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

ia

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

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NOT RECOMMENDED FOR PUBLICATION

File Name: 18a0197n.06

No. 17-1401

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

TAMARA NAPPIER, as

mother and next friend

of T.N., a minor child, on

behalf of T.N. and a class

of all others similarly

situated,

)

)

)

)

)

)

)

Plaintiff-Appellee,

)

v.

)

RICHARD SNYDER, et

)

al.,

)

)

Defendants-Appellees,

DANIEL WYANT, et al., )

)

Defendants-Appellants. )

FILED Apr 16, 2018

DEBORAH S. HUNT,

Clerk

ON APPEAL FROM

THE UNITED

STATES DISTRICT

COURT FOR THE

WESTERN DISTRICT

OF MICHIGAN

BEFORE: CLAY, COOK and WHITE, Circuit

Judges.

HELENE N. WHITE, Circuit Judge.

Defendants-Appellants Stephen Busch, Patrick

Cook, Michael Prysby, Liane Shekter Smith, Bradley

Wurfel and Daniel Wyant, employees of the Michigan Department of Environmental Quality, (“MDEQ

Defendants”) appeal the district court’s order

remanding this case to the Michigan Court of Claims

on the basis that it was improperly removed. Finding

this court’s prior decision in Mays v. City of Flint,

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Michigan, 871 F.3d 437 (6th Cir. 2017) controlling,

we AFFIRM.

I. Background

This case arises from the water crisis in Flint,

Michigan. Plaintiff Nappier and minor T.N.

(“Plaintiff”) are residents of Flint. Seeking to

represent a class

of all individuals who, from April 25, 2014

through the date of trial, are or were minor

children (age 17 years and younger) who are

or were residing in the City of Flint,

Michigan and who have been brain damaged

as a result of the ingestion of lead poisoned

water from pipes and service lines that

supplied water from the Flint River without

the use of any corrosion control,

(R. 1-3, PID 45; see also id. at PID 55-57), plaintiff

filed her class-action complaint in the Michigan

Court of Claims on March 23, 2016, alleging that

Defendants breached various duties relating to the

Flint water supply.

There are numerous defendants, including various state officials, department heads and program

heads, emergency managers, and the appellant

MDEQ employees. On May 31, MDEQ Defendant

Busch removed the case to the U.S. District Court for

the Western District of Michigan, asserting federal

subject-matter jurisdiction under the federal-officer

removal statute, 28 U.S.C. § 1442, and federalquestion jurisdiction under 28 U.S.C. § 1441. On

June 14, 2016, several other defendants (State

Defendants) filed a motion to remand, advancing

arguments that are no longer relevant. During the

remainder of 2016, various defendants filed a variety

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of motions, including motions to dismiss and a

motion to change venue.

After the district court scheduled oral argument

on State Defendants’ motion to remand, it was provided with supplemental authority calling its attention to the decision of the U.S. District Court for the

Eastern District of Michigan in Mays v. City of Flint,

No. 5:16-cv-11519-JCO-MKM (E.D. Mich. Oct. 6,

2016). The Plaintiffs in Mays, purporting to

represent “a class of thousands of Flint water users,”

sued numerous defendants, including MDEQ defendants, alleging “gross negligence, fraud, assault and

battery, and intentional infliction of emotional distress.” (R. 60-1 at PID 6737.) The MDEQ defendants

removed the case to federal court, invoking the same

bases for federal jurisdiction as invoked here. The

district court found that removal was improper

because the MDEQ defendants had not shown that

they were acting under federal officers or were being

sued for acts performed under color of federal office,

and because the plaintiffs’ claims did not raise a

federal question. The supplemental authority also

included this court’s order denying the Mays MDEQ

defendants’ motion for a stay of the district court’s

remand order pending appeal, for failure to show “a

strong likelihood of success on the merits.” (R. 60-2.)

The district court issued a memorandum and

order canceling the scheduled oral argument and

ordering further briefing on why the court should not

remand the case to state court for lack of subjectmatter jurisdiction in light of Mays. After reviewing

the supplemental briefs, the district court issued its

opinion finding that removal was improper and

remanding the case to state court. Citing Mays, the

district court found that MDEQ Defendants did not

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qualify for federal-officer removal because of their

“independent role as enforcer of Michigan law and

the [Safe Drinking Water Act (SDWA)].” (R. 75 at

PID 7399.) The district court also cited Mays in

support of its conclusion that Plaintiff’s state-law

negligence claim did not raise a federal question.

