Petition for Writ of Certiorari — Stephen Busch, et al., Petitioners v. Tamara Nappier, et al.

NO. ___________

IN THE

Supreme Court of the United States

STEPHEN BUSCH, ET AL., Petitioners,

v.

TAMARA NAPPIER, 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 & 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, Busch, Prysby,

Shekter Smith, Wurfel &

Wyant

(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 Petitioners

Wurfel & Wyant

PHILIP A. GRASHOFF, JR.

DENNIS K. EGAN

KRISTA A. JACKSON

KOTZ SANGSTER WYSOCKI

36700 Woodward Ave.

Suite 300

Bloomfield Hills, MI 48304

(248) 646-2073

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 has held, 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 has held.

ii

PARTIES TO THE PROCEEDING

Petitioners are Defendants Patrick Cook,

Michael Prysby, Stephen Busch, Liane Shekter

Smith, Daniel Wyant, and Bradley Wurfel.1

Respondents are Plaintiff Tamara Nappier, as

mother and next friend of Takarie Nappier, a minor

child, on behalf of a class of all others similarly

situated.

Additional Defendants (but not Petitioners) are

Richard Snyder, Darnell Earley, Gerald Ambrose,

Eden Wells, Nick Lyon, Nancy Peeler, and Robert

Scott.

On April 19, 2018, Defendants Wyant, Wurfel, and Shekter

Smith were voluntarily dismissed with prejudice from this

matter. But these Defendants remain parties to this request for

certiorari, as they will be subject to any law developed from this

case in related cases bound by the Sixth Circuit’s erroneous

removal jurisprudence.

1

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

STATUTES 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 decision below

and in Mays v. Cook ................................. 9

E. Additional cases affected ....................... 13

ARGUMENT ............................................................. 13

I.

The Sixth Circuit’s decision to apply a

presumption

against

federal-officer

removal conflicts with decisions of this

Court and those of other circuits ................. 14

II. The Sixth Circuit’s decision is the cause

of a second circuit conflict regarding the

appropriateness of federal-officer removal

when it is alleged that a state official

performed duties that a federal agency

would otherwise have to perform................. 20

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 ............... 23

CONCLUSION .......................................................... 26

PETITION APPENDIX TABLE OF CONTENTS .... ia

v

PETITION APPENDIX TABLE OF CONTENTS

United States Court of Appeals for the

Sixth Circuit,

Opinion in 17-1401,

Issued April 16, 2018 .......................................... 1a–8a

United States District Court for the

Western District of Michigan,

Opinion Regarding Jurisdiction,

Issued March 31, 2017 ...................................... 9a–24a

vi

TABLE OF AUTHORITIES

Page(s)

Cases

Akin v. Ashland Chem. Co.,

156 F.3d 1030 (10th Cir. 1998) ............................ 24

Arizona v. Manypenny,

451 U.S. 232 (1981) .................................. 14, 15, 20

Bradford v. Harding,

284 F.2d 307 (2d Cir. 1960............................. 15, 24

Brown v. Snyder,

E.D. Mich. No. 18-cv-10699 ........................... 13, 24

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

845 F.3d 1135 (11th Cir. 2017) ...................... 17, 22

Colorado v. Symes,

286 U.S. 510 (1932) ........................................ 14, 20

Durham v. Lockheed Martin Corp.,

445 F.3d 1247 (9th Cir. 2006) .................. 15, 16, 24

Eastman v. Marine Mech. Corp.,

438 F.3d 544 (6th Cir. 2006) .................... 10, 11, 14

Ely Valley Mines, Inc. v. Hartford

Accident & Indem. Co.,

644 F.2d 1310 (9th Cir. 1981) .............................. 24

Fowler v. Southern Bell Tel. & Tel. Co.,

343 F.2d 150 (5th Cir. 1965) ................................ 24

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

865 F.3d 1237 (9th Cir. 2017) .............................. 17

Harnden v. Jayco, Inc.,

496 F.3d 579 (6th Cir. 2007) .................... 10, 11, 14

vii

TABLE OF AUTHORITIES—Continued

Page(s)

