thank you the audience seems to have lost interest in your case mr barbieri i'm not sure that people want to vote on anything i argue and in any event i'm here today on behalf argument is that the m d q defendants properly removed the state maze case on the basis of the federal officer removal statue the district court erred in ordering remember the two tests that have to be applied or  that are under scrutiny in this case were decided wrongly by the district court the district court first aired in applying what is called the acting under test for federal officer removal and that test begins as instructed by the united states supreme court case in watson with the analysis of whether the m d q and in simpler ways work under subjects in guidance or control of the us e p a is our contention that program and gave it primary enforcement authority in the state for purposes of the federal safe drinking water act and its subsequent approval of each set of regulations that a follow including the issue of the lead comparable regulations that are at issue in this case how it goes to the m d q approved the switch of the flint water supply well your honor it was a decision actually made by flint through it that switch at that point in time they probably did not they probably were made aware because there are what i would call monthly communications with my side but they were communicating with but i mean  the regulations that the federal safety making water and holes so if you go and look at the federal safe drinking water regulations including the ones that relate to letting comparable it allows for two different methods to be used that is in a fact the erection in the authority that was given so even though the e p a was not directly in book it certainly by the fact that it granted primacy and certainly by the fact that it has regulations which it approved for the purposes of the state was governing what could be done first showing optimize corrosion all right well i mean we know about this lead copper rule but did the did the it does the p s a limit how much testing the mt few could do just a minimum well the regulations specify what testing is to be done and that set forth in the federal and that's what i mean couldn't m d you do more testing than the e required i suppose if it found a reason to do so yes i always getting reports one of i we got problems with not not not in the area of the lead your honor in fact when the testing will the water was looking for fuel or was it and then they did respond to those complaints which is separate and apart from what really the issues are here we submit that there really issue here is a lead copper role as for those issues that you're talking about each of those are responded to under the safe drinking water when you talk about odor and things of that nature they looked into boil water by series they looked into the issue in terms of that what type of disinfection was occurring and then as a the purpose of the federal you know the federal officer removal that well the policy is to prevent interference with operations and it's also to avoid the local prejudice that issue because what they're enforcing what they're required in force is the federal safe drinking water and also the federal regulations this was for sorry michigan has its own safe water act well it given the context and given how each of these regulations have been developed and then in the acted by the state itself there's no question that there's federal involvement is not simply a matter of state regulators  delegated to them but i'm not sure i found a state officer case we would be this is a case of first impression in the car i don't think it's that hard your honor i think if you apply the tests which i understand a private you can cite me any authority  any state officer has been allowed to shouldn't think the president should make this court fearful of applying these terror to deaf well i assume i assume it's also true is it not mr dreher there aren't any cases where state officials have been  defect in the district court opinion here it seems to be that the district court believed the watson required a finding that the federal officials actually directed the state officials actions i don't think you need to showed me that  i get to the question please that's what the district court says and so we look to watson to see if that's a proper application of watson watson also refers to subjects in guidance control an effort to a sister help carry out so it's clear that there are lots of other things under watson that could conceivably provide that somebody qualified as as a federal official so now we go to this case and we look at your pleadings which are primarily the notice of removal and we look at that and we look at only the attachments to the notice removal and we take that as true just like we take the complete history so when i read that i don't really see where you're very specific about what the e p a did in the form of subjection guidance or control so what what do you what's your best evidence that the state officials your clients were actually acting under the supervision guidance or control as opposed to direction of the e p a briefly number one i don't think you have to show direct control which i think is the inference perhaps from judge goldman's question in your honour's question i submit respect i said mr bradbury if there is an error in the district court opinion it's that it s seems to require there to be a showing of of direction in my point was watson goes well beyond direction to allow somebody to at least invoke a federal official status so i'm not i don't want to talk about direction but your honor what else is there that you rely upon besides directions i don't find that they directed you to do anything relative to the lead and copper water i would argue they did if you had to go there for but let me just respond directly you're pushing the whole process of how they got into the position to perform the tasks they were doing was as the result of delegation kirby behind the one nine hundred seventy four act it occurred by the fact that michigan pass its own statute one thousand nine hundred six it occurred as a result of the primacy being approved and with each set of regulations each set of regulations have to be reapproved in primacy reestablish and that has in fact been done over the years by the michigan department certainly this is a delegation doesn't it so facto mean that there was direction supervision or monitoring or it is judged gillman argued or asked you you can set forth a standard but that doesn't mean that that's the only way it can be done that can be a minimum and the state can go beyond that terms of the federal regulations they tell you what you're going to be able to do in terms of optimization there are two options those are spelled out by the federal regulation you can do it by monitoring two six month rounds of testing which was in fact employed in this case or you could opt to go to corrosion control which would have some type of treatment which would have required a study but what i'm trying