Petition for Writ of Certiorari — Patrick Cook, et al., Petitioners v. Melissa Mays, et al.

NO. ___________

IN THE

Supreme Court of the United States

PATRICK COOK, ET AL., Petitioners,

v.

MELISSA MAYS, ET AL., Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

CHARLES E. BARBIERI

ALLISON M. COLLINS

FOSTER, SWIFT, COLLINS

& SMITH

313 S. Washington Square

Lansing, MI 48933

(517) 371-8155

CBarbieri@fosterswift.com

Counsel for Petitioners

Cook, Rosenthal & Prysby

JOHN J. BURSCH

Counsel of Record

BURSCH LAW PLLC

9339 Cherry Valley

Avenue SE, #78

Caledonia, MI 49316

(616) 450-4235

jbursch@burschlaw.com

Counsel for Petitioners

Cook, Rosenthal, Prysby,

Busch, Shekter Smith &

Wurfel

(Additional counsel on inside cover)

MICHAEL JOHN PATTWELL

JAY M. BERGER

CHRISTOPHER B. CLARE

CLARK HILL PLC

500 Woodward Ave.

Suite 3500

Detroit, MI 48226

(517) 318-3043

mpattwell@clarkhill.com

Counsel for Petitioner

Wurfel

PHILIP A. GRASHOFF, JR.

DENNIS K. EGAN

KRISTA A. JACKSON

KOTZ SANGSTER WYSOCKI

36700 Woodward Ave.

Suite 300

Bloomfield Hills, MI 48304

(313) 965-8300

pgrashoff@kotzsangster.com

Counsel for Petitioner

Busch

THADDEUS E. MORGAN

FRASER TREBILCOCK

124 W. Allegan Street

Suite 1000

Lansing, MI 48933

(517) 377-0877

tmorgan@fraserlawfirm.com

Counsel for Petitioner

Shekter Smith

i

QUESTIONS PRESENTED

1. Whether, in the context of a facial challenge to

a federal-officer removal, a court resolves all doubts

against removal and in favor of remand, as the Sixth

Circuit held here, or instead accepts the removal

notice’s allegations as true and resolves all doubts in

favor of federal jurisdiction, as held by the Third,

Fourth, Fifth, Seventh, Ninth, and Eleventh

Circuits.

2. Whether federal-officer removal is appropriate

when an individual has performed duties a federal

agency or officer would otherwise have to perform

absent a delegation of authority, as the Third, Fifth,

Seventh, and Eleventh Circuits have held, or

whether the performance of such duties is merely a

factor in the jurisdictional analysis, as the Sixth

Circuit concluded.

ii

PARTIES TO THE PROCEEDING

Petitioners are Defendants Patrick Cook, Adam

Rosenthal, Michael Prysby, Stephen Busch, Liane

Shekter Smith, and Bradley Wurfel.

Respondents are Plaintiffs Melissa Mays,

Michael Mays, Jacqueline Pemberton, Keith John

Pemberton, Elnora Carthan, and Rhonda Kelso.

Additional Defendants (but not Petitioners) are

the City of Flint, Michigan, and the Michigan

Department of Environmental Quality.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................ i

PARTIES TO THE PROCEEDING ........................... ii

PETITION APPENDIX TABLE OF CONTENTS ..... v

TABLE OF AUTHORITIES....................................... vi

OPINIONS BELOW .................................................... 1

JURISDICTION .......................................................... 1

STATUTE INVOLVED ............................................... 2

INTRODUCTION ........................................................ 3

STATEMENT .............................................................. 4

A. Overview of the case and the Safe

Drinking Water Act.................................. 4

B. Proceedings and allegations in notice

of removal. ................................................ 6

C. The district court’s decision ..................... 9

D. The Sixth Circuit’s split decision........... 11

E. Post-Sixth Circuit developments ........... 14

ARGUMENT ............................................................. 15

I.

The Sixth Circuit panel majority’s

decision to apply a presumption against

federal-officer removal conflicts with

decisions of this Court and those of other

circuits........................................................... 16

II. The Sixth Circuit panel majority created

a second circuit conflict when it

remanded this case for lack of

jurisdiction despite the fact that

Petitioners performed duties the EPA

would otherwise have had to perform

absent

the delegation of SDWA

authority. ...................................................... 21

iv

TABLE OF CONTENTS—Continued

III. This case is an ideal vehicle to clear up

the substantial confusion caused by the

Sixth Circuit’s published decision................ 24

CONCLUSION .......................................................... 28

v

PETITION APPENDIX TABLE OF CONTENTS

United States Court of Appeals for the

Sixth Circuit,

Opinion in 16-2484,

Issued September 11, 2017 ............................... 1a–35a

United States District Court for the

Eastern District of Michigan,

Opinion and Order Granting Plaintiffs’

Motion to Remand in 16-11519,

Issued October 6, 2016 .................................... 36a–48a

United States Court of Appeals for the

Sixth Circuit,

Order in 16-2484 (denying petition for

rehearing en banc),

Issued November 15, 2017 .............................. 49a–50a

vi

TABLE OF AUTHORITIES

Page(s)

