, Lori Aratani and Dam i an P aletta, Dem ocracy Dies in Darkness , W ashington Post (March 13, 2019) (re p o rt i ng that the FAA grounded the 737 Max planes after a “recom m endation” from

Boeing).RI G G S V

. A I R B U S H E L I C O P T ER S 9
whether AHI was assisting the F AA to carry out the FAA’s duties or whether AHI was “sim p ly com plying with the law,” wh i c h wo uld not bring it within the scope of § 1442(a)(1). Id . at 1100. 5

In Watson v. Philip Morris Cos., Inc

. , 551 U.S. 142, 145–4 7 ( 2 0 07), the United States Suprem e Court addressed § 1442(a)(1) in the context of a defendant tobacco com pany’s contentions that its close working relationship w ith a federal agency that d irected and m onitored its activities c onstituted conduct that satisfied the “acting under” requirem ent. Rejecting this argum ent, the Court held that Philip Morris did not satisfy the “acting under” requirem ent of § 1442(a)(1). Id

. at 157. In the Court ’ s v iew, Philip Morris’s m ere com pliance with federal regulations did not constitute “a statutory basis for rem oval

. ” Id

. at 153 (“A private firm ’s
com pliance (or noncom

pliance) with federal laws, rules, and regulations does not by itself fa ll within the scope of the statutory phrase ‘acting under’ a feder a l official.”). Acc o r ding to the Suprem e Court, the “acting under” requirem ent i s n ot satisfied b y m ere com pliance with a regulation “even if the regulation is h ighly detailed and even if the private firm ’s activities are highly supervised and
m onitored.” 6 Id

. The Court in Watson also noted that Philip

5 The dissent notes that the FAA auth o rizes certification of others. See Dissenting Opinion , p. 28. However, that circum stance has zero effect on the legal analysis dictated by Watson

.

6 The dissent m akes an effort to distinguish the controlling effe c t o f Watson by focusin g on t

he delegation by the FAA of authority to issue certificates. See Dissenting Opinion , p p. 29–30. However, as t he Seventh Circuit cogently o bserved, several other i ndustries, including the energy and health sectors, certify c o m p liance w ithout “acting under” the regulating agencies. Lu Junhong , 7 9 2 F. 3d at 809–10. As the SeventhRI G G S V

. A I R B U S H E L I C O P T ER S 10
Morris had never been delegated legal authority from a federal agency. See id . at 156.

Al though w e h ave not d irectly addressed rem oval un d e r § 1442(a)(1) based on an FAA designation, we have
a d dressed rem oval under § 1442(a) in other contexts. I n Goncalves By & Through Goncalves v. R a d y Children’s Hosp. San Diego , 865 F.3d 1237, 1 245–47 (9th Cir. 2017),
we consid e red whether the congressionally-authorized delegation of insur an c e claim s adm inistration by the United States Office of Personnel Managem e nt ( OPM) to private insurers conferred federal officer status up o n those private insure r s for p urposes of § 1442(a)(1). In Goncalves , the private insurer placed a subrogation lien on the proceeds o f a settlem ent reached on behalf of G oncalves wi th Rady Children’s Ho s p i tal. See id

. at 1243. Goncalves f iled a m otion in state court t o e xp un ge the lien, and the private insurer rem oved th e matter to federal court. See id

. In determ ining whether r emoval was proper, we addressed the “acting under” provision of § 1442(a)(1). W e explained that “[f]or a private entity to be ‘acting under’ a federal officer, the private entity m

ust be involved in an effort to assist , o r to help carry out , the duties o r tasks of the federal superior.” Id

. at 1245 ( c i t at i on om itted) (em phases in the original). W e

Circuit observed: “W e doubt that the Justices would see a dispositive d i f f eren ce b et w een certified com

pliance and ordinary com

pliance. Indeed , Wa t s o n rejected an argum ent

. . . that a federal agency hadn’t ‘j u s t ’ required com

p liance with regulations but also had ‘delegated authority’ to the m anufacturer to determ i ne com p l i an c e with those r egulations. The [Suprem e] Court thought that i n a d equate t o m ake t he m anufacturer a person ‘acting under’ the agency.” I d

. at 809 (quoting Watson , 551 U .S. at 154–57). W e agree with the Seventh Circuit that the Suprem e Court in Watson did not articulate a distinction between “certified” com p l i ance and
com p liance generally. Watson , 551 U. S. at 151–52.RI G G S V

. A I R B U S H E L I C O P T ER S 11
noted that the actions taken by the private entity “m ust go beyond sim

ple com plianc e wi th the law and help officers fu lfill other basic governm ental tasks.” Id

. (citation and alterations om itted).