In re Commonwealth’s Motion to Appoint

Counsel Against or Directed to

Defender Ass’n of Phila.,

790 F.3d 457 (3d Cir. 2015) ................................. 16

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

Tulane Educ. Fund,

500 U.S. 72 (1991) ................................................ 16

Jefferson County v. Acker,

527 U.S. 423 (1999) .............................................. 16

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

211 U.S. 149 (1908) .............................................. 16

Maryland v. Soper,

270 U.S. 9 (1926) .................................................. 14

Mays v. Cook,

871 F.3d 437 (6th Cir. 2017) ........................ passim

Ohio State Chiropractic Ass’n v. Humana

Health Plan Inc.,

647 F. App’x 619 (6th Cir. 2016).......................... 10

Papp v. Fore-Kast Sales Co.,

842 F.3d 805 (3d Cir. 2016) ........................... 16, 21

Pretlow v. Garrison,

420 F. App’x 798 (10th Cir. 2011)........................ 17

Ruppel v. CBS Corp.,

701 F.3d 1176 (7th Cir. 2012) ........................ 17, 22

Sawyer v. Foster Wheeler LLC,

860 F.3d 249 (4th Cir. 2017) .......................... 17, 18

Tennessee v. Davis,

100 U.S. 257 (1879) .............................................. 15

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Waid v. City of Flint,

E.D. Mich. No. 16-cv-13519 ........................... 13, 24

Watson v. Philip Morris Co.,

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

Williamson v. Tucker,

645 F.2d 404 (5th Cir. 1981) ................................ 12

Willingham v. Morgan,

395 U.S. 402 (1969) .................................. 14, 15, 20

Winters v. Diamond Shamrock Chem. Co.,

149 F.3d 387 (5th Cir. 1998) .......................... 20, 21

Zeringue v. Crane Co.,

846 F.2d 785 (5th Cir. 2017) .................... 17, 18, 21

Statutes

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

28 U.S.C. § 1441 ............................................ 11, 14, 24

28 U.S.C. § 1442 ................................................ passim

28 U.S.C. § 1446 ........................................................ 24

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 ...................................................................... 16

Michigan Safe Drinking Water Act, Act

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

ix

TABLE OF AUTHORITIES—Continued

Page(s)

Removal Clarification Act of 2011,

Pub. L. No. 112-51, 125 Stat. 545 ........................ 17

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–8a, is not

reported but is available at 2018 WL 1791909. The

opinion of the United States District Court for the

Western District of Michigan, App. 9a–24a, is not

reported but is available at 2017 WL 1190549. The

controlling Sixth Circuit decision in Mays v. Cook is

available at 871 F.3d 437.

JURISDICTION

The judgment of the court of appeals was entered

on April 16, 2018. App. 1a. This Court has jurisdiction under 28 U.S.C. § 1254(1).

2

STATUTES 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 two questions of recurring

importance related to the standard that applies

when district courts evaluate a notice of removal

based on federal-officer status under 28 U.S.C.

§ 1442. In rejecting Petitioners’ removal here, the

Sixth Circuit panel followed its precedent in Mays v.

Cook, 871 F.3d 437 (6th Cir. 2017), and (1) did not

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 Mays dissent explained, the

Sixth Circuit’s rule conflicts with previous decisions

of this Court and those of six (actually seven) other

circuits. This Court’s review is necessary to maintain

consistency among the lower courts.

The Sixth Circuit panel majority’s opinion 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

itself conflicts with four other circuits.

The need for this Court’s immediate intervention

is stark. The Sixth Circuit’s erroneous removal

jurisprudence is being applied in numerous other

cases where state personnel acted at the direction of

federal agencies. And whereas the Mays case had a

vehicle defect that likely prevented this Court’s

review (the district courts alternatively had jurisdiction under the Class Action Fairness Act), this petition does not. Accordingly, 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 allegedly resulted in drinking water

becoming inadvertently 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.”2

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

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

2

5

The SDWA tasks the Administrator of the U.S.

Environmental Protection Agency with establishing

national drinking water regulations for public water

systems, which govern 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.3

To accomplish this massive federal objective,4 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 leadlevel standards; can audit state drinking water

programs and issue orders directing specific actions,

as necessary; and can withdraw a state’s primacy

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

4 The systems regulated by the EPA and delegated states and

tribes provide drinking water to 90% of Americans. See

https://goo.gl/U4V4Pc.