Cases

Anderson v. Wyant,

W.D. Mich. No. 16-cv-00874 .......................... 14, 26

Atkins v. Snyder,

E.D. Mich. No. 17-cv-13724 ........................... 15, 27

Arizona v. Manypenny,

451 U.S. 232 (1981) .................................. 16, 17, 22

Bacon v. Earley,

E.D. Mich. No. 18-cv-10348 ........................... 15, 27

Bennett v. MIS Corp.,

607 F.3d 1076 (6th Cir. 2010) .......................... 9, 10

Bradford v. Harding,

284 F.2d 307 (2d Cir. 1960................................... 17

Caver v. Cent. Ala. Elec. Coop.,

845 F.3d 1135 (11th Cir. 2017) ...................... 19, 23

Clio Convalescent Center v. Michigan

Dep’t of Consumer & Indus. Servs.,

66 F. Supp. 2d 875 (E.D. Mich. 1999) ................. 10

Colorado v. Symes,

286 U.S. 510 (1932) ........................................ 16, 22

Durham v. Lockheed Martin Corp.,

445 F.3d 1247 (9th Cir. 2006) .................. 17, 18, 27

Eastman v. Marine Mech. Corp.,

438 F.3d 544 (6th Cir. 2006) .................... 11, 12, 16

Goncalves v. Rady Children’s Hosp. San Diego,

865 F.3d 1237 (9th Cir. 2017) .............................. 19

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Harnden v. Jayco, Inc.,

496 F.3d 579 (6th Cir. 2007) .................... 11, 12, 16

In re Commonwealth’s Motion to Appoint

Counsel Against or Directed to

Defender Ass’n of Phila.,

790 F.3d 457 (3d Cir. 2015) ................................. 18

Int’l Primate Prot. League v. Adm’rs of

Tulane Educ. Fund,

500 U.S. 72 (1991) ................................................ 18

Jefferson County v. Acker,

527 U.S. 423 (1999) .............................................. 18

Louisville & Nashville R.R. Co. v. Mottley,

211 U.S. 149 (1908) .............................................. 18

Maryland v. Soper,

270 U.S. 9 (1926) .................................................. 16

Mesa v. California,

489 U.S. 121 (1989) ................................................9

Nappier v. Snyder,

6th Cir. No. 17-1401....................................... 14, 26

Ohio State Chiropractic Ass’n v. Humana

Health Plan Inc.,

647 F. App’x 619 (6th Cir. 2016).......................... 11

Papp v. Fore-Kast Sales Co.,

842 F.3d 805 (3d Cir. 2016) ........................... 18, 22

Ruppel v. CBS Corp.,

701 F.3d 1176 (7th Cir. 2012) ........................ 19, 23

Sawyer v. Foster Wheeler LLC,

860 F.3d 249 (4th Cir. 2017) ................................ 19

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Tennessee v. Davis,

100 U.S. 257 (1879) .............................................. 17

Waid v. City of Flint,

E.D. Mich. No. 16-cv-13519 ........................... 15, 26

Watson v. Philip Morris Co.,

551 U.S. 142 (2007) ...................................... passim

Williamson v. Tucker,

645 F.2d 404 (5th Cir. 1981) ................................ 13

Willingham v. Morgan,

395 U.S. 402 (1969) .................................. 16, 17, 22

Winters v. Diamond Shamrock Chem. Co.,

149 F.3d 387 (5th Cir. 1998) ................................ 22

Zeringue v. Crane Co.,

846 F.2d 785 (5th Cir. 2017) .................... 19, 20, 23

Statutes

28 U.S.C. § 1254 ..........................................................1

28 U.S.C. § 1441 .................................................. 12, 16

28 U.S.C. § 1442 ................................................ 2, 9, 16

28 U.S.C. § 1446 ........................................................ 27

42 U.S.C. § 300f ...........................................................4

42 U.S.C. § 300g-1 .......................................................5

42 U.S.C. § 300g-2 .......................................................5

Federal Courts Improvement Act of 1996,

Pub. L. No. 104-317, § 206, 110 Stat.

3847 ...................................................................... 18

ix

TABLE OF AUTHORITIES—Continued

Page(s)

Mich. Comp. Laws § 325.1001 .................................. 10

Mich. Comp. Laws § 325.1003 .................................. 10

Michigan Safe Drinking Water Act, Act

399 of 1976 .............................................................6

Removal Clarification Act of 2011,

Pub. L. No. 112-51, 125 Stat. 545 ........................ 19

Regulations

40 C.F.R. § 142.10 .......................................................5

40 C.F.R. § 142.11 .......................................................5

40 C.F.R. § 142.15 .......................................................6

40 C.F.R. § 142.17 .......................................................6

40 C.F.R. § 142.19 .......................................................6

40 C.F.R. § 142.30 .......................................................6

Other Authorities

H.R. Report No. 93-1185 (1974) ..................................4

Pub. L. No. 93-266, 88 Stat. 1660 (1974) ....................4

1

OPINIONS BELOW

The opinion of the United States Court of

Appeals for the Sixth Circuit, App. 1a–35a, is

reported at 871 F.3d 437. The opinion of the United

States District Court for the Eastern District of

Michigan, App. 36a–48a, is not reported. The order of

the Sixth Circuit denying rehearing en banc, App.

49a–50a, is not reported.

JURISDICTION

The judgment of the court of appeals was entered

on September 11, 2017. App. 1a. The court of appeals

order denying rehearing en banc was entered on

November 15, 2017. App. 49a–50a. This Court has

jurisdiction under 28 U.S.C. § 1254(1).

2

STATUTE INVOLVED

28 U.S.C. § 1442 states, in relevant part:

(a) A civil action or criminal prosecution that

is commenced in a State court and that is

against or directed to 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 (1) 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, in an official or individual capacity, for or relating to any act under

color of such office. [Emphasis added.]

3

INTRODUCTION

This petition raises an exceptionally important

and recurring question of federal jurisdiction: the

standard that applies when district courts evaluate a

notice of removal based on federal-officer status. In

rejecting Petitioners’ notice of removal here, the

Sixth Circuit panel majority (1) refused to accept as

true the allegations stated in the notice of removal,

and (2) resolved all doubts in favor of remand, rather

than in favor of federal jurisdiction. As Judge

McKeague’s dissent explained at length, the panel

majority’s rule conflicts with previous decisions of

this Court and those of six other circuits. This

Court’s review is necessary to maintain consistency

among the lower courts.

The Sixth Circuit panel majority’s conclusion

also created a second conflict by holding that it is a

necessary but insufficient basis for federal jurisdiction that the removing officers were performing

duties that a federal agency or officer would otherwise have had to perform absent a delegation of

authority. This holding misinterprets Watson v.

Philip Morris Co., 551 U.S. 142, 150–51 (2007), and

conflicts with four other circuits.

The need for this Court’s immediate intervention

is stark. The panel majority’s erroneous holding

below is already being applied in other lower-court

decisions. And the result harms federal contractors,

state personnel, and many other individuals acting

at the direction of federal agencies, all of whom are

statutorily entitled to the benefit of a federal forum

rather than a state forum in the local community

where misconduct is alleged to have occurred.