During the pendency of this appeal, a divided

panel of this court affirmed the district court’s

remand order in Mays, and this court denied

rehearing en banc.1

II. Discussion

“We review de novo the district court’s determination that it lacked subject-matter jurisdiction and

its consequent decision to issue a remand order.”

Mays, 871 F.3d at 442 (citing Smith v. Nationwide

Prop. & Cas. Ins. Co., 505 F.3d 401, 404 (6th Cir.

2007)).

A. Federal-Officer Removal

The federal-officer removal statute provides that

the following may remove a civil action to federal

district court:

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 or on account of any right, title or

1 On October 10, 2017, the MDEQ appellants in Mays filed a

petition for rehearing en banc. That petition was subsequently

denied and, on February 13, 2018, the MDEQ appellants filed a

petition for certiorari with the United States Supreme Court.

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authority claimed under any Act of Congress

for the apprehension or punishment of

criminals or the collection of the revenue.

28 U.S.C. § 1442(a)(1) (emphasis added). When the

removing party is not a federal officer, we apply a

three-part test to determine whether removal is

proper. The removing party must demonstrate that:

(1) it is a “person” within the meaning of the statute

who “acted under a federal officer”; (2) “it performed

the actions for which it is being sued under color of

federal office”; and (3) “it raised a colorable federal

defense.” Bennett v. MIS Corp., 607 F.3d 1076, 1085

(6th Cir. 2010) (alterations, quotations, and citations

omitted). The Supreme Court has defined “acting

under”:

In this context, the word “under” must refer

to what has been described as a relationship

that involves “acting in a certain capacity,

considered in relation to one holding a

superior position or office.” That relationship

typically involves “subjection, guidance, or

control.” In addition, precedent and statutory

purpose make clear that the private person’s

“acting under” must involve an effort to

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

of the federal superior.

Watson v. Philip Morris Companies, Inc., 551 U.S.

142, 151–52 (2007) (citations omitted).

MDEQ Defendants argue that (1) the district

court erroneously resolved doubts about the propriety of removal in favor of remand rather than in

favor of broad federal-officer removal; (2) although

they were implementing Michigan’s SDWA, they

were “acting under” federal officers at the United

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States Environmental Protection Agency (USEPA)

because (a) they were performing tasks that the

USEPA otherwise would have been required to

undertake, (b) the USEPA retained authority to

control MDEQ’s actions and MDEQ was subject to

USEPA supervision, and (c) the USEPA provided

federal funding for MDEQ to administer and enforce

the federal SDWA; (3) Michigan’s SDWA and its

decision to take primary enforcement authority for

the federal SDWA, and the duties that Plaintiff

alleges MDEQ Defendants breached, only came

about because of the federal SDWA; (4) the district

court erred when it found that the USEPA was

merely assisting MDEQ to perform its duties, and

the reverse is true; (5) plaintiffs satisfied the “causal

nexus” requirement for federal-officer removal; and

(6) the SDWA preempts state tort claims and they

are therefore entitled to immunity.

In Mays, this court held that the relationship

between the MDEQ and the USEPA “is a model of

cooperative federalism, not an agency relationship,”

871 F.3d at 447, and “MDEQ Defendants were not

‘acting under’ the EPA and thus are not eligible for

federal-officer removal,” id. at 449. The MDEQ

Defendants do not argue that Mays is not controlling,

and it is clear that a ruling in the MDEQ Defendants’ favor would be contrary to Mays. “It is firmly

established that one panel of this court cannot

overturn a decision of another panel; only the court

sitting en banc can overturn such a decision.” United

States v. Lanier, 201 F.3d 842, 846 (6th Cir. 2000)

(citing United States v. Smith, 73 F.3d 1414, 1418

(6th Cir. 1996)). Because Mays is legally indistinguishable, we affirm the district court’s ruling that

federal-officer removal was improper.

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B. Federal-Question Jurisdiction

MDEQ Defendants also argue that they established federal-question jurisdiction. A case may be

removed to federal district court if the court would

have had original jurisdiction. 28 U.S.C. § 1441(a).

