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Mays v. City of Flint

United States Court of Appeals, Sixth Circuit

September 11, 2017

Melissa Mays; Michael Mays; Jacqueline Pemberton; Keith John Pemberton; Elnora Carthan; Rhonda Kelso, Plaintiffs-Appellees,
v.
City of Flint, Mich., et al., Defendants, Patrick Cook; Adam Rosenthal; Michael Prysby; Stephen Busch; Liane Shekter Smith; Bradley Wurfel, Defendants-Appellants.

          Argued: August 2, 2017

         Appeal from the United States District Court for the Eastern District of Michigan at Ann Arbor. No. 5:16-cv-11519-John Corbett O'Meara, District Judge.

         ARGUED:

          Charles E. Barbieri, FOSTER, SWIFT, COLLINS & SMITH, P.C., Lansing, Michigan, for Appellants.

          William H. Goodman, GOODMAN & HURWITZ, P.C., Detroit, Michigan, for Appellees.

         ON BRIEF:

          Charles E. Barbieri, Allison M. Collins, FOSTER, SWIFT, COLLINS & SMITH, P.C., Lansing, Michigan, Thaddeus E. Morgan, FRASER, TREBILCOCK, DAVIS & DUNLAP, Lansing, Michigan, Jay M. Berger, Michael J. Pattwell, CLARK HILL PLC, Lansing, Michigan, Philip A. Grashoff, Jr., KOTZ SANGSTER WYSOCKI, P.C., Bloomfield Hills, Michigan, for Appellants.

          Beth M. Rivers, Michael L. Pitt, Cary S. McGehee, PITT MCGEHEE PALMER & RIVERS, PC, Royal Oak, Michigan, for Appellees.

          Before: SUHRHEINRICH, GILMAN, and McKEAGUE, Circuit Judges.

          OPINION

          RONALD LEE GILMAN, Circuit Judge.

          This case arises out of the drinking-water crisis in Flint, Michigan. The Plaintiffs are residents of the City of Flint who represent themselves and seek to represent a class of similarly situated individuals. They allege that they have been harmed since April 2014 by the toxic condition of the Flint water supply. The Plaintiffs filed suit against several City and State officials in the Genesee County Circuit Court, asserting various state-law tort claims.

         Complete diversity of citizenship is lacking, and no federal question is presented on the face of the complaint. Nevertheless, four of the State officials who are present or former employees of the Michigan Department of Environmental Quality (the MDEQ Defendants) removed the action from the state court to federal court on two grounds. They first invoked the "federal-officer removal" provision under 28 U.S.C. § 1442(a)(1), contending that all of their conduct in question was performed under the supervision and direction of the United States Environmental Protection Agency (the EPA). Second, the MDEQ Defendants contend that the Plaintiffs' claims necessarily implicate a substantial federal issue that merits federal-question jurisdiction under 28 U.S.C. § 1441.

         The Plaintiffs objected to removal. They filed a motion seeking to have the district court remand the case back to the state court, which the district court granted. On appeal, the MDEQ Defendants ask us to reverse the remand order. For the reasons set forth below, we instead AFFIRM the judgment of the district court.

          I. BACKGROUND

         A. Factual background

         Prior to April 2014, Flint had obtained its drinking water under contract with the City of Detroit. That month Flint switched its source of drinking water to the Flint River in order to save money.

         In January 2016, several of the Plaintiffs filed a class-action lawsuit in the Genesee County Circuit Court. The complaint alleged state-law claims of gross negligence, fraud, assault and battery, and intentional infliction of emotional distress. According to the complaint, the MDEQ Defendants committed these tortious actions by allowing Flint to switch its water supply without using an anti-corrosive agent, despite knowledge that the water was "highly corrosive and unsafe." This knowledge allegedly came from a 2011 report commissioned by the City of Flint, which concluded that the Flint River water could not be safely used for drinking unless it was treated with an anti-corrosive agent. Such an agent would be necessary to prevent lead and other chemicals from leaching into the water. The MDEQ received a copy of this report in 2013. But the MDEQ Defendants nevertheless allegedly failed to introduce corrosion-control treatments in a timely manner.