Certiorari is warranted.

4

STATEMENT

A. Overview of the case and the Safe

Drinking Water Act

This case arises from the City of Flint’s decision

to switch its drinking-water source to the Flint

River, a change that inadvertently resulted in

drinking water becoming allegedly tainted with lead

leached from City and homeowner pipes. Petitioners

are current or former employees of the Michigan

Department of Environmental Quality (MDEQ), a

state agency that stands in the EPA’s shoes for the

purpose of enforcing the federal Safe Drinking Water

Act (SDWA) in Michigan.

Congress passed the SDWA to establish comprehensive federal regulations governing drinking

water. 42 U.S.C. §§ 300f et seq. The SDWA’s legislative history shows Congress intended the Act to

“(1) establish Federal standards for protection from

all harmful contaminants, which standards would be

applicable to all public water systems, and (2) establish a joint Federal-State system for assuring compliance with these standards.” H.R. Report No. 93-1185,

at 1 (1974); accord Pub. L. No. 93-266, 88 Stat. 1660

(1974). In sum, the EPA “provides guidance, assistance, and public information about drinking water,

collects drinking water data, and oversees state

drinking water programs.”1

1 EPA, Understanding the Safe Drinking Water Act, p. 2,

available at https://goo.gl/U9fcR5 (emphasis added).

5

The SDWA tasks the Administrator of the U.S.

Environmental Protection Agency with establishing

national drinking water regulations for public water

systems, governing the quantity of contaminants

that may be present in public drinking water. 42

U.S.C. § 300g-1. Accordingly, the EPA has promulgated comprehensive SDWA regulations to govern

safe drinking water, addressing various microorganisms, disinfectants or disinfection byproducts, inorganic chemicals (including lead), organic chemicals,

and radionuclides.2

To accomplish this massive federal objective,3

the SDWA allows the EPA to delegate enforcement

and administrative authority to state agencies,

provided the state agency demonstrates that it has:

(i) adopted drinking water regulations no less stringent than the National Primary Drinking Water

regulations promulgated by the EPA; (ii) implemented adequate provisions for enforcing SDWA

regulations, including such monitoring and inspections required by the EPA; and (iii) developed a

program to issue certain required reports and keep

relevant records. See 42 U.S.C. § 300g-2; 40 C.F.R.

§§ 142.10–.11. The EPA retains control over state

programs for monitoring and enforcing drinking

water quality, including lead-level standards; can

audit state drinking water programs and issue

2 See https://goo.gl/DGAA9Z.

3 The systems regulated by the EPA and delegated states and

tribes provide drinking water to 90% of Americans. See

https://goo.gl/U4V4Pc.

6

orders directing specific actions, as necessary; and

can withdraw a state’s primacy designation to

enforce the federal regulatory scheme. 40 C.F.R.

§§ 142.15, 142.17(a)(2), 142.19, 142.30.

The EPA granted Michigan primary enforcement

authority following the enactment of the Michigan

Safe Drinking Water Act, Act 399 of 1976 (Act 399).

Under this delegation, Petitioners regulated, monitored, and enforced the federal SDWA and its Lead

and Copper Rule in Flint, Michigan, which serve as

the basis of Plaintiffs’ claims. As the panel majority

acknowledged below, the EPA funds the MDEQ’s

activities in enforcing the SDWA, App. 12a, and if

the MDEQ did not so enforce, then the EPA would

have to step in and do so, App. 11a.

B. Proceedings and

notice of removal.

allegations

in

Plaintiffs filed a class-action lawsuit in the

United States District Court for the Eastern District

of Michigan in November 2015, and then filed

another class-action lawsuit based on the same

factual allegations in state court in January 2016.

Notice of Removal, RE 1, ¶¶ 1–2, Pg ID# 1–2.

Plaintiffs’ state-court complaint both explicitly4 and

implicitly5 alleges that the MDEQ Defendants had

duties to Plaintiffs pursuant to the SDWA and the

4 Am. Compl., RE 1-4, ¶¶ 74, 82, 84, 86, 95, 96, 99, 134, 160,

166, and 188, Pg ID# 115 et seq.

5Id. ¶¶ 1, 2, 8, 52, 77, 80, 81, 83, 85, 93, 94, 98, 123, 124, 125,

128, 130, 132, 135, 142, 143, 154, 184, and 187, Pg ID# 2 et seq.

7

EPA’s Lead and Copper Rule (LCR). Notice of

Removal, RE 1, ¶¶ 40, 42, Pg ID# 14.

In April 2016, the MDEQ Defendants filed a

Notice of Removal alleging that they were being sued

for purported gross negligence and intentional

misconduct in their alleged decision-making, public

notifications, and oversight of the City of Flint’s

monitoring, testing, and treatment of Flint’s drinking water under the SDWA and the LCR. Notice of

Removal, RE 1, ¶¶ 6–7, Pg ID# 3. More specifically,

the MDEQ Defendants alleged:

•

That their authority to regulate Michigan’s

public drinking water systems derived from

the SDWA, LCR, and other EPA regulations,

and whose actual regulation occurred under

the EPA’s direction, control, and close

supervision. Notice of Removal, RE 1, ¶ 17,

Pg ID# 5.

•

That they are being sued for allegedly failing

to adhere to federal law, due to their lack of

compliance with the SDWA and LCR’s

detailed monitoring, testing, sampling, and

notification requirements in overseeing the

Flint water system, as administered by the

MDEQ Defendants under the EPA’s direction

and control. Id. ¶ 29, Pg ID# 10.

•

That Plaintiffs’ Complaint contains allegations that the MDEQ Defendants had duties

to Plaintiffs based on the SDWA and LCR

standards, the breach of which gave rise to

Plaintiffs’ causes of action. Id. ¶ 40, Pg ID#

14.

8

•

That Plaintiffs’ claims are inextricably intertwined with the construction, interpretation,

and effect of the SDWA and the LCR. If these

Defendants establish that these federal laws

and regulations were not violated, Plaintiffs’

claims against these Defendants fail. Id.

¶ 41, Pg ID# 14.