“The district courts shall have original jurisdiction of

all civil actions arising under the Constitution, laws,

or treaties of the United States.” Id. § 1331. In this

case, plaintiff did not allege any federal claims on the

face of her complaint. “[F]ederal jurisdiction over a

state law claim will lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial,

and (4) capable of resolution in federal court without

disrupting the federal-state balance approved by

Congress.” Gunn v. Minton, 568 U.S. 251, 258 (2013)

(discussing Grable & Sons Metal Prod., Inc. v. Darue

Eng’g & Mfg., 545 U.S. 308, 313-14 (2005)). “The

substantiality inquiry under Grable looks . . . to the

importance of the issue to the federal system as a

whole.” Id. at 260. “[T]he presence of a claimed

violation of a federal statute as an element of a state

cause of action is insufficiently ‘substantial’ to confer

federal-question jurisdiction.” Mays, 871 F.3d at 449

(internal alterations omitted) (quoting Merrell Dow

Pharm. Inc. v. Thompson, 478 U.S. 804, 814 (1986)).

MDEQ Defendants argue that the district court

erred by finding that Plaintiff’s “‘garden-variety’

state-law tort claim . . . does not raise a federal

question at the level of importance” required by

Grable, (R. 75, PID 7403), because violations of the

SDWA and the Lead Copper Rule will underpin state

tort claims in jurisdictions across the country. They

also assert that federal jurisdiction would not upset

the balance of federal and state responsibilities.

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But Mays resolved this issue as well, finding that

the plaintiffs’ claims did not raise a substantial federal question. 871 F.3d at 449–50. Again, because

Mays is legally indistinguishable on this issue, we

affirm the district court’s determination that § 1441

removal was improper.2

III. Conclusion

For these reasons, we AFFIRM.

2 Appellee State Defendants additionally argue that removal

was improper under § 1441 for lack of unanimity. “[T]here is a

rule of unanimity that has been derived from the statutory

language prescribing the procedure for removing a state action

to federal court, 28 U.S.C. § 1446.” Loftis v. United Parcel Serv.,

Inc., 342 F.3d 509, 516 (6th Cir. 2003). See 28 U.S.C.

§ 1446(b)(2)(A) (“When a civil action is removed solely under

section 1441(a), all defendants who have been properly joined

and served must join in or consent to the removal of the

action.”). MDEQ Defendants do not dispute that Appellee State

Defendants did not consent to removal. Thus, § 1441 removal

was additionally improper for lack of unanimity.

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UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

__________________________

TAMARA NAPPIER, as

mother and next fried of

T.N., a minor child, on

behalf of T.N. and a class of

all others similarly situated,

FILED MARCH 31,

2017

Case No. 1:16-CV-636

HON. GORDON J.

QUIST

Plaintiff,

v.

RICHARD SNYDER, et al.,

Defendants.

/

OPINION REGARDING JURISDICTION

Plaintiff filed this putative class action case in

the Michigan Court of Claims on March 23, 2016,

against Richard Snyder, Nick Lyon, Eden Wells,

Nancy Peeler, and Robert Scott (collectively the

State Defendants); Stephen Busch, Patrick Cook,

Michael Prysby, Liane Shekter Smith, and Bradley

Wurfel (collectively the MDEQ Defendants); and

Darnell Early and Gerald Ambrose. Plaintiff alleged

a single substantive count of gross negligence and/or

negligence against all Defendants arising out of the

water crisis in Flint, Michigan.

On May 31, 2016, Defendant Busch removed the

case to this Court, alleging that removal was proper

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

§ 1442(a)(1), and, alternatively, under the substantial federal question doctrine arising from 28 U.S.C.

§ 1441. On February 17, 2017, the Court entered an

order cancelling oral argument on Defendants’

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motions to dismiss and directing the parties to

address the Court’s concerns regarding subject matter jurisdiction. Pursuant to the February 17, 2017,

Order, the MDEQ Defendants, Plaintiff, and the

State Defendants have filed responses. Having read

the parties’ responses, the Court concludes that the

MDEQ Defendants were not “acting under” any

federal officer or agency when they took the actions

set forth in the complaint, and thus were not entitled

to remove this case under the federal-officer removal

statute. In addition, the Court concludes that it does

not have jurisdiction under the substantial federal

question doctrine.1 Accordingly, the Court will

remand this case to the Michigan Court of Claims.

I. BACKGROUND2

In 2014, as a cost-saving measure, the City of

Flint switched its water source from the City of

Detroit water system to the Flint River. (ECF No. 1-3

at PageID.43.) In connection with the switch,

officials discontinued corrosion-control treatments

required by the Environmental Protection Agency’s

(EPA) Lead and Copper Rule (LCR) and added ferric

chloride, which increased the corrosivity of the Flint

River water, to reduce formation of trihalomethanes

from organic matter. (Id.)

