In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐1818
PANTHER BRANDS, LLC, et al.,
Plaintiffs‐Appellants,
v.
INDY RACING LEAGUE, LLC, doing business as INDYCAR, 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.
____________________
ARGUED NOVEMBER 3, 2015 — DECIDED JUNE 27, 2016
____________________
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
* 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 Engʹg
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 (or
4 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 under
No. 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 courtʹs disagreement with the Attorney Generalʹs 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.