PANTHER BRANDS, LLC, et al.,
No. 15-1818
United States Court of Appeals For the Seventh Circuit
June 27, 2016
ARGUED NOVEMBER 3, 2015
Before WOOD, Chief Judge, EASTERBROOK, Circuit Judge, and BRUCE, District Judge.
WOOD, 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*
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 National Guard (“the Guard“) had been Panthеr‘s team sponsor from 2008 to 2013. After it signed the 2013 contract, Panther learned that
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 Mеtzler, who acted as the liaison between the Guard and Panther. The defendants removed the case to federal court, where the United States was substituted аs a party for Metzler, see
I
The Appellees offer several bases for federal subject-matter jurisdiction over this dispute: removal based on the existence of federal-question jurisdiction,
federal officer removal, id.
A
A defendant may remove a lawsuit to federal court under
B
The Appellees also invoke
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[.]”
IndyCar and thе 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 federal authоrity.
Docupak says that it “acted under” the Guard by collecting and summarizing bids for the Guard‘s sponsorship. There are indeed cases supporting this form of removal “whеre the federal government uses a private corporation to achieve an end it would have otherwise used its own agents to complete.” Id. Thе Supreme Court applied this doctrine in decisions 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 privatе entities were acting under
the federal government or its agencies for federal-officer removal purposes when providing benefits to federal employees under the direction of the Office of Personnel Management, 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 Ocеanic and Atmospheric Administration grants, Town of Davis v. W. Virginia Power & Transmission 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 sectiоn 1442, but Appellees take this idea too far. We held in Lu Junhong v. Boeing Co., 792 F.3d 805, 810 (7th Cir. 2015), that merely being subject to federal regulations or performing some functions that the government agenсy 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, supervises, and monitors a company‘s activities in considerable detail” does not suffice to make that company a “person acting under” a federal officer. Id. at 145. Docupak‘s activities on behalf of the Guard fell far short of the closely monitored and highly regulated relationships involved in the distillery, federal benefits, Agent Orange, or oceanic preserves cases on which it relies. Neither did the Guard delegate any rulemaking authority to Doсupak, 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 unavailable.
C
Finally, IndyCar argues that the Westfall Act,
The case before us does not fit that pattern. After the United States (standing in for Mеtzler) 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 accepting that Westfall Act removal was appropriate initially.
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.