Effective Use Of ODAR, DER And DMIR Status To Support Federal Officer Removal

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...