         Just days after the switch in the water supply, the Plaintiffs allege that the City of Flint began receiving complaints "that the water was cloudy and discolored in appearance and foul in taste and odor." Water users also began reporting physical symptoms that included hair loss, rashes, and vomiting within weeks of the switch. Similar complaints were continually made to both the City of Flint and MDEQ officials for the next eight months. Numerous children in Flint were found to have elevated blood-lead levels by late 2014, and the MDEQ Defendants allegedly knew of this problem by early 2015. But the MDEQ Defendants, according to the Plaintiffs, did not reveal this problem to the public until after an August 2015 report was publicly disclosed.

         The complaint further contends that the MDEQ Defendants deliberately ignored evidence that the water was unsafe and "falsely reassure[d] [the public] and insist[ed] that the water was safe even though they knew that the foul taste, odor and appearance was attributable to the highly corrosive Flint River water, untreated with the proper anti-corrosive agents." It also alleges, among other things, that the MDEQ Defendants refused an opportunity to reconnect with Detroit's safe drinking-water supply, falsely told the EPA in February 2015 that the Flint River water was receiving corrosion-control treatments, failed to maintain proper records needed to identify which water users had lead pipes, and failed to carry out proper water-quality tests.

         In October 2015, the Governor of Michigan ordered Flint to reconnect with the Detroit water system. The Plaintiffs allege that, even after the reconnection, the MDEQ Defendants were grossly negligent in failing to properly monitor water quality and to protect residents from exposure when they knew that the water remained unsafe.

         B. Procedural background

         In April 2016, the MDEQ Defendants filed a notice of removal in the United States District Court for the Eastern District of Michigan. The MDEQ Defendants sought removal under two statutory provisions: (1) 28 U.S.C. § 1442, the federal-officer removal statute, and (2) 28 U.S.C. § 1441, which allows removal for state-law causes of action that raise substantial federal questions.

         According to the notice of removal, federal-officer removal is appropriate because the MDEQ Defendants are being sued for actions that they took while acting under the direction of the EPA. The MDEQ Defendants assert that they were acting under the EPA because the EPA delegated primary enforcement authority to the MDEQ to implement the federal Safe Drinking Water Act (SDWA) in Michigan. Among the SDWA's requirements is the submission to the EPA of quarterly and annual reports detailing the MDEQ's compliance with the EPA's Lead and Copper Rule (LCR). See 40 C.F.R. § 142.15. Under this primary enforcement scheme, the MDEQ Defendants contend that the EPA retains "tremendous oversight authority" over the MDEQ, including the ability to intervene or to withdraw primary enforcement authority in the event that the State fails to meet regulatory requirements.

         The MDEQ Defendants also assert that they are being sued for actions that were "guided by repeated written and verbal dialogue with a number of EPA officers who advised and oversaw" the MDEQ's regulation of the Flint water system. According to the notice of removal, the fact that the MDEQ Defendants were "acting under" the EPA "is most clearly demonstrated by" an emergency order that the EPA issued on January 21, 2016. The emergency order stated that the MDEQ and the City of Flint had failed to adequately respond to the drinking-water crisis, and it directed the MDEQ to take certain actions deemed necessary by the EPA. In addition, the EPA announced that it would begin conducting its own water-quality tests in the City of Flint and publishing the results on its website.

         To support their alternative ground for removal, the MDEQ Defendants assert that the Plaintiffs' claims will raise a substantial federal question: whether the MDEQ Defendants complied with the SDWA and the LCR. The MDEQ Defendants argue that the applicability of the SDWA and the LCR to the present case is ambiguous and that a need for uniform interpretation of those laws is a substantial federal interest supporting removal.