Plaintiff, the mother and next friend of T.K., a

minor, alleges that Defendants knew that the water

1 Although the MDEQ Employee Defendants request oral argument, the Court concludes that oral argument will not assist

the Court in deciding the issue, which has been fully briefed by

the MDEQ Employee Defendants.

2 The following facts are taken from the complaint.

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pumped from the Flint River was toxic and not fit for

consumption, but nonetheless assured the public

that it was safe to drink. (Id.) Plaintiff further

alleges that, in spite of Defendants’ assurances, T.K.

experienced an elevated blood lead level and suffered

permanent brain damage as a result of drinking

water from the Flint River. (Id. at PageID.45.) Plaintiff alleges that Defendants were grossly negligent

and/or negligent in participating in, or facilitating,

the switch to Flint River water as the source of the

City of Flint’s water. Plaintiff seeks to represent a

class of all individuals who were minors, resided in

the City of Flint, and suffered brain damage as a

result of ingesting water supplied from the Flint

River. (Id. at PageID.41.)

The MDEQ Defendants are current and former

employees of the MDEQ who played a part in the

City of Flint’s change of water sources.

Defendant Shekter Smith was, until October 19,

2015, the Chief of the Office of Drinking Water and

Municipal Assistance for the MDEQ. Plaintiff alleges

that Shekter Smith “knowingly participated in,

approved of, and caused the decision to transition

Flint’s water source to a highly corrosive, inadequately studied and treated alternative,” and made

false statements that led to public consumption of

the contaminated water. (Id. at PageID.47, ¶ 38.)

Defendant Wyant was, until December 29, 2015,

the Director of the MDEQ. Plaintiff alleges that

Wyant “participated in, directed, and oversaw the

MDEQ’s repeated violations of federal water quality

laws, the failure to properly study and treat Flint

River water, and the MDEQ’s program of systemic

denial, lies, and attempts to discredit honest outsiders.” (Id., ¶ 39.) Plaintiff alleges that Defendant

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Wyant also made false statements that led to

continued public consumption of contaminated

water. (Id.)

Defendant Busch was and remains the District

Supervisor assigned to the Lansing District Office of

the MDEQ. Plaintiff alleges that Busch “participated

in MDEQ’s repeated violation of federal water quality laws, the failure to properly study and treat Flint

River water, and the MDEQ’s program of systemic

denial, lies, and attempts to discredit honest

outsiders.” (Id. at PageID.47–48, ¶ 40.)

Defendant Cook was and remains a Water Treatment Specialist assigned to the Lansing Community

Drinking Water Unit of the MDEQ. Cook is also the

manager of that unit and “participated in[,]

approved, and/or assented to the decision to allow

Flint’s water to be delivered to residents without

corrosion control or proper study and/or testing.” (Id.

at PageID.48, ¶ 41.)

Defendant Prysby was and remains an Engineer

assigned to MDEQ District 11 (Genesee County).

Prysby “participated in, approved, and/or assented to

the decision to switch to the water source, failed to

properly monitor and/or test the Flint River water,

and provid[ed] assurances . . . that the Flint River

water was safe when he knew or should have known

those statements to be untrue.” (Id., ¶ 42.)

Defendant Wurfel was, until December 29, 2015,

the MDEQ’s Director of Communications. Plaintiff

alleges that Wurfel was “the MDEQ’s principal

means of public deception, repeatedly denying the

increasingly obvious disaster as it unfolded.” (Id. at

PageID.49, ¶ 43.)

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II. REMOVAL BURDEN

MDEQ Defendant Busch removed the case to

this Court pursuant to the federal-officer removal

statute, 28 U.S.C. § 1442(a)(1), alleging that pursuant to the federal Safe Water Drinking Act (SDWA),

42 U.S.C. § 300f et seq. and the EPA’s LCR, the EPA

has delegated authority to the MDEQ to act on its

behalf and regulate public water drinking systems

and that Defendant Busch took the actions alleged

by Plaintiff in the course of fulfilling his duties

delegated by the EPA to the MDEQ. (ECF No. 1 at

PageID.4.) Defendant Busch alleged that he “was

standing in the shoes of the EPA and taking actions

which EPA would have otherwise been required to

take, and his alleged actions were taken pursuant to

EPA’s oversight and guidance.” (Id.) Defendant

Busch also alleged that this Court has jurisdiction

under 28 U.S.C. § 1441 because “Plaintiffs’ [sic]

claims are inextricably intertwined with the construction, interpretation, and effect of the SDWA and

the LCR.” (Id. at PageID.10.) The remaining MDEQ

Defendants join in Busch’s notice of removal.