•

That the MDEQ Defendants are being sued

for carrying out the EPA’s duty, as delegated

to the MDEQ Defendants, to enforce the

SDWA and LCR and ensure that public

water systems such as Flint’s comply with

the SDWA and LCR. Id. ¶ 42, Pg ID# 14.

•

That the SDWA reserves tremendous

oversight authority to the EPA, including

mandatory EPA intervention in the form of

notifications, advice, technical assistance,

and enforceable orders and inspections. Id.

¶ 22, Pg ID# 7.

•

That the MDEQ functions as an agent of the

EPA to implement the SDWA and LCR. The

MDEQ entered into an agreement with the

EPA to assure compliance with the SDWA

and LCR, has the authority to investigate

whether federal law has been violated, and

enforces the SDWA and LCR by issuing

violations to public water systems. Id. ¶ 31,

Pg ID# 11.

9

•

That the MDEQ Defendants are the EPA’s

agents, acting under the EPA’s direction and

control to assist with implementing and

enforcing the federal SDWA and LCR.

Furthermore, the MDEQ Defendants’ alleged

actions and inactions in this case were not

only taken pursuant to the EPA’s LCR,

guidance documents, training manuals, and

quarterly and annual reviews, but they were

also guided by repeated written and verbal

dialogue with EPA officers who advised and

oversaw the Defendants’ regulation of the

Flint water system. Id. ¶ 32, Pg ID# 11–12.

C. The district court’s decision

The district court observed that the purpose of

the federal-officer removal statute, 28 U.S.C.

§ 1442(a)(1), is to “protect the operations of the federal government from state interference,” and that

the statute covers private persons who act “as an

assistant to a federal officer in helping that official to

enforce federal law.” App. 40a–41a (citing Mesa v.

California, 489 U.S. 121, 125–26 (1989), and Watson

v. Philip Morris Co., 551 U.S. 142, 150–51 (2007)).

When a private person acting as an assistant to a

federal officer seeks to establish federal removal

jurisdiction, that person need only show that “(1) he

‘acted under a federal official’; (2) he performed the

action for which he is being sued ‘under color of

federal office’; and (3) he raised a colorable federal

defense.” App. 41a (quoting Bennett v. MIS Corp.,

607 F.3d 1076, 1086–89 (6th Cir. 2010)).

10

To put it another way, said the district court, a

private individual “acting under” a federal official

“must involve an effort to assist, or help carry out,

the duties or tasks of the federal superior.” App. 41a

(quoting Watson, 551 U.S. at 152). And to show that

the disputed actions were performed “under color of

federal office,” the private individual “must show a

nexus, a causal connection between the charged conduct and the asserted official authority.” App. 41a–

42a (quoting Bennett, 607 F.3d at 1088).

Attempting to apply these standards, the district

court concluded that while “the EPA provided

oversight and guidance to the MDEQ, this does not

establish that MDEQ officials were acting pursuant

to federal direction, as required for federal officer

removal.” App. 42a (citations omitted). Of critical

importance to the district court was the fact that the

individual MDEQ employees were not acting under

an agency contract with the federal government.

App. 43a (contrasting this case with Clio

Convalescent Center v. Michigan Dep’t of Consumer

& Indus. Servs., 66 F. Supp. 2d 875, 876–77 (E.D.

Mich. 1999), where federal-officer removal was

proper because the state agency had a contract with

the U.S. Secretary of Health and Human Services).

The district court also emphasized that the MDEQ’s

authority over public water derives from the

Michigan Safe Drinking Water Act. App. 42a (citing

Mich. Comp. Laws §§ 325.1001, .1003). “The fact that

MDEQ officials may have complied with federal law,”

said the district court, “does not transform them into

federal officers.” App. 44a. The court stated that at

“most, Defendants suggest their actions were

permitted by federal law, which is insufficient” to

invoke federal-officer removal. App. 44a.

11

D. The Sixth Circuit’s split decision

Petitioners appealed, and the Sixth Circuit

affirmed 2-1, with the majority and dissent reaching

contrary conclusions about the legal standard to

apply when evaluating the propriety of federal-officer

removal. The panel majority began with the rule that

“removal statutes are to be strictly construed, and

‘all doubts should be resolved against removal.’” App.

7a (quoting Harnden v. Jayco, Inc., 496 F.3d 579, 581

(6th Cir. 2007), and citing Eastman v. Marine Mech.

Corp., 438 F.3d 544, 550 (6th Cir. 2006)). Reviewing

this Court’s analysis of the federal-officer removal

statute in Watson, the panel majority acknowledged

that a factor supporting removal jurisdiction was the

reality that the “EPA would have to enforce the

SDWA in Michigan if the MDEQ did not have primary enforcement authority to do so.” App. 11a. But

the majority interpreted Watson “as requiring more.”

Id. Specifically, said the majority, Petitioners have to

show that they were “in a relationship with the

federal government where the government [wa]s

functioning as [their] superior.” Id.

Applying that test, the majority said that the

EPA’s funding of the MDEQ as primary SDWA

enforcer is insufficient to establish a delegation of

legal authority. App. 12a. And, like the district court,

the majority found dispositive the lack of any contract with the federal government. App. 14a (citing

Ohio State Chiropractic Ass’n v. Humana Health

Plan Inc., 647 F. App’x 619, 623–24 (6th Cir. 2016),

for the proposition that “the absence of language

allowing a private entity to act on the federal

government’s behalf weighs against allowing federalofficer removal”).

12

The majority also opined that the policy

underlying the federal-officer removal statute—

protection from local prejudice against unpopular

federal laws or federal officials—did not come into

play in the case. App. 19a. The majority so concluded

despite Petitioners’ allegations that their enforcement of the SDWA and LCR was the crux of this

case, including that, per the EPA, the LCR was

ambiguous as applied to Flint’s primary water source

switch. Notice of Removal ¶¶ 32, 38, 40, 44.