W e u ltim ately concluded that the private insure r was “acting under” a federal officer. Not only did the OPM enter into a contra c t wi th the private insurer for a negotiated fee, the contract also authorized the insurer to pursue subrogation benefits that would otherwise b e pursued by OPM. See id

. at 1246–47. But for the actions of th e p r i v at e insurers, OPM would n ot be reim

bursed when an emp l oyee successfully pursued a third-party f

or paym ent o f h eal th c are expenses incurred by the em

ployee. Se e i d

. at 1247. OPM delegated to the private insurer the authority to pursue subrogation claim s on behalf of the governm ent. See id

. at 1247. Under these circum stances, we c o n cluded that the private insurer
was “acting under” a federal officer. Id

. We reasoned that the pursuit o f subr ogation claim s took the private insurer “well beyond sim

ple com pliance with the law and helpe d [federal] o fficers fulfill other basic g o v e rnm ental tasks. Id

. (quoting Watson , 551 U.S. at 153) (alteration and internal quotation m arks om itted).

W e recen tly grapp led w ith th e “acting under” requirem ent of § 1442(a)(1) in Fidelitad , 904 F.3d 1095, and w e included
a thoughtful discussion of Watson

. 7 In Fidelitad , a private
com pany (Fidelitad) that sold drones in Latin Am erica placed orders for the dro n e s f

rom a private drone m anufacturer ( I n s i tu). See id

. at 1097–98. The sales in Latin Am er i c a

7 O ur colleague i n di s s ent contends that the m ajority opinion
m isapplies Watson

. See Dissenting Opinion , p. 19. However, t hat contention com

pletely ignores our similar analysis of Watson in Fidelitad

.RI G G S V

. A I R B U S H E L I C O P T ER S 12 required “export licenses from the federal governm ent.” Id

. at 1098. The two com

panies subsequently had a fallin g o ut
over the provisions in the export l i censes. See id

. Consequently, Fidelitad filed an action again st Insitu asserting, am ong other claim s, that Insitu im properly delayed shipm ent of Fidelitad’s order. See id

. at 1097. Insitu m oved for rem oval under § 1 442(a)(1), argui n g that it was “acting under” the f

ederal governm ent because it delayed orders to F id elitad to ensure that Fidelitad com plied with fed eral exp o rt laws. See id . at 1098–100.

W e held that i n o r d er to invoke § 1442(a)(1) rem oval, a defendant “m

ust dem onstrate that (a) it is a person within the
m eaning o f the statute; (b) there is a causal nexus b etween its actions, taken pursuant to a federal o fficer’s directions, and plaintiff’s claim s; and (c) i t c an assert a colorable federal defense.” Id

. at 1099 (citations and internal q u otation m arks
om itted). W e identified the “ ce ntral issue” in the case as “whether Insitu was ac t i n g pursuant to a federal officer’s directions” when de nying shipm ent of the drones. Id

. (internal q

uotation m arks om itted). We described the “paradigm ” of a private entity “acting under a federal officer”
as an individual “acting under the d irection of a fe d e r a l law enforcem ent officer,” such as a pri vate citizen assisting in a law enforcem ent raid. Id

. (citat i o n s and internal quotation
m arks om itted).

W e focused on the fact that no f ederal officer directed Insitu to delay the o rders. See id

. at 1100. Neverth eless, Insitu m aintained that it was “acting under” a federal officer because the delay was for the p urpose of ensuring com pliance with the International Traffic in Arm s Regulation, 22 C.F.R. §§ 1 20

– 1 3 0, which g overns the sale of m ilitary goods to foreign governm ents. See id

. Citing Watson and LuRI G G S V

. A I R B U S H E L I C O P T ER S 13 Junhong , we reiterated that m ere com pliance with governing regulations “does not bring a private actor within the scope o f the federal officer rem oval statute.” Id

. W e explained that Watson i nvolved allegations that a cigarette com

pany sold cigarettes that delivered m ore tar and nicotine than advertised. See id

. The com pany rem oved the
case on the basis th at it was acting under the direction o f a federal o fficer by using a required tes t p r otocol that was “closely m onitored by the federal governm ent.” I d

. W e described the Suprem e Court a s unpersuaded by the
com pany’s position, noting its holding that rem oval w as not ap p ro p riate ev e n though “a federal agency directs, su p erv ises, and m onitor’s a com

pany’s activities in considerable detail.” Id

. (citation and internal q u otation m arks om itted). According to our reading of Watson in Fidelitad , extensive “federal regulation alone” did not suffice to m eet the “acting under” requirem ent of § 1 4 42(a)(1). Id

. W e also observed that the Suprem e Court’s rationale in W a t s on counseled rejection of Insitu’s argum ent regarding its stated attem pts to not only com

ply w ith federal regulations, but to “also attem p t[] to enforce specific provisions in Fidelitad’s export licenses.” Id

. W e recognized the Suprem e Court’s rejection in Watson of the n otion “th at a com pany subject to a r egulatory order (even a highly com p lex order) is acting under a fe d e ral officer.” Id

. (quoting Watson , 5 51 U.S. at 1 5 2–53) (parallel citation and internal quotation m arks
om itted). Finally, in Fidelitad w e acknowledged th at governm ent contractors m ay “act under federa l officers.” Id

. (citation
om itted). But, we clarified, the governm ent did not contract with Insitu and the regulation and export license s d i d n ot “establish the type of form al d elegation that m ight authorizeRI G G S V

