Nappier v. Snyder et al

Filing 75

OPINION REGARDING JURISDICTION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

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,
Plaintiff,
Case No. 1:16-CV-636
v.
HON. GORDON J. QUIST
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’ 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 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.)

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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.

2

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 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.)

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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.)
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

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doubts regarding “the propriety of removal are resolved in favor of remand.”3 Smith v. Nationwide
Prop. & Cas. Ins. 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 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
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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 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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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.
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
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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
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 remove, and both the district court and the

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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.” Mills v. Martin & Bayley, Inc., No. 05-888-GPM, 2007 WL 2789431, at *5 (S.D. Ill.
Sept. 21, 2007) (internal quotation marks omitted).

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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 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
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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 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
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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. 13-cv-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 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
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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.
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 statecourt ‘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).
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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
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-based claims implicate an important federal interest. As the Court wrote in Gunn:

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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

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