As the removing parties, the MDEQ Defendants

have the burden of establishing this Court’s jurisdiction. Jerome-Duncan, Inc. v. Auto-By-Tel, LLC, 176

F.3d 904, 907 (6th Cir. 1999). Any doubts regarding

“the propriety of removal are resolved in favor of

remand.”3 Smith v. Nationwide Prop. & Cas. Ins.

3 Suggesting that the answer to the instant jurisdictional

question is obvious, the MDEQ Defendants state that “[i]t is

telling that Plaintiffs [sic] did not object to removal, given the

authority that MDEQ Defendants presented.” (ECF no. 72 at

PageID.6815.) But Plaintiff’s failure to object does not relieve

this Court of its obligation to examine its jurisdiction in this

[Footnote continued on next page]

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Co., 505 F.3d 401, 405 (6th Cir. 2007) (quoting

Jacada, Ltd. v. Int’l Mktg. Strategies, Inc., 401 F.3d

701, 704 (6th Cir. 2005) (internal quotation marks

omitted)).

III. DISCUSSION

A. Removal Under § 28 U.S.C. § 1442(a)(1)

The federal-officer removal statute provides as

follows:

(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 or on

account of any right, title or authority

claimed under any act of Congress for the

[Footnote continued from previous page]

case. See Kusens v. Pascal Co., 448 F.3d 349, 359 (6th Cir. 2006)

(“It is well-established that the federal courts are under an

independent obligation to examine their own jurisdiction.”).

Moreover, in her response, Plaintiff states that “she is not in a

position to opine regarding the MDEQ Defendants’ factual basis

for removal.” (ECF No. 73 at PageID.7387.) Thus, the Court

infers nothing from Plaintiff’s failure to object.

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apprehension or punishment of criminals

or the collection of the revenue.

28 U.S.C. § 1442(a)(1).

The purpose of the statute is to protect federal

officers from being subjected to legal proceedings in

hostile state courts based on the enforcement of

federal laws “by providing these federal officials with

an unbiased federal forum.” Brown & Williamson

Tobacco Corp. v. Wigand, 913 F. Supp. 530, 533–34

(W.D. Ky. 1996); see also N. Colo. Water Conservancy

Dist. v. Bd. Of Cnty. Comm’rs of the Cnty. of Grand,

482 F. Supp. 1115, 1117 (D. Colo. 1980) (“The

purpose of 28 U.S.C. § 1442(a)(1) is to protect federal

officers from state interference with the exercise of

federal authority.”). As the Supreme Court has

explained, the history of the federal-officer removal

statute is rooted in customs and revenue statutes

that met with fierce opposition from the States.

Willingham v. Morgan, 395 U.S. 402, 405, 89 S. Ct.

1813, 1815 (1969). The Willingham Court noted that

the first such removal provision was included in an

1815 customs statute aimed at “enforc[ing] an embargo on trade with England over the opposition of

the New Englant [sic] States, where the War of 1812

was quite unpopular.” Id. The removal provision

prevented States from interfering with enforcement

of the customs statute by allowing federal officers to

remove to federal court any civil or criminal proceeding against them based on “any act done ‘under

colour’ of the statute.” Id. Similar removal provisions

were included in Civil War-era revenue laws, and

Congress subsequently extended the protection to all

federal officers when it enacted the current provision

in 1948. Id. at 405–06, 89 S. Ct. at 1815.

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It is true, as the MDEQ Defendants note, that

the Supreme Court has observed that “[t]he federal

officer removal statute is not ‘narrow’ or ‘limited[,]’

. . . [and] [a]t the very least, it is broad enough to

cover all cases where federal officers can raise a

colorable defense arising out of their duty to enforce

federal law.” Id. at 406–07, 89 S. Ct. at 1816 (citation

omitted). But, Willingham cited Colorado v. Symes,

286 U.S. 510, 52 S. Ct. 635 (1932), for the quoted

proposition, which, the Sixth Circuit has observed,

considered a narrower removal statute that

“protected only those ‘acting under or by authority of’

federal officers who were themselves ‘acting by

authority of any revenue law of the United States.”