6

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 Sixth Circuit

recognized in Mays v. Cook, 871 F.3d 437 (6th Cir.

2017), the EPA funds the MDEQ’s activities in

enforcing the SDWA, id. at 444, and if the MDEQ did

not enforce the SDWA, then the EPA would have to

step in and do so, id.

B. Proceedings and

notice of removal

allegations

in

Plaintiffs filed a class-action lawsuit in the

Michigan Court of Claims on March 23, 2016,

asserting a single substantive count of gross

negligence and/or negligence against all Defendants.

App. 9a. On May 31, 2016, Petitioner Stephen Busch

filed a Notice of Removal alleging that, among other

things, removal was proper under 28 U.S.C.

§ 1442(a)(1), the federal-officer removal statute. Id.

The other Petitioners consented and joined in

Busch’s removal, as the same bases for federal

jurisdiction was applicable to each one of them.

Busch alleged that as an MDEQ employee, he

was being sued for purported negligence or gross

negligence in his 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 EPA’s Lead and

7

Copper Rule (LCR). Notice of Removal, RE 1, ¶ 4,

PgID 2. More specifically, Busch alleged:

•

That his authority to regulate Michigan’s

public drinking water systems derived from

the SDWA, LCR, and other EPA regulations,

and his actual regulation occurred under the

EPA’s direction, control, and close supervision. Notice of Removal, RE 1, ¶ 14, PgID 4.

•

That he is being sued for allegedly failing to

adhere to federal law, due to his 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 under the EPA’s direction and

control. Id. ¶ 27, PgID 7–8.

•

That Plaintiffs’ Complaint contains allegations that Busch owed duties to Plaintiffs

based on the SDWA and LCR standards, the

breach of which gave rise to Plaintiffs’ causes

of action. Id. ¶ 38, PgID 10.

•

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

and effect of the SDWA and the LCR. If

Busch establishes that these federal laws

and regulations were not violated, Plaintiffs’

claims against him fail. Id. ¶ 39, PgID 11–12.

•

That Busch is being sued for carrying out the

EPA’s duty, as delegated to the MDEQ, to

enforce the SDWA and LCR and ensure that

public water systems such as Flint’s comply

with the SDWA and LCR. Id. ¶ 40, PgID 11.

8

•

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.

¶ 20, PgID 5.

•

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. ¶ 29,

PgID 8.

•

And that Busch was the EPA’s agent, acting

under the EPA’s direction and control to

assist with implementing and enforcing the

federal SDWA and LCR. Furthermore,

Busch’s 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. ¶ 30, PgID 8.

If all of the allegations in the Notice of Removal

are accepted as true, there is no real question that

Busch and the other Petitioners who joined in his

Notice of Removal have invoked federal jurisdiction

as federal officers under § 1442.

9

C. The district court’s decision

The district court received supplemental

authority regarding a remand decision of the United

States District Court for the Eastern District of

Michigan in Mays v. City of Flint, No. 5:15-cv-11519JCO-MKM, and based on that opinion questioned

jurisdiction over this case. App. 3a. In Mays the

District Court for the Eastern District of Michigan

remanded a nearly identical case that had also been

removed by MDEQ Defendants. Id. The district court

believed that Mays was correctly decided, App. 19a,

and it declined to accept the allegations in the Notice

of Removal as true. The district court said that

Busch and the other MDEQ Defendants “were not

‘acting under’ the EPA at all.” App. 21a. “Such

remains true notwithstanding that the MDEQ

Defendants consulted and interacted extensively

with the EPA when water quality issues arose after

the switch to the Flint River.” Id.

D. The Sixth Circuit’s decision below

and in Mays v. Cook

Petitioners appealed. While the case was

pending, the Sixth Circuit affirmed the decision in

Mays 2-1, with the majority and dissent reaching

diametrically opposed conclusions about the legal

standard to apply when evaluating the propriety of

federal-officer removal. Because the reasoning and

holding in Mays ultimately dictated the outcome for

the Sixth Circuit panel in the present case,

Petitioners will begin with a more detailed

explanation of what transpired in Mays.