Judge McKeague dissented sharply, criticizing

the majority for having started with the wrong legal

framework. “The majority relies on a general rule

favoring resolution of doubts against removal. But in

this context, our precedents require us to resolve

doubts in favor of the party or parties invoking

federal jurisdiction.” App. 24a (McKeague, J.,

dissenting). For its starting point, said Judge

McKeague, the majority relied on Harnden and

Eastman, which both involved a traditional removal

action under 28 U.S.C. § 1441. App. 31a–32a. “The

federal officer removal statute, however, is a

different animal. The fundamental basis for removal

under this statute is the status of the defendant as a

federal officer or one acting under a federal officer.”

App. 32a. Unlike a traditional removal action, this

“status would ordinarily be set forth in the

defendant’s notice of removal, not in the plaintiff’s

complaint. It is for this reason, ostensibly, that

‘doubts’ arising under a facial attack on federal

officer removal are to be resolved in favor of

removal.” Id. (emphasis added).

13

The MDEQ defendants, Judge McKeague noted,

contend they were acting under the direction or

instruction or guidance or control of the EPA, and

their notice of removal “is replete with detailed

allegations tending to substantiate their position.”

App. 33a. Thus, the court should assume jurisdiction

unless the alleged basis for jurisdiction is “clearly

immaterial or insubstantial.” App. 34a (quoting

Williamson v. Tucker, 645 F.2d 404, 415–16 (5th Cir.

1981)). “The lengths to which the majority opinion

goes to explain why defendants’ allegations are

colorable but not persuasive . . . belie any notion that

defendants’ allegations are ‘clearly immaterial or

insubstantial.’” Id.

In sum, said Judge McKeague, the “allegations of

the notice of removal . . . , on their face, aver that

plaintiffs’ ‘garden variety state law tort action’ is

premised on alleged violations of duties stemming

from federal standards established by the SDWA and

the LCR—standards the MDEQ defendants were

charged with monitoring and enforcing by virtue of

the EPA’s delegation of authority to them.” App. 30a.

And Respondents’ counsel “all but conceded” that

Respondents’ tort claims were “inextricably intertwined” with enforcement of SDWA standards. App.

30a n.2. When pressed to identify the duty that the

MDEQ defendants purportedly breached, counsel

“was simply unable to identify a state-law source of

the duty owed.” Id.

14

Indeed, Judge McKeague observed, “[c]ounsel’s

failure in this regard is not surprising; it’s entirely

consistent with plaintiffs’ amended complaint, which

includes several references to the federal LCR, but

does not name a state-law source of the duty

allegedly breached.” Id. While this reality “does not

dictate that the removing defendants were acting as

or under federal officers,” it does, by “negative

implication,” enhance “the facial ‘color’ in defendants’

allegations that their complained-of actions were

taken pursuant to federal authority.” Id. Judge

McKeague would have reversed the district court

and remanded for proceedings on the merits in the

district court. App. 35a.

E. Post-Sixth Circuit developments

While the appeal was pending in the Sixth

Circuit, Plaintiffs amended their Complaint in

February 2017, and the case was again removed, by

a party other than Petitioners, to federal court under

the Class Action Fairness Act. Plaintiffs moved for

remand, but remand was denied in August 2017.

Still, the Sixth Circuit’s published decision is

wreaking havoc on federal-officer removal jurisdiction in other cases. As discussed at greater length

below, a separate Sixth Circuit panel is prepared to

apply the decision here to a separate case, resulting

in a remand to state court. Nappier v. Snyder, 6th

Cir. No. 17-1401. Another case, removed to the

United States District Court for the Western District

of Michigan, is stayed pending the outcome of this

proceeding. Anderson v. Wyant, W.D. Mich. No. 16cv-00874.

15

The United States District Court for the Eastern

District of Michigan remanded yet another case

based on the decision here. Waid v. City of Flint,

E.D. Mich. No. 16-cv-13519. And the MDEQ

Defendants have removed or are preparing to remove

other recently filed state-court cases, to preserve

their claim of federal-officer removal, even though

the federal district court in such cases will be bound

by the decision here. E.g., Bacon v. Earley, E.D.

Mich. No. 18-cv-10348; Atkins v. Snyder, E.D. Mich.

No. 17-cv-13724. In sum, the panel’s published

opinion immediately impacts federal jurisdiction in

several other pending cases, and it will have a

drastic and deleterious effect on federal contractors,

state agency personnel, and other agents of the

federal government moving forward.

ARGUMENT

In rejecting Petitioners’ removal notice, the Sixth

Circuit articulated two rules in conflict with this

Court’s precedents and those of other circuits. The

first is the proper legal standard to apply when

evaluating a notice of federal-officer removal: a

presumption in favor of removal, or a presumption

against it. The second is whether federal-officer

jurisdiction is properly invoked when a non-federal

defendant performs tasks that a federal agency

would otherwise have to perform. This Court should

grant the petition and resolve both conflicts.

16

I.

The Sixth Circuit panel majority’s decision

to apply a presumption against federalofficer removal conflicts with decisions of

this Court and those of other circuits.

As explained at length in Judge McKeague’s dissent, the panel majority started with the wrong legal

premise, i.e., that “removal statutes are to be strictly

construed, and ‘all doubts should be resolved against

removal.’” App. 7a–8a (quoting Harnden and citing

Eastman). That is the standard for traditional

removal under 28 U.S.C. § 1441. The Sixth Circuit’s

adoption of the standard in the context of federalofficer removal under 28 U.S.C. § 1442 conflicts with

decisions of this Court and those of other circuits, all

of which have consistently held that notices of

removal under § 1442 must be interpreted broadly in

favor of removal.

For example, in Arizona v. Manypenny, 451 U.S.

232 (1981), this Court noted that removal under

§ 1442(a)(1) ensures a federal official (or someone

acting under such an official) a forum “free from local

interests or prejudice.” Id. at 241–42 (citing Colorado

v. Symes, 286 U.S. 510, 517–18 (1932); Maryland v.

Soper, 270 U.S. 9, 32 (1926), and Willingham v.

Morgan, 395 U.S. 402, 407 (1969). To protect such

individuals, “this Court has held that the right of

removal is absolute for conduct performed under

color of federal office, and has insisted that the policy

favoring removal ‘should not be frustrated by a

narrow, grudging interpretation of § 1442(a)(1).’” Id.

at 242 (quoting Willingham, 395 U.S. at 407). “It

scarcely needs to be said that” federal-officer removal

statutes “are to be liberally construed.” Symes, 286

U.S. at 517.