Ohio State Chiropractic Ass’n v. Humana Health

Plan, Inc., 647 F. App’x 619, 622 (6th Cir. 2016). The

Sixth Circuit further observed in Humana that “each

of the broad interpretations that Humana emphasizes traces to earlier versions of § 1442 that granted

the removal power only to individuals enforcing

federal customs and revenue laws.” Id. (citing,

among others, Arizona v. Manypenny, 451 U.S. 232,

101 S. Ct. 1657 (1981), and Willingham). Thus, the

court reasoned, “proper context” showed that the

liberal construction recognized in Symes was of

limited use in determining whether a private health

insurance contractor was entitled to remove under

§ 1442(a)(1). Id.4

4 Some courts have recognized a distinction in the application

of the removal statute depending on the status of the removing

party. Those courts note that while “federal officer jurisdiction

is read expansively in suits involving federal officials, it is read

narrowly where . . . only the liability of a private company purportedly acting at the direction of a federal officer is at issue.”

[Footnote continued on next page]

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Removing parties, such as the MDEQ Defendants, who are not federal officers must satisfy a

three-part test to establish proper removal under

§ 1442(a)(1). Bennett v. MIS Corp., 607 F.3d 1076,

1085 (6th Cir. 2010). First, the removing party must

show that “it is a ‘person’ within the meaning of the

statute who ‘act[ed] under [a federal] officer.’” Id.

(quoting § 1442(a)(1)). Second, the party “must

demonstrate that it performed the actions for which

it is being sued ‘under color of [federal] office[.]’” Id.

(quoting § 1442(a)(1)). Finally, the party must

“raise[] a colorable federal defense.” Id. (citing

Jefferson Cnty. v. Acker, 527 U.S. 423, 431, 119 S. Ct.

2069 (1999)).

The Supreme Court’s decision in Watson v. Philip

Morris Companies, Inc., 551 U.S. 142, 127 S. Ct.

2301 (2007), provides the most useful guide in determining the circumstances under which a non-federal

officer will be deemed to satisfy the “acting under” a

federal officer requirement. In Watson, the plaintiffs

sued the defendants, cigarette manufacturers, alleging that the defendants violated state laws prohibiting unfair and deceptive business practices by

advertising certain cigarette brands as “light,” when,

in fact, the manufacturers manipulated testing

results by designing cigarettes and using techniques

that caused the cigarettes to have lower levels of tar

and nicotine than the cigarettes actually sold to customers. Id. at 146, 127 S. Ct. at 2304. The defendants invoked the federal-officer removal statute to

[Footnote continued from previous page]

Mills v. Martin & Bayley, Inc., No. 05-888-GPM, 2007 WL

2789431, at *5 (S.D. Ill. Sept. 21, 2007) (internal quotation

marks omitted).

18a

remove, and both the district court and the Eighth

Circuit concluded that removal was proper because

the plaintiffs’ complaint attacked the defendants’ use

of the federal government’s method of testing

cigarettes. Id. The Court held that removal was

improper because the federal government’s heavy

regulation of the defendants’ product testing did not

satisfy the statute’s “acting under” requirement. Id.

at152–53, 127 S. Ct. at 2308.

Watson emphasized several important principles

that bear on whether a private person acted under a

federal officer. First, the “acting under” relationship

“typically involves subjection, guidance, or control,”

id. at 151, 127 S. Ct. at 2307, and “must involve an

effort to assist, or to help carry out, the duties or

tasks of the federal superior.” Id. at 152, 127 S. Ct. at

2307. Mere compliance with the law does not constitute “help or assistance necessary to bring a private

person within the scope of the statute.” Id. Second,

the fact that a company (or a State) is subject to, and

complies with, a federal order does not ordinarily

create the type of state-court “prejudice” at which the

removal statute is directed. Id. Finally, the fact that

an entity is “highly regulated . . . even if the regulation is highly detailed and even if the [entity’s] activities are highly supervised and monitored,” will not

provide a basis for removal under § 1442(a)(1). Id. at

153, 127 S. Ct. at 2308.

The MDEQ Defendants offer essentially three

bases to support their contention that they were

acting at the direction, and with the authorization, of

the EPA, such that they should be deemed to have

“acted under” the EPA. First, the MDEQ Defendants

note that after Flint’s water source was switched to

the Flint River and water quality issues arose, the

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EPA directed the MDEQ’s response and ultimately

issued an Emergency Administrative Order addressing the steps the MDEQ and the City of Flint were

required to take to protect the public health. Second,

the MDEQ Defendants argue that Plaintiff’s allegations regarding their involvement in the process of

switching the source of Flint’s water system to the

Flint River necessarily implicate the MDEQ Defendants’ administration, application, and enforcement

of the federal LCR, demonstrating that the MDEQ

Defendants acted on behalf of the EPA and not

simply as an instrumentality of the State. Finally,

they argue that, although their administration and

enforcement of the federal LCR was accomplished

through the Michigan Safe Drinking Water Act, they

acted at the direction, and on behalf of, the EPA, and

thus are actually being sued for actions that the EPA

would have taken in the absence of the EPA’s formal

delegation of authority to the MDEQ.

