Melissa Mays v. City of Flint, Mich.
871 F.3d 437
6th Cir.2017Background
- In Jan 2016 Flint residents sued Michigan Department of Environmental Quality (MDEQ) officials in state court alleging state-law torts arising from Flint’s 2014 switch to the Flint River and failures to use corrosion control, causing lead contamination and health harms.
- Four MDEQ defendants removed to federal court invoking (1) federal-officer removal, 28 U.S.C. § 1442(a)(1), claiming they acted under EPA supervision while implementing the Safe Drinking Water Act (SDWA) and the Lead and Copper Rule (LCR); and (2) federal-question removal under 28 U.S.C. § 1441, arguing Plaintiffs’ claims necessarily raise substantial federal issues.
- The notice of removal alleged: EPA delegated primacy to MDEQ under the SDWA, MDEQ submits reports to EPA, EPA retained oversight authority (including an emergency order issued Jan 21, 2016), and Plaintiffs’ tort claims are intertwined with compliance with SDWA/LCR.
- The district court granted Plaintiffs’ motion to remand; MDEQ appealed. The Sixth Circuit reviews de novo and construes removal statutes strictly, with the removing party bearing the burden of establishing jurisdiction.
- The Sixth Circuit majority affirmed remand, holding (a) MDEQ officials were not "acting under" a federal officer for § 1442 purposes, and (b) Plaintiffs’ state-law tort claims do not present the kind of "substantial" federal question required for § 1441 removal.
- A dissent argued the notice of removal alleged sufficient facts to make federal-officer removal colorable and that, on a facial attack, doubts should be resolved in favor of removal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MDEQ officials were "acting under" a federal officer for § 1442 removal | MDEQ were state actors enforcing Michigan law; cooperative federalism means they were not under EPA control | MDEQ carried out SDWA/LCR monitoring and enforcement under EPA primacy delegation, oversight, funding, and EPA communications (including emergency order) | Not acting under EPA; § 1442 removal denied (state primacy and cooperative federalism, no delegation/agency relationship shown) |
| Whether MDEQ’s conduct was "under color of" federal office or gave rise to a colorable federal defense for § 1442 | Plaintiffs: claims arise from state-law duties, not federal directives | Defendants: their duties derived from federal SDWA/LCR implementation and oversight, so colorable federal defenses exist | Court did not reach these prongs after finding no "acting under" relationship |
| Whether Plaintiffs’ state-law tort claims raise a "substantial" federal question for § 1441 removal | Tort claims are garden-variety state causes of action; any federal regulation reference is insufficient | Claims necessarily implicate SDWA/LCR interpretation and uniform federal interest | Not substantial: Merrell Dow/Grable line controls; absence of a private federal remedy under SDWA disfavors federal jurisdiction |
Key Cases Cited
- Watson v. Philip Morris Cos., 551 U.S. 142 (interpreting "acting under" in § 1442 and limiting removal where private actors merely comply with federal regulation)
- Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804 (state-law tort claims that merely invoke federal statutory violations generally do not confer federal-question jurisdiction)
- Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308 (narrow category where federal issue in state claim is sufficiently substantial to support federal jurisdiction)
- Willingham v. Morgan, 395 U.S. 402 (broad purpose of § 1442 to allow federal defenses to be litigated in federal court)
- Bennett v. MIS Corp., 607 F.3d 1076 (6th Cir.) (elements required for nonfederal persons to remove under § 1442)
- Hampton v. R.J. Gorman R.R. Switching Co., 683 F.3d 708 (6th Cir.) (Merrell Dow applied post-Grable to bar federal jurisdiction over negligence claims tied to federal regulation)