         In response to the MDEQ Defendants' notice of removal, the Plaintiffs filed a motion to remand the case back to the Genesee County Circuit Court. The district court granted the Plaintiffs' motion and remanded the case. This timely appeal of the remand order is authorized by 28 U.S.C. § 1447(d) because the MDEQ Defendants removed the case under 28 U.S.C. § 1442. Our jurisdiction to review the remand order also encompasses review of the district court's decision on the alternative ground for removal under 28 U.S.C. § 1441. See Lu Johnhong v. Boeing Co., 792 F.3d 805, 811-13 (7th Cir. 2015).

         II. ANALYSIS

         A. Standard of review

         We review de novo the district court's determination that it lacked subject-matter jurisdiction and its consequent decision to issue a remand order. Smith v. Nationwide Prop. & Cas. Ins. Co., 505 F.3d 401, 404 (6th Cir. 2007). As the party seeking removal, the MDEQ Defendants bear the burden of establishing federal court jurisdiction. Eastman v. Marine Mech. Corp., 438 F.3d 544, 549 (6th Cir. 2006). Where, as here, the district court treats the motion to remand as a facial attack on the court's jurisdiction, we look only to the pleadings-the complaint and the notice of removal-for the relevant facts. Gentek Bldg. Prods., Inc. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007). This includes the consideration of exhibits attached to the pleadings "so long as they are referred to in the [pleadings] and central to the claims contained therein." Rondigo, L.L.C. v. Twp. of Richmond, 641 F.3d 673, 680-81 (6th Cir. 2011) (quoting Bassett v. Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (2008)). As this court has previously stated, removal statutes are to be strictly construed, and "all doubts should be resolved against removal." Harnden v. Jayco, Inc., 496 F.3d 579, 581 (6th Cir. 2007); see also Eastman, 438 F.3d at 550.

         B. Removal by the MDEQ Defendants under the federal-officer removal statute was properly denied.

         The federal-officer removal statute allows removal of actions against "[t]he 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." 28 U.S.C. § 1442(a)(1) (emphasis added). Persons like the MDEQ Defendants, who are not federal officers, must satisfy three requirements in order to invoke the federal-officer removal statute: (1) the defendants must establish that they acted under a federal officer, (2) those actions must have been performed under color of federal office, and (3) the defendants must raise a colorable federal defense. Bennett v. MIS Corp., 607 F.3d 1076, 1085 (6th Cir. 2010).

         1. History of the federal-officer removal statute

         The Supreme Court discussed the federal-officer removal statute most recently in Watson v. Philip Morris Cos., 551 U.S. 142 (2007). A discussion of the history of the federal-officer removal statute begins the Court's analysis. The Court noted that Congress enacted the original federal-officer removal statute during the War of 1812. Id. at 147. That war was especially unpopular in New England, where many state court actions had been filed against federal customs officials whose duties included enforcing a trade embargo on England. Id. The Court explained that the "initial removal statute was 'obviously . . . an attempt to protect federal officers from interference by hostile state courts.'" Id. at 148 (quoting Willingham v. Morgan, 395 U.S. 402, 405 (1969)).

         Originally, the federal-officer removal statute covered only federal customs officials and "any other person aiding or assisting" those officials. Id. (emphasis removed) (quoting Customs Act of 1815, ch. 31, s 8, 3 Stat. 198). Over time, Congress gradually expanded the scope of the statute, first to include persons assisting federal revenue officials, and later to include all federal officials and persons acting under them. Id. at 148-49. But as the Court noted in Watson, these changes simply provided that more types of federal officials could take advantage of removal, with no indication that Congress intended to expand the scope of the words "acting under." Id. at 149.

         Early uses of the somewhat broadened version of the federal-officer removal statute involved cases where people were killed when federal officers raided illegal distilleries. Id. at 149-50. When murder charges were brought against the federal officers in state court, the federal officers were allowed to remove the cases to federal court. Id. In one of those cases, the Supreme Court reasoned that a private person acting as a chauffeur to the federal officers "had 'the same right to the benefit of the removal provision as did the federal ...


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