. A I R B U S H E L I C O P T ER S 14
Insitu to rem ove the case.” Id

. at 110 1 ( quo ting Watson , 551 U.S. at 156) (alteration om itted).
The dissent seeks to m inim ize the persuasive powe r o f Fidelitad by comm enting that a different statut o ry r egim e was involved. See Dissenting O pinion , p. 30 n.3. However, the dissent’s summ ary comm ent elides the f act that we were confronted wi th the identical issue in Fidelitad that we resolve in this case, whether the “acting under” requirem ent of § 1442(a)(1) was satisfied. The dissent also fails to grapple with the reality that i n Fi d e litad, we cited with approval the Seventh Circuit’s Lu Junhong decisi o n

. Finally, d espite criticizing the precedent cited by the m ajority, the dissent did not, and cannot, cite one cas e fr o m this circuit that supports its analysis o f the “acting under” requirem ent. The best the dissent can m

uster is a case from the Eleventh Circui t , Magnin v. Tele d

y n e Cont’l Motors , 91 F.3d 1424 (11th Cir. 1996), decided eleven years prior to Watson and an argum ent from a S olicitor Ge n eral that was rejected by the Suprem e Court. See Dissenting Opinion , pp. 26–27.

Our analysis in Fidelitad is generally consistent with the approach taken by the Seventh Circuit in L u J u n hong , the
case relied on by the district court. L u J u n h o ng involved a dispute o v e r the design of a plane that broke apart during flight while landing in San Francisco. See 792 F .3d at 807. After being initially sued in state court, Boeing contended that it was entitled to rem oval under § 1442(a)(1) because it
was “acting under” the authority of the federal governm ent, having b een granted the authority by the FAA “to use F AAapproved procedures to conduct analysis and testing required for the issuance of type, production, and airworth i ness c e r t i f i c a t i o n s f

o r a i r c r a f

t u n d e r F e d e r a l A v i a t i o nRI G G S V

. A I R B U S H E L I C O P T ER S 15 Reg ulations.” Id. at 807–08. Boeing’s argum ent in Lu Junhong m irrors AHI’s posture in this appeal.
The Seventh Circuit rejected Boeing’s argum ent. See id

. at 810. The court reasoned that “we know from [ Watson ] that b eing regulated, even when a federal agency d ir e c t s , supervises, and m onitors a com p any’s activities in considerable detail, is not eno u g h t o m ake a private firm a person “acting under” a federal agency.” Id

. at 809 (citation and internal quotation m arks om itted).

In d i s cussing its rejection of Boeing’s argum ent that it, unlike Philip Morris in Watson , p o ssessed form al delegation from the FAA of the authority to certify com pliance, the Seventh Circuit explained: [T]his [authority] is still a power to ce rt i fy compliance , not a p o we r t o design the rules for airworthiness. The FAA perm its Boeing to
m ake changes to its gear after finding that the equipm ent a s m odified m eets the FAA’s standards; it does not perm it Boeing t o use gear that m eets B oeing’s self-adopted criteria.
Id . at 810 (em

phasis in the original).

Th e S eventh Circuit interpreted W atson as requiring th e delegati o n of “rule m aking” authority rather than “rule
com plian ce” certif

ication to m eet th e “acting under” standard. Id

. The Seventh Circuit sugges t e d th at, at a m inimum , Bo e i n g would have to be delegated “a power to issue conclusive certification of com pliance.” Id

. (em

phasis in the
o rig in al). B ecause Boeing’s self -certif ication w as n o t b in d in g on either the FAA or a reviewing court, the Seventh Ci rcuitRI G G S V

. A I R B U S H E L I C O P T ER S 16
det e rmi ned that Boeing did not com e within the “acting under” provision of § 1442(a)(1). See id

. The district court in this case adopted the Seventh Circu i t’s “ ru le m aki n g -co m p lian ce” di stin ctio n in f

inding that AHI was n ot “acting under” a FAA delegation. Although we cited Lu Junhong with approval in Fidelitad , 904 F. 3 d at 1100, we notably did n ot incorporate the Seventh Circuit’s rule-m aking-rule com

pli an c e dichotomy. Rather, we referenced L u Junhong for the p roposition that com pliance with the law “does not bring a private actor within the scope of the f ederal officer rem o val statut e” and neither does delegation o f authority “to self- certify com pliance with the relevant regulations.” I

d

. (quoting Lu Junhong , 729 F.3d at 808–10).

W e are p ersuaded by the consistent reasoning of Watson , Goncalves , and F

idelitad to conclude that th e d i strict court
comm itted no error in finding that AHI was not “acting
und er ” a federal officer by virtue of b ecom ing an F AAcertified Des ignation holder with authority to issue Supplem ental Certific ates. AHI concedes that, as a Designation h older, it “m ust perform all delegated functions i n accordance with a detailed, FAA-approved procedures
m anual specific to each [Designation] holder.” (em phasis added). Language such as “in accordance with” and “FAAapproved” suggest a relationship based on com pliance rather than assistance to federal officers. C f

. Go n c a lv es , 865 F.3d at 1245–46 (noting that a private insurer was “acting under”
a federal officer when it enter e d i nto a contract with a governm ent agency to pursue third-party reim bursem ents). Im portantly, one of the regulations circum sc r i b ing an F AA delegee’s auth o rity to certify provides that “each applicant must allow the FAA to m ake any inspection and any flightRI G G S V

. A I R B U S H E L I C O P T ER S 17
and ground test necessary to determine compliance with the applicable requirem ents of this subchapter.” 8 14 C. F .R. § 21.33 (em

p hasis added). T his language explicitly denotes
com pliance and, as discussed, m ere com pliance with federal directives d oes not satisfy the “acting under” requirem ent o f § 1442(a)(1), even if the actions are “high l y supervised and monitored.” Watson , 551 U .S. at 153; see also Gonc alv es , 865 F.3d at 1245; Fidelitad , 904 F.3d at 1100.