While this Court believes that Mays, et al v. City

of Flint, et al., No. 16-11519 (E.D. Mich. Oct. 6,

2016), correctly concluded that the MDEQ Defendants are not entitled to remove under § 1442(a)(1),

the analysis, in this Court’s judgment, begins and

ends with the State of Michigan’s (and by extension

the MDEQ’s) independent role as enforcer of

Michigan law and the SDWA.

Congress enacted the SDWA in 1974 ‘to ensure

that public water supply systems meet minimum national standards for the protection of public health.”

Nat’l Wildlife Fed’n v. EPA, 980 F.2d 765, 768 (D.C.

Cir. 1992). The SDWA provides that the EPA’s drinking water regulations “shall apply to each public

water system in each State.” 42 U.S.C. § 300g. The

SDWA also recognizes that the States may play an

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important part in administering and enforcing drinking water standards. See Nat. Res. Def. Council v.

EPA, 806 F. Supp. 275, 277 (D.D.C. 1992) (noting

that “it is clear from the plain language of the Safe

Drinking Water Act that the states play a critical

and independent role of implementation”). In fact, a

State may obtain “primary enforcement responsibility for public water systems” if the EPA determines

that the State meets certain requirements. 42 U.S.C.

§ 300g-2. To obtain such authority, a State must:

(1) adopt its own “drinking water regulations that

are no less stringent than the . . . [EPA’s] regulations,”; (2) adopt and implement adequate procedures to enforce such regulations; and (3) keep

records and make reports required by the EPA. 42

U.S.C. § 300g-2(a). See also 40 C.F.R. § 142.10

(setting forth the requirements for determination of

primary enforcement responsibility). Thus, while the

SDWA “is administered by the EPA[,] . . . [it]

establishes a joint federal-state system for assuring

compliance with national standards.” Manufactured

Hous. Inst. v. EPA, 467 F.3d 391, 401 (4th Cir. 2006);

see also United States v. Cnty. of Westchester, No. 13cv-5475 (NSR), 2014 WL 1759798, at *4 (S.D.N.Y.

Apr. 28, 2014) (stating that the SDWA “authorized

the EPA to establish Federal standards that would

be applicable to all public water systems and to

establish a joint Federal–State system for assuring

compliance with these standards and for protecting

underground sources of drinking water”); Nat. Res.

Def. Council, 806 F. Supp. at 277–78 (concluding that

the members of a Governors’ Forum on Environmental Management were not mere advisors to the EPA

because, under the SDWA, governors “act operationally as independent chief executives in partnership with the federal agency,” and a contrary

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conclusion “would ignore the responsibilities the

states maintain in complying with the [SDWA]”).

As the MDEQ Defendants concede, the Michigan

legislature passed its own Safe Drinking Water Act

in 1976, see M.C.L.A. § 325.1001, et seq., and the

MDEQ’s predecessor assumed primary enforcement

responsibility to administer and enforce the SDWA

in 1978. (ECF No. 72-2.) And, pursuant to Michigan’s

Safe Drinking Water Act, the MDEQ has “power and

control over public water supplies and suppliers of

water.” M.C.L.A. § 325.1003.

In light of the SDWA’s “joint federal-state

system” that, as here, assigns primary enforcement

responsibility to the States, the MDEQ Defendants

were not “acting under” the EPA at all, in the sense

of assisting or helping the EPA to perform its duties

or tasks. See Watson, 551 U.S. at 2307. Rather, it is

clear that at all times, the MDEQ Defendants were

acting for and on behalf of the MDEQ to fulfill its

own duties under the Michigan Safe Drinking Water

Act. Cf. N. Colo. Water Conservancy Dist., 482

F. Supp. at 1118 (concluding that the removing

parties were “not acting as federal entities or as

agents of the [EPA]” pursuant to the Clean Water

Act, but instead were acting as political subdivisions

of Colorado). 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. After all,

consultation and interaction are consistent with any

joint undertaking. Thus, if anything, this is not a

case of the MDEQ assisting the EPA to perform its

duties, but of EPA personnel assisting the MDEQ in

performing its duties.