The Mays panel majority began with the rule

that “removal statutes are to be strictly construed,

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

10

871 F.3d at 442 (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 v. Philip

Morris Cos., 551 U.S. 142 (2007), 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.” 871 F.3d at 444. 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. Id. at 444–45. And, like the district

court, the majority found dispositive the lack of any

contract with the federal government. Id. at 445–46

(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

federal-officer removal”).

The Mays panel 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 this instance. Id. at 448. The

majority so concluded despite allegations that the

11

MDEQ Defendants’ enforcement of the SDWA and

LCR was the crux of the case, including that, per the

EPA, the LCR was ambiguous as applied to Flint’s

primary water source switch. Mays Notice of

Removal, RE 1, ¶¶ 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.” 871 F.3d at 450 (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. Id. at 454–55. “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.”

Id. at 454. 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).

The Mays MDEQ Defendants, Judge McKeague

noted, contended 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.” Id. at 454. Thus, the court should assume

jurisdiction unless the alleged basis for jurisdiction is

12

“clearly immaterial or insubstantial.” Id. at 455

(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.” Id. at

453. Judge McKeague would have reversed the

district court and remanded for proceedings on the

merits in the district court. Id. at 455.

The Sixth Circuit’s decision in the present case

was dictated entirely by Mays. After quoting § 1442

and summarizing the MDEQ Defendants’ removal

arguments, the panel simply noted that Mays was

controlling and “legally indistinguishable.” App. 6a.

Accordingly, the Sixth Circuit affirmed the district

court’s order remanding the case to state court. Id.

Notably, the defendants in Mays also filed a

petition for certiorari, asking this Court to resolve

the circuit split regarding the proper standard to

apply when analyzing a federal-officer removal. Cook

v. Mays, No. 17-1144. But this Court denied the

petition, presumably because Mays was a bad

vehicle: the case remained in federal court notwithstanding the federal-officer ruling because of removal

under the Class Action Fairness Act.

13

E. Additional cases affected

This Court’s decision on the petition will affect

other pending cases. Bound by the Sixth Circuit’s

decision in Mays, Michigan federal district courts

have applied (or will soon apply) the same upsidedown

officer-removal

standards

that

Mays

established in Waid v. City of Flint, E.D. Mich. No.

16-cv-13519 and Brown v. Snyder, E.D. Mich.

No. 18-cv-10699. In sum, the panel’s published opinion immediately impacts federal jurisdiction across a

swath of cases and will have a deleterious effect on

federal contractors, state agency personnel, and

other agents of the federal government moving

forward.

ARGUMENT

In rejecting the identical notice of removal in

Mays, 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 against removal rather than

in favor of it. The second is that it is insufficient for

purposes of invoking federal-officer removal

jurisdiction to allege that a non-federal defendant

performed tasks that a federal agency would

otherwise have had to perform. This Court should

grant the petition and resolve both conflicts.

14

I.

The Sixth Circuit’s decision to apply a

presumption against federal-officer removal conflicts with decisions of this Court and

those of other circuits.

As explained at length in Judge McKeague’s dissent in Mays, the Sixth Circuit starts with the wrong

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

strictly construed, and ‘all doubts should be resolved

against removal.’” Mays, 871 F.3d at 442 (quoting

Harnden and citing Eastman). That is the standard

for traditional removal under 28 U.S.C. § 1441. The

Sixth Circuit’s adoption of that standard in the

context of federal-officer 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.

15

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.

16

“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

also 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, Tenth, and

Eleventh Circuits are all in accord with the Ninth

and in conflict with the Sixth. 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

17

(3d Cir. 2015)); Sawyer v. Foster Wheeler 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); Pretlow v. Garrison,

420 F. App’x 798, 800 (10th Cir. 2011) (following

Durham); 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 in Mays 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 associ-

18

ation between the act in question and the federal

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

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 in Mays, applying

the correct standard was dispositive there. 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.” 871 F.3d at 453

(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

19

myriad actions to assist the EPA, evidences

the EPA’s supervision and control. [Id.]

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.” Id. at 454. That is enough to establish

federal jurisdiction. Id.