AHI concedes that it cannot m ake design changes without approval from the FAA. At oral ar g ument, A HI even acknowledged that the FAA has the authority to rescind any action taken b y AHI in connection with th e c ertification process. T hese facts dem onstrate that A HI was duty-bound to follow prescriptive rules set forth by the FAA, thus falling with in the “sim

p le com pliance with the law” circum stance that does not m eet the “acting under” standard. Goncalves , 865 F.3d at 1247; see also F id e l i ta d, 904 F .3d at 1 100. In
sum , AHI’s actions as an issuer of Supplem ental Certificates fit squarely within the precept of m er e com pliance with regulatory standards and o utside the “acting under” provision of 1442(a)(1). Watson , 551 U.S. at 153.

We foreshadowed the o utcom e of this case in Fidelitad , not i n g with approval the d eterm ination in Lu Junhong , 792 F.3d at 808–10, that an “airplane m anufacturer was not acting under a federal officer

. . . althou g h fe d e ral law gave the m anufacturer authority to self-certify com pliance with the relevant regulations.” 904 F.3d at 1100. In keeping w ith our analysis in F

idelitad , we hold that AHI was not acting under

8 The dissent com

plet e ly disregards this language requiring
com p liance with FAA regulations. See Dissenting O pinion , pp. 29–30 (denying Airbus’ com

pliance obligation).RI G G S V

. A I R B U S H E L I C O P T ER S 18

a federal offi c e r although federal regulations gave AHI authority to issue Supplem ental Certificates in accordance with FAA regulations. S

ee id

. Although we agree g enerally with the holding of Lu Junhong , as we d id in Fide l i tad, we decline to adopt the rulem aking-rule com pliance d i s t inction articulated by the Seventh Circuit and relied on by the district court. See L u Junhong , 792 F.3d at 8 1 0. We ar e content to
r ely on the m ore clearly articulated comm on analyses fr o m Watson , Goncalves , and F idelitad focusing on whether the p ri vate entity is engaged in m ere com pliance with federal regulations. See e.g ., Fidelitad , 904 F.3d at 1100. Finally, AHI relies heavily on th e district court decision of Estate of Hecker v. Robinson He licopter Co ., 2013 WL 5674982 (E.D. W ash. 2013). In Hecker , the plaintiff brought
an a ction in state court, asserting state law claim s for wrongful death, neglige n c e , and products liability arising from a helicopter crash. See id

. at *1. There, as here, th e helicopter m anufac turer rem o ved the case to federal court under § 1442(a)(1), an d the plaintiff m oved to rem and the
case for lack of jurisdiction. See id

. The district court held that the defendant’s status as a D esignation holder satisfied the “acting under” requirem ent. Id

. at *2. However, not only is Hecker non-binding, it was decided before our decisions in Goncalves and Fidelitad

. IV. CONCLUSION

AHI inspected and certifi ed its aircraft pursuant to F AA regulations and federal law and could not m ake any structural
or design changes w ithout the consent of the FAA. The Suprem e Court decision i n W a t son and our decisions in Goncalves and Fidelitad fully support the proposi t i on that AHI’s m ere com

p liance with federa l r e g ulations did notRI G G S V

. A I R B U S H E L I C O P T ER S 19 satisfy the “a c t i n g under” requirem ent of § 1442(a)(1). W e join the Seventh Circui t i n concluding that an aircraft
m anufacturer does not act under a f ederal o ffi c er when it exercises designated authority to certify comp l iance with governing federal regulations. 9

AFFIRMED.

O’SCANNLAIN, Circuit Judge, dissenting:
The federal officer rem oval statute authorizes a defendant in a state court civil action to rem ove the case to federal court if it is “acting under ” a federal agency. 28 U.S.C. § 1442(a) (1). In this case, the Federal Aviation Adm inistratio n (“F AA ”) “d eleg ate[ d ] ” to Airbus Helicopters, Inc. (“Airbus”) the authority to issue “certificates” o n the agency’s behalf—certificates that the FAA m ust otherwise issue on its own before an aircraft can be lawfu l l y flown. 49 U.S.C. §§ 44702(d)(1), 4 4704. Because Airbus undertakes these duties o n the FAA’s behalf, I conclude that Airbus “act[s] under” a federal agency within the m eaning of § 1 4 4 2 (a)(1). I believe that our court’s contrary holding
m isunderstands the FAA’s regulatory regim e and m isapplies the Suprem e Court’ s decision in Watson v. Philip Morris Cos. , 551 U.S. 142 (2007). I respectfully dissent.

