Lu Junhong v. Boeing Co.

• Decision Date: 08 July 2015
• Docket Number: Nos. 14–1825 et al.,s. 14–1825 et al.
• Citation: 792 F.3d 805
• Parties: LU JUNHONG, et al., Plaintiffs–Appellees, v. The BOEING COMPANY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

792 F.3d 805

LU JUNHONG, et al., Plaintiffs–Appellees

v.The BOEING COMPANY, Defendant–Appellant.

Nos. 14–1825 et al.

United States Court of Appeals, Seventh Circuit.

Argued June 26, 2014.

Decided July 8, 2015.

Rehearing and Rehearing En Banc^* Denied Aug. 10, 2015.

Colin H. Dunn, Attorney, Clifford Law Offices, P.C., Todd Smith, Attorney, Power, Rogers & Smith, Chicago, IL, Arthur R. Miller, Attorney, Harvard Law School, Cambridge, MA, for Plaintiffs–Appellees.

Bates McIntyre Larson, Attorney, Perkins Coie LLP, Chicago, IL, Eric D. Miller, Attorney, Eric B. Wolff, Attorney, Perkins Coie LLP, Seattle, WA, for Defendant–Appellant.

Before WOOD, Chief Judge, and CUDAHY and EASTERBROOK, Circuit Judges.

Opinion

EASTERBROOK, Circuit Judge.

On July 6, 2013, a Boeing 777 hit the seawall that separates the ocean from the end of a runway at San Francisco International Airport. The plane's tail broke off, 49 persons sustained serious injuries, and three of the passengers died, though the other 255 passengers and crew aboard suffered only minor or no injuries. The flight, operated by Asiana Airlines, had crossed the Pacific Ocean from Seoul, Korea. The National Transportation Safety Board concluded that the principal cause of the accident was pilot error: the pilots approached too low and too slow, and by the time they attempted to add power and execute a missed approach, it was too late. Only three seconds remained until the impact, the plane was about 90 feet above the ground, and the “airplane did not have the performance capability to accomplish a go-around.” Aircraft Accident Report: Descent Below Visual Glidepath and Impact with Seawall, Asiana Airlines Flight 214 (NTSB June 24, 2014) at 126. The Board believed that the pilots would have had to act eight or nine seconds earlier (a total of 11 or 12 seconds before reaching the seawall) to avoid hitting it. Id. at 84–85.

Suits brought in federal courts in California, and some other district courts, were consolidated by the Panel on Multidistrict Litigation in the Northern District of California under 28 U.S.C. § 1407(a). Some passengers filed suit against Boeing in state courts of Illinois, contending that the plane's autothrottle, autopilot, and low- airspeed-warning systems contributed to the pilots' errors. Boeing removed these suits to federal court, asserting two sources of jurisdiction: admiralty, plus federal officials' right to have claims against them resolved by federal courts. 28 U.S.C. §§ 1333, 1442. The Panel on Multidistrict Litigation then decided that these suits, too, should be transferred to California to participate in the consolidated pretrial proceedings. But before receiving the Panel's formal directions to transfer the suits to California, the district court remanded them for lack of subject-matter jurisdiction.2013 U.S. Dist. LEXIS 175699 (N.D.Ill. Dec. 16, 2013), reconsideration denied, 2014 U.S. Dist. LEXIS 50210 (N.D.Ill. Apr. 11, 2014). The court concluded that Boeing did not act as a federal officer for the purpose of § 1442 and that the tort occurred on land, when the plane hit the seawall, rather than over navigable water. Boeing appealed, as it is entitled to do: removal under § 1442 is an exception to 28 U.S.C. § 1447(d), which makes most remands non-reviewable. We stayed the remand orders.

I

First in line is the question whether Boeing was entitled to remove under § 1442(a)(1), which offers a federal forum to “[t]he United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office”. Boeing obviously is not the United States, a federal agency, or a federal officer, but it maintains that it is a “person acting under [a federal] officer” because federal regulations require it to assess and certify the airworthiness of its planes.

Boeing contends that it is “acting under” the Federal Aviation Administration because “the FAA has granted Boeing authority to use FAA-approved procedures to conduct analysis and testing required for the issuance of type, production, and airworthiness certifications for aircraft under Federal Aviation Regulations. In carrying out those functions, Boeing is subject to FAA control, and it acts as a representative of the FAA Administrator.” Instead of sending a cadre of inspectors to check whether every aircraft design meets every particular of every federal rule and policy, the FAA allows Boeing (and other firms) to do some of the checking itself. In particular, Boeing maintains, FAA Order 8100.9A authorizes and requires it to analyze the adequacy of its autopilot and autothrottle systems and certify that they meet the regulatory requirements of 14 C.F.R. § 25.1309.