Judge McKeague’s reasoning in Mays applies

equally in this case. Indeed, Busch’s Notice of

Removal here, which was joined by the other

Petitioners, is essentially identical in all material

respects to the one the MDEQ Defendants filed in

Mays. Compare RE 1, Notice of Removal, with Mays

v. Cook, E.D. Mich. No. 16-11519, RE 1, Notice of

Removal. And all the regulatory truths that the

Mays panel majority recognized about the EPA, the

SDWA, and the MDEQ, are equally true here.

Accordingly, this Court should grant the petition

and reverse. The Sixth Circuit’s published opinion in

Mays—which bound the panel below and dictated

entirely the outcome—conflicts directly with

decisions of this Court and leaves the Sixth Circuit

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.

20

II. The Sixth Circuit’s decision is the cause of a

second circuit conflict regarding the

appropriateness of federal-officer removal

when it is alleged that a state official

performed duties that a federal agency

would otherwise have to perform.

The Sixth Circuit’s Mays decision also created 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.

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. This

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.

21

Other 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.” Papp, 842

F.3d at 812. 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 complained-of conduct was done at the

specific behest of the federal officer or agency. Id. at

813.

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.

22

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 in Mays interpreted Watson

very differently. Rather than apply Watson’s plain

language, the Sixth Circuit said that “Watson did not

formulate a clear test for when the acting-under

requirement is satisfied.” 871 F.3d at 444. In response to the Mays MDEQ Defendants 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 supporting removal,” but not

dispositive. Id. The panel majority read Watson “as

requiring more,” namely evidence of a specific

“delegation of legal authority” or a contract. Id.

Regardless 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.

Again, the proper analysis is 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.

23

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

federal forum to determine local controversies

stemming from tasks undertaken on behalf of the

federal government that its agencies and personnel

would otherwise have to perform.

This case is also a perfect vehicle to fix the rift in

circuit authority that the panel majority’s decision

created. The two issues presented are clearly framed

by the Sixth Circuit’s precedent, 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. Moreover, unlike

Mays, where federal jurisdiction was eventually

sustained under the Class Action Fairness Act, there

is no alternative basis for federal jurisdiction in the

24

present case.5 If the petition is denied, Petitioners

lose their right to a federal forum and the Sixth

Circuit’s errors will be perpetuated.

As noted above, additional affected cases arising

from Flint’s water switch include Waid v. City of

Flint, E.D. Mich. No. 16-cv-13519, and Brown v.

Snyder, E.D. Mich. No. 18-cv-10699. These cases

will, like the present case, be bound by the Sixth

Circuit’s published decision in Mays.

In sum, the Sixth Circuit’s new federal-officer

removal rules impact federal jurisdiction in other

pending cases and have a drastic and deleterious

effect on federal contractors, state agency personnel,

and other agents of the federal government. As a

result, the rule negatively impacts the federal

government, too: “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.

Petitioners also sought to remove by establishing federal

jurisdiction under 28 U.S.C. § 1441(a). The Sixth Circuit

rejected that argument on the merits, App. 7a–8a, and for lack

of unanimity, App. 8a n.2. Petitioners do not seek this Court’s

review of the § 1441 ruling, and the lack of unanimity applies

only to the § 1441 analysis, not to federal-officer removal under

§ 1442. E.g., Akin v. Ashland Chem. Co., 156 F.3d 1030, 1034

(10th Cir. 1998); Ely Valley Mines, Inc. v. Hartford Accident &

Indem. Co., 644 F.2d 1310, 1315 (9th Cir. 1981); Fowler v.

Southern Bell Tel. & Tel. Co., 343 F.2d 150, 152 (5th Cir. 1965);

Bradford v. Harding, 248 F.2d 307, 310 (2d Cir. 1960). Accord

28 U.S.C. § 1446(b)(2)(A) (rule of unanimity applies “solely

under § 1441(a)”).

5

25

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 decision below

and adoption of Judge McKeague’s dissent in Mays.

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.

26

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,

Busch, Prysby, Shekter Smith,

Wurfel & Wyant

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 & Prysby

27

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 & Wyant

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

JULY 2018

PHILIP A. GRASHOFF, JR.

DENNIS K. EGAN

KRISTA A. JACKSON

KOTZ SANGSTER WYSOCKI

36700 Woodward Ave.

Suite 300

Bloomfield Hills, MI 48304

(248) 646-2073

pgrashoff@kotzsangster.com

Counsel for Petitioner

Busch