9 Because we conclud e that AHI failed to m eet the “acting under” requirem ent of § 1442(a)(1), we need n ot and do not ad dre s s any other argum ents advanced by the parties on ap p e al. See Fidelitad, 904 F.3d at 1101 n.4.RI G G S V

. A I R B U S H E L I C O P T ER S 20

I
This case turns on the interaction b e twe en two statutes: the Federal Aviation Act, see 49 U.S.C. § 40103 et seq. , and the federal officer rem oval statute, see 28 U.S.C. § 1442.

A

1

In the Federal Aviation Act, Congress charged the F AA with the duty to establish “m inimum standards required in the interest of safety” for the “desi gn, m aterial, construction, quality of work, and perform ance of aircraft, aircraft engines, and p ropellers.” 49 U.S.C. § 44701(a)(1). The F AA pro mu l gated (and regularly revises) the F ederal Aviation Regulations, which deli n eate such standards. See 14 C.F.R. § 1.1 et seq. G iven th e technological com plexity of m odern aircraft, these safety standards dictate an aircraft’s design from its critical com

ponent s to its sm allest d etail. For instance, a helicopter—or, in the FAA’s p arlance, a “rotorcraft”—must satisfy regulations covering everything from its “landing gear” to the “num ber of self-contained,
rem ovable ashtrays.” Id. §§ 27.729, 27.853(c)(1).
Besides im

posing substantive s a fety standards, the A ct also creates a “m

ultistep certification process to m onitor the avi ation industry’s com pliance.” U

nited States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines) , 467 U.S. 797, 804 (1984). Before an aircraft can lawfully take flight, the F AA m

ust issue a series of “certification s ” o r “certificates”—term s that the Act uses interchangeably. The first of thes e i s c a lled a “type certificate,” which the F AA “shall issue” if it finds the aircraft “is properly designed andRI G G S V

. A I R B U S H E L I C O P T ER S 21 manufactured, perform s properly, and m eets the regulati o n s and m inimum standards prescribed [by the F AA].” 4 9 U.S.C. § 44704(a)(1). Then, b efore the manufacturer can m ass produce an approved design, it m ust obtain a “production certificate.” Id. § 44704(c). To do so, the m anufacturer m ust show that duplicates of the design will, amo n g other things, “conform to the [type] certific ate.” Id. Finally, the o wner o f each aircraft m

ust o btain an “a i rwo rthiness certificate” by showing that the aircraft “conform s to its type certificate and, after inspection, is in condition for s a fe operation.” Id. § 44704(d)(1). It is i l le ga l to operate an aircraft without an airworthiness certificate. See id. § 44711(a)(1). Together, these c ertification requirem ents prohibit a m anufacturer (or the aircraft’s eventual owner) from altering
an aircraft’s design without the FAA’s approval. Instead, if a m anufacturer w ishes to m ake changes, it m ust seek o ne o f two p ossible certificates. If a “proposed c h ange

. . . is so extensive that a subs t antially com plete investigation o f
com pliance

. . . is required,” then the m anufacturer m ust seek a new type certificate f

rom the FAA. 14 C.F.R. § 21.19. For less significant changes, the holder of a type certificate m ay seek a “ supplemental type certificate.” 49 U

. S. C. § 44704(b)(1) (em

phasis added); see a lso 14 C.F.R. § 21.113. Like an ordinary type c e rt ificate, a supplem ental certificate authorizes the holder then to seek production and airworthiness certificates for the mo dified design. See id. § 21.119.

2 Perhaps because of this elaborate certifica tion process, Congress offered the FAA an unusual tool to ease itsRI G G S V

. A I R B U S H E L I C O P T ER S 22 regulatory burd e n : the authority to d elegate its duties to the private sector. Specifically, the Act states: (d) D E LE G

AT I ON .—(1) Subject to regulations, supervision, and review the A dm inistrator
m ay p re scribe, the Adm inistrator m ay d elegate to a qualified private person

. . . a m atter related to (A) the exam ination, testing, and inspection necessary to issue a certificate under this chapter; and (B) issui n g the certificate.”

49 U.S.C. § 4 4702(d)(1) (em phasis added); see also Varig Airlines , 467 U.S. at 80 7 ( “[T]he FAA obviously cannot
c om plete this elaborate com pliance review process alo ne

. Accordingly, [the Act] authorizes the S ecr e t ary to delegate certain in sp ectio n an d certif ication resp o n sib ilities to p ro p erly qualified private persons.”).
Since 1927, the FAA an d i ts p redecessor agency have established program s delegating its certification authority to the p r ivate sector—either to individual engineers or to organizations. Establishm ent of Organization Designation Auth o rization Program , 70 Fed. Reg. 59,932, 5 9 , 9 3 2 (O ct. 1 3 , 2005) (codified at 14 C.F.R. p t s