It would be linguistically possible to call self-certification a form of “acting under” the FAA. Yet all businesses must ensure that they comply with statutes and regulations. Sometimes they use the information internally, to decide whether they must make changes. Sometimes they must certify compliance. For example, Boeing's brief on this appeal closes with three certifications: (1) that the brief was properly filed with the court and served on opposing counsel; (2) that the portions subject to a length limit contain 11,882 words and that it meets the typeface requirements of Fed. R.App. P. 32 ; and (3) that all of the materials required by Seventh Circuit Rule 30 have been included in the appendix. Would Boeing's lawyers say that these certifications make Boeing (or its law firm) persons “acting under” the judiciary? Yet certifications just demonstrate a person's awareness of the governing requirements and evince a belief in compliance. Judges often call lawyers “officers of the court,” but no one should think that this means that a lawyer can use § 1442 to remove a state-law malpractice suit to federal court. A figure of speech does not make someone a federal officer or a person “acting under” one. See Howard v. St. Germain, 599 F.3d 455 (5th Cir.2010) (treating a lawyer's invocation of § 1442 as sanctionably frivolous).

This analysis implies that the right question is whether being subject to governmental requirements is enough to make a person one “acting under” the author of those regulations, for the purpose of § 1442. And we know from Watson v. Philip Morris Cos., 551 U.S. 142, 127 S.Ct. 2301, 168 L.Ed.2d 42 (2007), that being regulated, even when a federal agency “directs, supervises, and monitors a company's activities in considerable detail” (id. at 145, 127 S.Ct. 2301 ), is not enough to make a private firm a person “acting under” a federal agency.

Watson sued a cigarette manufacturer, contending that it had cleverly manipulated the testing of its products to show low levels of tar and nicotine. The manufacturer contended that, to the contrary, it had tested exactly as federal officials required and that any deviation from those protocols was forbidden. As an entity merely following orders, the manufacturer asserted, it should be treated the same as the agency that issued the orders. The Court observed that regulation is ubiquitous, and much regulation can be called complex; if following federal rules allowed litigation in federal court, then all food and drug suits, and many others too, would be removable. The Court thought that neither the language nor the history of § 1442 justified reading it to cover the activities of regulated businesses. Instead, the Court concluded, persons “acting under” federal officials are those who provide aid in law enforcement, such as a local police officer who accompanies a federal agent on a drug raid and acts under the federal agent's direction.

This is where Boeing sees its opening. It does not just follow regulations; it also certifies compliance with them and in the process reduces the size of the federal bureaucracy. An employee of the FAA who certified the airworthiness of Boeing's autopilot and autothrottle systems would be covered by § 1442. Since the FAA has conscripted the regulated company's staff to perform those functions, Boeing maintains, it too comes within § 1442.

The problem with this argument is the one we stated at the outset. Every regulated firm must use its own staff to learn whether it has satisfied federal regulations. The staff of an electric utility running a coal-fired generation station must ensure that the equipment (much of it covered by detailed regulations) meets the EPA's specifications (and those of the host state) and is in working order. The staff also must monitor the stack gasses to ensure that the plant does not emit too much sulfur dioxide or particulate matter. It is a detail whether the firm sends the EPA a report (a “self-certification”) of compliance, or instead sends reports only when it finds non-compliance, or sends no reports at all and waits for inspectors to appear. Likewise with safety apparatus (and safety inspections) under the Occupational Safety and Health Act and hundreds of other federal statutes. We do not see any correlation between the required certifications and acting-under status. The Supreme Court in Watson gave, as one example of someone obviously not “acting under” a federal agency, a person filing a tax return. 551 U.S. at 152, 127 S.Ct. 2301. Yet the taxpayer must interpret and apply a complex statute and voluminous regulations, and the end of every return is a certification that this has been done and all income (and deductions) reported honestly. That process of self-reporting enables the IRS to have a smaller workforce, just as Boeing's procedures cut the FAA's payroll, but if taxpayers (and lawyers who certify that their briefs comply with rules) are not covered by § 1442, neither is Boeing.

The list of people who have to certify things is exceedingly long. For example, every employer with a federal contract must certify that it has paid workers the prevailing wage. See 29 C.F.R. §§ 3.3,...