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The EPA’s Emergency Administrative Order

issued on January 21, 2016, does not alter the analysis. The order itself confirms that, rather than acting

for the EPA, the MDEQ was “an instrumentality of

the State.” (ECF No. 1-7 at PageID.93.) Moreover,

even if the order directed MDEQ to follow or apply

the LCR or other regulations in a particular manner,

Watson says that compliance with federal law does

not constitute the type of “help or assistance”

required under § 1442(a)(1), and compliance with a

regulatory order is unlikely to “create a significant

risk of state-court ‘prejudice.’” 551 U.S. at 152, 127 S.

Ct. at 2307.

Accordingly, the MDEQ Defendants have not

shown that removal is proper under § 1442(a)(1).

B. Removal Under 28 U.S.C. § 1441

The MDEQ Defendants’ also argue that removal

was proper because Plaintiff’s state-law gross

negligence/negligence claim raises a substantial

federal question, namely construction and interpretation of the SDWA and the LCR. (ECF No. 1 at

PageID.10.) The substantial federal question doctrine applies “where the vindication of a right under

state law necessarily turn[s] on some construction of

federal law.” Franchise Tax Bd. v. Constr. Laborers

Vacation Trust, 463 U.S. 1, 9, 103 S. Ct. 2841, 2846

(1983). However, “[t]he mere presence of a federal

issue in a state law cause of action does not automatically confer federal question jurisdiction, either

originally or on removal.” Mikulski v. Centerior

Energy Corp., 501 F.3d 555, 565 (6th Cir. 2007) (en

banc). Application of the doctrine requires that:

“(1) the state-law claim must necessarily raise a

disputed federal issue; (2) the federal interest in the

issue must be substantial; and (3) the exercise of

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jurisdiction must not disturb any congressionally

approved balance of federal and state judicial responsibilities.” Id. (citing Grable & Sons Metal Prods.,

Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 314, 125 S.

Ct. 2363, 2368 (2005)). The Supreme Court has

emphasized that the substantial federal question

doctrine is limited to “a ‘special and small category’

of cases.” Gunn v. Minton, __ U.S. __ 133 S. Ct. 1059,

1064–65 (2013) (quoting Empire Healthchoice

Assurance, Inc. v. McVeigh, 547 U.S. 677, 701, 126 S.

Ct. 2121, 2137 (2006)).

In Grable & Sons Metal Products v. Darue

Engineering & Manufacturing, 545 U.S. 308, 125 S.

Ct. 2363 (2005), the plaintiff filed a quiet title action

in Michigan state court, alleging that the defendant’s

title to certain property was invalid. 545 U.S. at 311,

125 S. Ct. at 2366. Pursuant to a Michigan court

rule, the Plaintiff specifically alleged that its title

was superior to the defendant’s title because the

Internal Revenue Service failed to give adequate

notice, as required by a federal statute. Id. at 314–

15, 125 S. Ct. at 2368. The Court concluded that the

Defendant properly removed the case based on

federal question jurisdiction because whether the

plaintiff “was given notice within the meaning of the

federal statute [was] . . . an essential element of its

quiet title claim, and the meaning of the federal

statute [was] actually in dispute.” Id. at 315, 125

S. Ct. at 2368. In fact, the Court observed, because

the proper interpretation of the federal statute was

“the only legal or factual issue contested in the case,”

its meaning was “an important issue of federal law

that sensibly belongs in a federal court.” Id.

In contrast to Grable, the MDEQ Defendants

have not shown that Plaintiff’s state-law negligence-

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based claims implicate an important federal interest.

As the Court wrote in Gunn:

it is not enough that the federal issue be

significant to the particular parties in the

immediate suit; that will always be true

when the state claim necessarily raises a

disputed issue, as Grable separately requires.

The substantiality inquiry under Grable

looks instead to the importance of the issue

to the federal system as a whole.

133 S. Ct. at 1066 (internal quotation marks and

bracket omitted). In short, the state-law claim at

issue in this case is a “garden-variety” state-law tort

claim that does not raise a federal question at the

level of importance of that raised in Grable. See

Mikulski, 501 F.3d at 571; see also Mays, slip op. at

13.

IV. CONCLUSION

For the foregoing reasons, the Court will remand

this case to the Michigan Court of claims for lack of

jurisdiction.

An Order consistent with this Opinion will enter.

Dated: March 31, 2017

/s/ Gordon J. Quist

GORDON J. QUIST

UNITED STATES

DISTRICT JUDGE