17

Other circuits are likewise in direct conflict with

the Sixth Circuit’s rule. In Durham v. Lockheed

Martin Corp., 445 F.3d 1247 (9th Cir. 2006), an

electronics technician for the U.S. Air Force filed a

state-court action against Lockheed Martin, a

government contractor, for alleged exposure to

asbestos.

Lockheed

Martin

removed

under

§ 1442(a)(1). The federal district court remanded the

matter to state court, applying the same legal

standard for federal-officer removal that the Sixth

Circuit adopted here, namely, that “[r]emoval

statutes are to be strictly construed, and any doubts

as to the right of removal must be resolved in favor of

remanding to state court.” Id. at 1252. The Ninth

Circuit said that this standard was correct as to

§ 1441 removals, but wrong for federal-officer

removal under § 1442. Id. Relying on Manypenny

and Willingham, the Ninth Circuit held “that when

federal officers and their agents are seeking a federal

forum, we are to interpret section 1442 broadly in

favor of removal.” Id. (emphasis added).

That standard is applied “for good reason,” said

the Ninth Circuit. Id. Section 1442, “although dealing with individuals, vindicates also the interests of

government itself; upon the principle that it

embodies ‘may depend the possibility of the general

government’s preserving its own existence.’” Id. at

1252–53 (quoting Bradford v. Harding, 284 F.2d 307,

310 (2d Cir. 1960), itself quoting Tennessee v. Davis,

100 U.S. 257, 262 (1879)). “If the federal government

can’t guarantee its agents access to a federal forum if

they are sued or prosecuted, it may have difficulty

finding anyone willing to act on its behalf.” Id. at

1253.

18

“Because it’s so important to the federal government to protect federal officers, removal rights under

section 1442 are much broader than those under

section 1441,” the Ninth Circuit continued. Id.

“Federal officers can remove both civil and criminal

cases, while section 1441 provides only for civil

removal.” Id. “Unlike other defendants, a federal

officer can remove a case even if the plaintiff couldn’t

have filed the case in federal court in the first

instance.” Id. “And removals under section 1441 are

subject to the well-pleaded complaint rule, while

those under section 1442 are not.” Id. (comparing

Louisville & Nashville R.R. Co. v. Mottley, 211 U.S.

149, 152 (1908), and Jefferson County v. Acker, 527

U.S. 423, 431 (1999)).

Moreover, “the command to interpret section

1442 liberally” comes not only from this Court, but

from Congress itself. Id. at 1252. When this Court

“held that federal agencies didn’t have any removal

rights under a prior version of section 1442,

Congress amended the statute to reverse the

decision.” Id. (citing Int’l Primate Prot. League v.

Adm’rs of Tulane Educ. Fund, 500 U.S. 72, 76, 79 n.5

(1991), and Federal Courts Improvement Act of 1996,

Pub. L. No. 104-317, § 206, 110 Stat. 3847, 3850)).

The Third, Fourth, Fifth, Seventh, and Eleventh

Circuits are in accord with the Ninth. E.g., Papp v.

Fore-Kast Sales Co., 842 F.3d 805, 811–12 (3d Cir.

2016) (“Unlike the general removal statute, the

federal officer removal statute is to be ‘broadly

construed’ in favor of a federal forum.”) (quoting In re

Commonwealth’s Motion to Appoint Counsel Against

or Directed to Defender Ass’n of Phila., 790 F.3d 457,

466–67 (3d Cir. 2015)); Sawyer v. Foster Wheeler

19

LLC, 860 F.3d 249, 255 (4th Cir. 2017) (phrase

“acting under” is “broad” and is to be “liberally

construed” in favor of the entity seeking removal)

(quotation omitted); Zeringue v. Crane Co., 846 F.3d

785, 789 (5th Cir. 2017) (“Although the principle of

limited federal court jurisdiction ordinarily compels

[district courts] to resolve any doubts about removal

in favor of remand, . . . courts have not applied that

tiebreaker when it comes to the federal officer

removal statute in light of its broad reach.”); Ruppel

v. CBS Corp., 701 F.3d 1176, 1181 (7th Cir. 2012)

(“We liberally construe” the phrase “‘acted under’ a

federal officer.”) (citation omitted); Goncalves v. Rady

Children’s Hosp. San Diego, 865 F.3d 1237, 1244 (9th

Cir. 2017) (“duty to ‘interpret Section 1442 broadly in

favor of removal.’”) (citation omitted); Caver v. Cent.

Ala. Elec. Coop., 845 F.3d 1135, 1142 (11th Cir. 2017)

(“The phrase ‘acting under’ is broad and thus we

‘liberally construe’ this portion of § 1442(a)(1).”)

(citation omitted).

The Sixth Circuit’s published decision is even

more of an outlier when considering § 1442’s broadened scope because of Congress’s 2011 amendments

to the statute. Before 2011, a defendant had to

establish that a plaintiff's claim was “for a[n] act

under color of office.” Congress amended that provision in 2011 to cover any action “for or relating to

any act under color of office.” Removal Clarification

Act of 2011, Pub. L. No. 112-51, 125 Stat. 545

(emphasis added). “This new language ‘broaden[ed]

the universe of acts’ that enable federal removal,

H.R. Rep. 112-17, 6, 2011 U.S.C.C.A.N. 420, 425,

such that there need be only ‘a connection or association between the act in question and the federal

office.’” Sawyer, 860 F.3d at 258 (citations omitted).

20

So the 2011 Amendments “expanded the breadth of

acts sufficient to establish a causal nexus even

further.” Zeringue, 846 F.3d at 793.