. 2 1 , 121, 135, 145, 183) [hereinafter ODA Rule ]. In 20 0 5 , the FAA exercised its authority und e r § 4 4 702(d) to institute the Organization Designation Authorization (“ODA”) P rogram , which

“ c o n s o l i d a t [ e s ] a n d i m p r o v e [ s ] ” t h e “ p i e c e m e a l organizational delegations” p reviously d e v eloped. Id. at 59,933.
Under such program , th e F AA aut h o rizes “ODA Holders” to “perform specified f unctions on beha l f of theRI G G S V

. A I R B U S H E L I C O P T ER S 23
Admi n i strator.” 14 C.F.R. § 183.41. ODA Holders act as “rep resen tativ es o f th e A dm in istrator , ” an d wh en “p erf o rmin g a delegated function, [they] are legally distinct from and act independent of the organizations that em plo y th e m

. ” ODA Ru le , 7 0 Fed. Reg. at 59,933. Further, to becom e an ODA Holder , an organization m ust sign a m em orandum o f understanding prom ising to “com ply with th e sam e stan d ard s, procedures, and interpretations applicable to FAA em ployees
a c c o m p l i s h i n g s i m i l a r t a s k s

. ” F e d e r a l A v i a t i o n Adm inistration, Organ ization Designation Authorization Pro cedures , Order 8100.15, at A1-17 (2006) [hereinafter ODA Order]. 1

Si n c e 2009, Airbus has been a “Supplem ental Typ e Certification ODA.” Id. ¶ 2–6, at 5. In thi s capacity, Airbus has the auth o r i ty to “develop and issue supplem ental type
ce rt ificates

. . . and related airworthiness certificates.” Id

. Airbus m ay issue such certificates both f or its own aircraft o r for those of other applicants. See id. ¶ 11–7, at 88. Although the FAA m ay revoke Airbus’s ODA status or reconsider its issuance of a specific cert i ficate, see 49 U.S.C. § 44 7 0 2 (d )(2)–(3), a certificate issued by Airbus carries the
sam e legal consequence as o n e issued by the FAA: it gives the F AA’s form al approval to the aircraft’s design (in the case

1 Order 8100.15 “ est ab l i sh es t h e p r o ced ur es, gu i d a

n ce, and limitations of authority [the FAA] grant[s] t o an organiz a t i on ” under the ODA Program

. ODA O rder , at i. Since 2 006, the FAA has am ended Order 8100.15, see Federal Aviation Adm i nistration, Organization Designation Authorization Procedures , O rder 8100.15B (2018), but the 2006 version of the Order governed at t he tim e o f the subject helicopter’s m anufacture and sale.RI G G S V

. A I R B U S H E L I C O P T ER S 24
of a supplem ental type certificate) or the aircraft itself (in the case of an airworthiness certificate). 2

B
The federal officer rem oval statute perm its a defendant to
rem ove to federal court a state court action brought against “[t]he United States or any agency thereof or
any officer ( or any person acting under tha t officer) of the United States or of any agency thereof, in an official or individual capacity, for o r relating to any act under color of s u c h office . . . .”

2 8 U.S.C. § 1442(a)(1) (em phasis added). In Watson , th e Suprem e Court h e ld that a person “act[s] under” a federal officer or agency if his actions “involve an effort to assist , o r to h elp carry out , the duties or tasks of the federal superior.” 551 U.S. at 152. Althou g h a “private firm ’s compliance

. . . with federal laws, rules, and regulations” does not itself sat i s fy the statute’s “acting under” requirem ent, id. at 153 (em phasis a dd e d), a f

orm al “delegation of legal authority” goes beyond the “usual regulator/regulated relationship,” id.
at 1 56–57. Thus, Watson counsels that the “delegation o f legal authority

. . . [ to act] o n th e Governm ent agency’s

2 In the afterm ath of the r ecent crash of the Boein g 737 Max in Ethiopia, t

here see m s t o be som e appetite on Capitol Hill to r evisit the FAA’s private-public partnership. See Thom as Kaplan, After Boeing Crashes, Sharp Qu estions About Industry Regulating Itself , N.Y. Tim es (Mar. 26, 2019); David Koenig & Tom Krisher, The FAA’s Oversight of Boeing Will Be Examined in Senate Hearings , Tim e (Mar. 27, 2019). But until (and unless) such proposals becom e law, we m ust apply the statute as it presently exists.RI G G S V

. A I R B U S H E L I C O P T ER S 25
behalf” satisfies § 1442(a)(1)’s “ a cting under” requirem ent. Id. at 156.

II

Because the FAA delegates to ODA Holders its form al legal authority to issue certificates , I conclude, in respectful disagreem ent with the m ajority’s analysis, that Airbus “act[s] under” the FAA.

