Melissa Mays; Michael Mays; Jacqueline Pemberton; Keith John Pemberton; Elnora Carthan; Rhonda Kelso, Plaintiffs-Appellees,
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
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.
Charles E. Barbieri, FOSTER, SWIFT, COLLINS & SMITH,
P.C., Lansing, Michigan, for Appellants.
William H. Goodman, GOODMAN & HURWITZ, P.C., Detroit,
Michigan, for Appellees.
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.
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.
LEE GILMAN, Circuit Judge.
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.
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. §
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.
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
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.
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.
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.
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.
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.
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
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.
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
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).
Standard of review
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.
Removal by the MDEQ Defendants under the federal-officer
removal statute was properly denied.
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.
History of the federal-officer removal statute
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)).
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.
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 ...