As Judge McKeague explained below, applying

the correct standard here is dispositive. Even the

panel “majority acknowledges that several of the

allegations in the notice of removal facially support a

finding that the MDEQ defendants ‘acted under’ the

oversight or direction of the EPA.” App. 31a

(McKeague, J., dissenting). For instance:

the majority recognizes (a) that the EPA delegated primary SDWA enforcement authority

to the MDEQ; (b) that the MDEQ receives

funds from the EPA to perform the required

monitoring and enforcement; (c) that the

EPA would have to enforce the SDWA in

Michigan if the MDEQ did not have primary

enforcement authority; (d) that the MDEQ

was required to submit reports to the EPA

detailing compliance with the standards

established by the SDWA and the LCR;

(e) that during the course of the MDEQ’s

monitoring of the Flint water system, the

MDEQ defendants received numerous

communications and recommendations from

the EPA, culminating in the EPA’s January

2016 Emergency Administrative Order

attached to the notice of removal; and (f) that

the Emergency Order, by establishing the

EPA’s own monitoring of the Flint water

system and ordering the MDEQ defendants

to take myriad actions to assist the EPA,

evidences the EPA’s supervision and control.

[Id.]

21

In sum, Judge McKeague concluded, under “the

regulatory scheme established by the SDWA, as

described in the notice of removal, the MDEQ defendants have stated facts which, if proved, could

support a finding that they were, in their enforcement of water quality standards, acting under the

guidance and oversight and, ultimately, direction of

the EPA.” App. 32a (McKeague, J., dissenting). That

is enough to establish federal jurisdiction. Id.

Accordingly, this Court should grant the petition

and reverse. The Sixth Circuit’s published opinion

conflicts with decisions of this Court and leaves the

Sixth Circuit itself on the short end of a 6-1 circuit

split. It cannot be the case that a party invoking the

federal-officer-removal statute receives the benefit of

the doubt everywhere in the country except in

Michigan, Ohio, Kentucky, and Tennessee.

II. The Sixth Circuit panel majority created a

second circuit conflict when it remanded

this case for lack of jurisdiction despite the

fact that Petitioners performed duties the

EPA would otherwise have had to perform

absent the delegation of SDWA authority.

The panel majority’s decision also creates a

second conflict by misinterpreting Watson v. Philip

Morris, 551 U.S. 142 (2007). In Watson, consumer

plaintiffs filed a putative class action in state court

against cigarette manufacturers arising out of the

testing and advertising of tar and nicotine levels in

cigarettes. The manufacturer removed under

§ 1442(a)(1), alleging it was acting under the federal

government’s dictates for testing cigarettes.

22

This Court began by summarizing the history

and purpose of federal-officer removal, emphasizing

that § 1442 must be “liberally construed.” Id. at 147

(citing Symes, 286 U.S. at 517; Manypenny, 451 U.S.

at 242, and Willingham, 395 U.S. at 406–07). But the

Court cautioned that § 1442’s broad scope does not

extend to a private person acting simply to comply

with federal law. Id. at 152. Taxpayers who fill out

complex federal tax forms, for example, are not

“acting under” a federal official for purposes of

§ 1442. Id. What § 1442 contemplates “goes beyond

simple compliance with the law and helps officers

fulfill other governmental tasks.” Id. at 153. The

Court favorably cited Winters v. Diamond Shamrock

Chemical Co., 149 F.3d 387 (5th Cir. 1998), as an

example where federal jurisdiction was correctly

invoked because “Dow performed a job that, in the

absence of a contract with a private firm, the

Government itself would have had to perform.” Id.

The circuits have correctly interpreted Watson to

mean exactly what it said when explaining why

federal jurisdiction existed in Winters. For example,

the Third Circuit in Papp held that the defendant

company did not have to show that its actions were

the result of a direct order or prohibition from a

federal officer or agency to be “acting under” them.

When “‘the federal government uses a private corporation to achieve an end it would have otherwise used

its own agents to complete,’ that contractor is ‘acting

under’ the authority of a federal officer.” Id. The

Third Circuit rejected the argument—accepted by

the panel majority here—that a defendant can only

be “acting under” a federal officer if the complainedof conduct was done at the specific behest of the

federal officer or agency. Id. at 813.

23

Similarly, the Fifth Circuit in Zeringue held that

the mere fact that the federal government would

have had to carry out the tasks forming the basis of

the complaint if the defendant had not done so is

enough to satisfy the “acting under” requirement of

federal-officer removal. Zeringue, 846 F.3d at 792.

According to the Fifth Circuit, this Court in Watson

clarified that “acting under” refers to a relationship

that typically involves “‘subjection, guidance, or control’, but at a minimum it ‘must involve an effort to

assist, or to help carry out, the duties or tasks of the

federal superior.’” Id. (citation omitted). “Direct oversight of the specific acts that give rise to a plaintiff’s

complaint is not required to satisfy this part of

Section 1442.” Id.

The Seventh and Eleventh Circuits have held

likewise. Ruppel, 701 F.3d at 1181 (“‘Acting under’

covers situations, like this one, where the federal

government uses a private corporation [or a state

agency] to achieve an end it would have otherwise

used its own agents to complete.”); Caver, 845 F.3d at

1143 (federal-officer removal appropriate where “the

private person [or state agency] must help federal

officers fulfill a basic governmental task that the

government otherwise would have had to perform.”).

The Sixth Circuit interpreted Watson very differently. Rather than interpret Watson to mean exactly

what it said, the Sixth Circuit said that “Watson did

not formulate a clear test for when the acting-under

requirement is satisfied.” App. 10a. In response to

Petitioners pointing out that “the EPA would have to

enforce the SDWA in Michigan if the MDEQ did not

have primary enforcement authority to do so,” the

panel majority said this was merely a “factor

24

supporting removal,” but not dispositive. App. 11a.

The panel majority read Watson “as requiring more,”

namely evidence of a specific “delegation of legal

authority” or a contract. App. 11a–12a.

Regardless of whether the panel majority correctly interpreted Watson or whether the better view

is that propounded by the Third, Fifth, Seventh, and

Eleventh Circuits, this Court should intervene and

clarify precisely what Watson meant. Again, the

proper analysis to apply will be dispositive, because

it cannot be disputed that Petitioners performed

tasks the EPA would otherwise have had to perform.

Indeed, that is the entire purpose of the EPA granting primary enforcement authority to Michigan,

acting through the MDEQ and its employees.

Certiorari is warranted.

III. This case is an ideal vehicle to clear up the

substantial confusion caused by the Sixth

Circuit’s published decision.