A

1 Beginning with the t ext, the Federal Aviation A ct
com pels the conclusion that the F AA d elegates form al legal authority to O DA Ho l d ers. By its own term s, 49 U.S.C. § 44702(d)(1) auth o rizes the FAA to “delegate” a “m atter
r e lated to” the “exam ination, testing, and inspection necessary to issue a certificate” and “issuing the certificate.” To “delegate” m eans to “give part of one’s power o r work to
some o n e in a lower p osition within one’s organization.” Delegate , Black’s Law D ictionary (9th ed. 2009); see also De legate , W ebster’s Third New International Dictionary (unabr. ed. 1986) ( “ [T]o entrust to another: transfer, assign,
comm it <power delegated by the p e op l e to the legislature> <one m ay [ delegate ] one’s authority to a com petent assistant>”). C ongress’s u se o f “delegate” thus suggests that the FAA m ay transfer its own form al legal powers to private persons, and the rest of the statute accords with such interpretation. In 49 U.S.C. § 44702(a), for i n s t ance, Congress established that the “Adm inistrator of the [FAA]
m ay issue” the long list of certi fi cates m andated by the Act. See also 49 U.S.C. § 44704 (sam e). Accordingly, theRI G G S V

. A I R B U S H E L I C O P T ER S 26 responsibility to issue certificates falls in the first instance to the FAA, and it is this authority that § 44702(d)(1) allows the agency to “delegate.”

C o n f irmi n g C o n gress’s m andate, the FAA itself describ e s the ODA Program as a delegation of legal authority. Under the program , O DA Hold e r s like Airbus f unction as “representatives of the Adm i nistrator” and “perform [] a delegated function.” ODA Rule , 70 Fed. Reg. at 5 9 ,933; see also 14 C.F.R. § 183.41 (sim ilar). The ODA O rder states that the program “delegate[s] certain types of authority to organi z ations,” and that such designees “act on the FAA’s behalf.” ODA Order , ¶ 1 –1, at 1. Further, th e se d elegees “assist” the agency and “help carry o ut” its m anifold “duties [and] task s, ” Watson , 5 51 U.S. at 152 (em phasis rem oved), because the “ [d ]e legation of tasks to these organizations [allows] the FAA t o focus [ its] lim ited resources on m ore critical areas,” ODA Rule , 70 Fed. Reg. at 59,933. Altogether, Congress and the FAA expressly said—tim e and again—that the age n c y i ndeed “delegate[s]” to private persons (l i k e Airbus) the authority to issue certificates, and Watson counsels that a “delegation of legal authority” satisfies § 1 442(a)(1)’s “acting under” requirem ent. 5 51 U.S. at 154–57. It follows that Airbus “act[s] under” the FAA.

2

I am not alone in this view. The Eleventh C ircuit cam e to the sam e conclusion in Magnin v

. Te le dyne Cont’l Motors , 91 F.3d 1424 (11th Cir. 1996), and the S olicitor General has endorsed that court’s holding. In its briefing for Watson , the Solicitor G eneral argued that the defendant could not seek
rem oval under the federal officer rem oval statut e (as theRI G G S V

. A I R B U S H E L I C O P T ER S 27 Suprem e Court later held), but it cited Magnin to support the argum ent that “a private citizen delegated authority to inspect aircraft by the [FAA] acts under a federal officer in conducting such an inspection and issuing a certificate o f airworthiness.” Brief for the U .S. as Am icus Curiae Supporting Petitioners at 26, Watson , 5 51 U.S. 142 (No. 05- 1284). “The critical point,” the Solicitor General continued, “is that the individual a cts on behalf of the F AA Adm inistrator in conducting the inspection.” Id.

B Despite the clear evidence of delegation, the m ajority concludes that Airbus’s actions as an O DA Holder constitute
m ere “com

pliance” with FAA regulation s

. See Maj. Op. at 16–18. W ith respect, I believe the m ajority is wrong.

1
The m ajority’s cri t ical error is that it conflates A irbus’s two distinct roles as a m anufacturer and as an FAA delegee. Specifically , an ODA Holder acts as either the regulated party
or the regulator—depending on the specific func t ion perform ed. It is true, of course, that all m anufactur e r s

— i n their capacity as m anufacturers—mu st com ply with the FAA’s num erous safety standards whenever they design o r build an aircraft. But as an O DA H older, the organization also acts as a “representative[] of the Adm inistrator.” ODA Rule , 70 Fed. R eg. at 59,933. In th i s capacity, the m anufacturer is “legally d istinct from ” the organization, and its “authority

. . . to act com es from an F AA delegation.” Id

. Put differently, the
m anufa c tur e r doffs its “aviation industry hat” and dons its “FAA h at,” and so clad, the ODA Holder exercises the agency’s statutory authority to issue certificates.RI G G S V

. A I R B U S H E L I C O P T ER S 28 Perhaps b ecause the issuance of certificates so obviously constitutes an exercise of the FAA’s governm ental power, the
m ajority seeks to recast the ODA Program as a “ self

certification” regim e. See Maj. Op. at 16–18 (em phasis added). The m ajority borrows such reas on i ng from Lu Junhong v. Boeing Co. , where the Seventh Circuit com pared
a m anufacturer’s authority to i s s ue c ertificates to “a person filing a tax return” com

pelled to certify that he reported his incom e “honestly.” 792 F.3d 805, 809 (7th Cir. 2015). Such

“ c e r t i f i e d c o mp l i a n c e , ” t h e c o u r t r e a s o n e d , w a s indistinguishable from other f orm s of “ordinary com

pliance” deem ed insufficient to satisfy § 1442(a)(1). Id. at 810.

Once again, the m ajority

— a s Lu Junhong before it—evinces its m isunderstanding of the regulatory regim e. Although an ODA Holder issuing a certificate m ust ensure that the aircraft com

plies with the FAA’s safety standards, the organization’s issuance o f the certificate does m ore; it stam ps the FAA’s im

prim atur on the aircraft. In so doing, the ODA Holder exercises a p ower derived from the a g e n c y and independent from its responsibili t i es as a m anufacturer. Indeed , the FAA authorizes O DA Holders like Airbus to issue certificates “to an applicant other than the ODA Holder”—thus confirm ing that such power cannot be reduced to self -certification. O

DA Ord er , ¶ 11–6, at 88 (em

phasis added). And because the nature of the certification authority should not fluctuate depending o n who is g ranted the certificate, the m ere fact that Airbus certifies its own aircraft has no bearing on whether it “act[s] under” the FAA.

In short, a true self-certification re g i me (as with the taxpayer attesting to his incom e) involves an affirm ation that the r e gulated party com

pleted his duty; an ODA Holder’sRI G G S V

. A I R B U S H E L I C O P T ER S 29
“certification” conveys the agency’s f orm al approval to the aircraft.

2
The m ajority’s flawed understanding of th e ODA Program blinds it to the differences betwee n th i s case and Watson

. There, the defendant—Philip Morris—argu e d that the FTC h ad “ d e l egated authority” to test cigarettes for tar and nicotine, and that it “‘act[ed] under’ officers of the FTC” when it conducted such testing. Watson , 551 U.S. at 154 (em phasis rem ove d ). But the Suprem e C ourt “found no evidence o f any delegation of legal authority from the FTC to the industry association”—the “fatal flaw” in Philip Morris’s argum ent. Id

. at 156 (em phasis added). Acco rdingly, the Co urt found n o reason to treat “the FTC/Philip Morris relationship as distinct from the us ua l regulator/regulated relationship.” Id. at 157. Eager to fit this case into Watson ’s mo ld, the m ajority casts Airbus as a regulated party com ply in g (o r self

-certifying
com pliance) with FAA rules and regulati o n s. S ee Maj. Op. at 16–18. But as shown, Congress and the FAA said that the FAA delegates “legal authority” to act “on the Governm ent agency’ s b e h alf.” Watson , 551 U .S. at 1 56. That delegation g o es w ell b ey o n d th e “u su al regu lato r/regu lated relationship, ” id. at 157, an d as a delegee Airbus “assist[s]” and “help[s]
carry o ut ” the duties and tasks of the FAA, id. at 152 (em phasis rem oved). Under the correct reading of Watson ,RI G G S V

. A I R B U S H E L I C O P T ER S 30
such a schem e satisfies § 1442(a)(1)’s “acting un d e r ” requirem ent. Id. 3

III

T h e f ed eral officer rem oval statute allows th o se wh o lab o r on the federal governm ent’s behalf, and are therefore sued in state court, to h ave such case tried in a federal forum

. In this case, the FAA authorized Airbus to issue certificates that the agency would otherwise issue on its own, and such delegation sat i s fi es § 1 442(a)(1)’s “acting under” requirem ent. Of course, it m ight seem strange that a m anufacturer’s participation in this private-public partnership would p erm it it to avoid state court; § 1 442’s core purpose, a ft e r a ll, is to give federal officials “a f e deral forum in which to assert federal imm

unity d e fenses.” Watson , 551 U.S. at 150 (em phasis added). B ut the statute’s t ex t i s b roader still, and
our court has discerned a “clear comm and fr o m b oth Congress and the Sup r eme Court that when federal officers and their agents are seeking a federal fo rum , we are to interpret section 1442 broadly in favor of rem oval.” Durham
v. Lockheed Martin C

orp. , 4 45 F.3d 1247, 1252 (9th Cir.

3 The Ninth C i rcuit cases that the m ajority cites do not support its conclusion. See Maj. Op. at 10–15 (citing Goncalves v. Rady Children’s Hosp. S an D iego , 8 65 F .3d 1237 (9th Cir. 2017), an d Fidelitad, Inc. v. In s i tu , Inc. , 904 F .3d 1095 (9th Cir. 2018)). Both cases apply Watson t o statutory regim es quite different from t he FAA’s, and each decision’s factintensive analysis defies extraction o f a sim ple rule that resolves this case. The m ajority’s broad assertion t hat the court i n Fidelitad was “confronted with the identical issue” that we confront here is sim ply wrong, Maj. Op. at 14; Fidelitad did not address a situation where an entity had f o rm ally and explicitly been d elegated authority to issue certificates on b ehalf of a federal agency, let alone the specific delegation that Airbus acts under here.RI G G S V

. A I R B U S H E L I C O P T ER S 31 2006) (em

phasis added). The clear co n sequence o f Congress’s han d i work is that FAA delegees perform the ag en c y’s tasks. Because Airbus is such a delegee, § 1442(a)(1) entitles it to a federal forum

. I respectfully dissent.