Federal-officer removal is a recurring issue of

substantial significance. This truth is indicated by

the significant number of circuit cases applying

§ 1442(a)(1), and it is undergirded by the important

federal policies that motivated Congress’s enactment

of § 1442 in the first instance. Here, Petitioners are

facing substantial local prejudice for their enforcement of federal regulation per the EPA’s guidance,

direction, and control, regulations which the EPA

has admitted were ambiguous as applied to Flint’s

primary water switch. And the number of very recent

cases in other circuits (four in 2017 alone) indicates a

rise in federal contractors and others seeking a

25

federal forum to determine local controversies

stemming from tasks undertaken on behalf of the

federal government which its agencies and personnel

would otherwise have to perform.

This case is an ideal vehicle to fix the rift in

circuit authority that the panel majority’s decision

created. The two issues presented are clearly framed

in the Sixth Circuit opinion, and their resolution

does not depend on any disputed facts. Given the

well-pleaded allegations in Petitioners’ notice of

removal, the outcome turns entirely on the proper

legal standard to apply under § 1442.

Respondents will likely object because, as noted

above, after they amended their Complaint, the case

was removed a second time under the Class Action

Fairness Act, with the result that federal jurisdiction

was established anyway. But for two independent

reasons, that development does not alleviate the

need for this Court to take immediate action.

First, there are myriad reasons why the district

court could still be divested of jurisdiction. If an

amended complaint or further proceedings in the

district court undermine the basis for federal

jurisdiction under the Class Action Fairness Act,

Respondents will be right back in state court

notwithstanding that they acted under federal

officers and carried out tasks EPA personnel would

otherwise have performed at all relevant times to

enforce the SDWA.

26

Second, there are numerous other cases arising

out of the City of Flint’s decision to change its drinking water source that will be impacted by the Sixth

Circuit’s binding but erroneous decision here. For

example, on October 6, 2017, oral argument was held

in Nappier v. Snyder, 6th Cir. No. 17-1401, and the

published opinion in this case came up repeatedly

regarding the identical federal-officer-removal issue.

At 5:14 of the oral argument audio,6 one of the panel

members asked counsel, “Could you explain why the

Mays case doesn’t control here?” When counsel for

Petitioners tried to argue that Mays was decided

incorrectly, the panel member responded (at 5:31): “I

didn’t ask if it was wrong, or wrongfully decided, I

just asked whether it controls.” Elaborating further,

the panel member indicated (at 6:24) that the Court

in Nappier was bound by the Court’s decision in

Mays here: “As things currently stand, I mean,

maybe the Mays case will be overturned in the future

or whatever, but as things currently stand, it is now

prevailing law in the Sixth Circuit.” When counsel

indicated that the dissent in Mays “got it right,” the

panel member declined to consider the dissent’s

reasoning (at 7:38), “Well, as things currently stand,

the dissent is heresy.”

As noted above, additional cases include

Anderson v. Wyant, W.D. Mich. No. 16-cv-00874,

which the United States District Court for the

Western District of Michigan has stayed pending the

outcome of this proceeding, and Waid v. City of Flint,

E.D. Mich. No. 16-cv-13519, which is now on appeal

6 https://goo.gl/xDX8hQ

27

to the Sixth Circuit after the United States District

Court for the Eastern District of Michigan remanded

based on the decision here. In addition, Petitioners

have recently removed or are preparing to remove

several additional cases in light of the strict time

frame for removing actions that 28 U.S.C. § 1446

imposes, including Bacon v. Earley, E.D. Mich. No.

18-cv-10348, and Atkins v. Snyder, E.D. Mich. No.

17-cv-13724. The federal district court will be bound

by the published decision here in all of these cases

and others, both related to Flint’s drinking water

and beyond.

In sum, the panel majority’s published opinion

immediately impacts federal jurisdiction in numerous other pending cases, and it will have a drastic

and deleterious effect on federal contractors, state

agency personnel, and other agents of the federal

government, and the federal government itself. “If

the federal government can’t guarantee its agents

access to a federal forum if they are sued or

prosecuted, it may have difficulty finding anyone

willing to act on its behalf.” Durham, 445 F.3d at

1253.

All these factors counsel strongly in favor of a

grant of the petition and resolution of the two circuit

conflicts presented. Alternatively, the Court could

summarily reverse, either with an opinion resolving

the conflict or simply by vacating the published Sixth

Circuit opinion in its entirety. Any of these options

would once again align the Sixth Circuit with the

rest of the country regarding the proper standards to

employ when considering the propriety of § 1442

federal-officer removal.

28

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

JOHN J. BURSCH

Counsel of Record

BURSCH LAW PLLC

9339 Cherry Valley

Avenue SE, #78

Caledonia, MI 49316

(616) 450-4235

jbursch@burschlaw.com

Counsel for Petitioners Cook,

Rosenthal, Prysby, Busch,

Shekter Smith & Wurfel

CHARLES E. BARBIERI

ALLISON M. COLLINS

FOSTER, SWIFT, COLLINS

& SMITH

313 S. Washington Square

Lansing, MI 48933

(517) 371-8155

CBarbieri@fosterswift.com

Counsel for Petitioners

Cook, Rosenthal & Prysby

29

MICHAEL JOHN PATTWELL

JAY M. BERGER

CHRISTOPHER B. CLARE

CLARK HILL PLC

500 Woodward Ave.

Suite 3500

Detroit, MI 48226

(517) 318-3043

mpattwell@clarkhill.com

Counsel for Petitioner

Wurfel

THADDEUS E. MORGAN

FRASER TREBILCOCK

124 W. Allegan Street

Suite 1000

Lansing, MI 48933

(517) 377-0877

tmorgan@fraserlawfirm.com

Counsel for Petitioner

Shekter Smith

FEBRUARY 2018

PHILIP A. GRASHOFF, JR.

DENNIS K. EGAN

KRISTA A. JACKSON

KOTZ SANGSTER WYSOCKI

36700 Woodward Ave.

Suite 300

Bloomfield Hills, MI 48304

(313) 965-8300

pgrashoff@kotzsangster.com

Counsel for Petitioner

Busch