to figure out is under the lead in the water rule it says those are things that you can do which presumably mitt brings you in compliance with federal law but as judge gellman asked you is there anything in there that says you that the state official can't do more your honor that i suspect in their premise they they they couldn't do any less that's absolutely we got that but could they do more if the circumstances justified and the reason i'm asking you that is i think that when i pose this question to mr goodman he's going to say that the whole underlying tort claim here is the failure to do more i don't know that but i'm guessing that's what he's going to say so if the regulations preclude from doing more than it seems to me that undercuts is there but if if it's such a floor and they can do more then why are the federal officials for failing to do more what would be the basis for doing more what our clients did was in compliance with the federal state drink well he gets to answer that i don't know what he's going to say in terms of what they have argued here you heard they've argued three things anyway the rate the the specific question is does the regulations say you have to do it this way in which case good argument for direction or does it say you've got these options but doesn't preclude you from doing more terms of what you had to do for and maybe it would be helpful when you come back if you could just give me the site within the the lead in water rule that's i don't know how many pages to suspect that some hot thank you  should do more and fail to do so not based upon any testing that may be suggested but eleven comparable but based upon their own knowledge of what was wrong with the original switch you keep saying that this is a simple garden variety state tort action less i'm missing something this the source of the duty the breach of which could constitute a tort has to come from either state statute or state common law right right in this case comes from both so here you're saying that tort of not doing more than what the federal regulations require is a violation of the michigan safe drinking water act right and where where where could you just simply tell me where do i find that duty in the safe water drinking act to do more than what the federal law says of i want to leave aside the michigan sa drinking water act i think that that requires them to do a series of tests and a series of determinations as to the toxicity of this water but they move and we have alleged that they knew already that these were that this was toxic a toxic substance and they didn't need to do the testing they already knew it in the source of bad responsibility as is common one gross negligence of other come on michigan ok do we have i don't find that you cite any michigan law cases that set forth the duty of these federal officials in any kind of an air ologists situation so what what michigan law cases to establish that common law should we look at state public officials use you ask me about state public officials or federal of yes to the source of the state tort here and a you first that it was it was the statute and common law and then you said well let's forget the statute for a minute so what case what michigan state court case are you relying upon to establish the duty here that you claim they breached i'm didn't when i said there's a statutory duty your honor just to be clear i did not mean the michigan safe drinking water act i meant the michigan governmental immunity stance which says that there is a munity for simple negligence but that there is continued liability for common law gross negligence to get as to public officials ok so where do i find a case that spells out what common law gross basic implicit criticism of failure to cite similar cases or authority to say that this constitutes gross negligence however the situation that occurred with regard to the sensually poisoning  community in flint is so unusual are indeed that unique that i don't think that we're going to find any cases that are right on point with regard to that responsibility of public officials another words this state garden variety tort is not one  that you can find its basis in either the michigan safe water drinking act or michigan duty case well clearly if someone in gauges in outrageous behavior that recklessly causes injury to another then that is gross negligence that's the definition of gross negligence on a mission of law and i can find many cases let me tell you why i'm asking so there's no mystery here if there is an easy source that you can point to to the state common law beauty that was a breached then that's very persuasive esta this is a state case and it's stinky state court but if you can't point to any sort of statute or case then that's at least somewhat supportive of the other side's argument that this is really all about the federal statute and the lead and copper rule the situation i it's not dissimilar to a situation where let us say a police officer in the course of exercising his law enforcement responsibilities or her law enforcement responsibilities overreacts them gages in some form of gross negligence beats up a prisoner or something along those lines this is what happened with these with these particular defendants in this case they knew the water was poisonous and it wasn't that they they failed they did fail the act but it was that they they affirmatively and proactively approved the change of water to a source that as i said they knew to be dangerous and poisonous and it wasn't only under the lemon copper your honor there are other contaminants as well but the failure to provide the necessary protections in this case let loose a whole series of other contaminants that are not covered by the lemon think i hate to use the term but it course that was used by the lower court in this case is it is a garden variety tort it is gross negligence and it is covered by statute which is the michigan governor unity act as well as common law one of them was monitor for six months see what the result is monitor for another six months and see what the result is could you speak to it just seems a little in congress to have somebody following a federal rule that then is held liable in state court first state court negligence or gross negligence as you're saying it for not going beyond that rule so do we have to could you speak to that and whether there are any cases that at that address that i'd be happy to they didn't need to test they knew it already if the testing is a protocol that we're by these officials educate themselves as to the toxicity of a particular water source they have been knowledge already it was in their hair in their heads and therefore the fact that the lab in copper rule may say here's a way you can figure out whether one is toxic is going to be toxic this is a testing protocol that will work is irrelevant to the point here's why i'm wondering if it's irrelevant what it seemed to be from reading this is that before you take the affirmative action of sticking additional chemicals in the water corrosion control you've got to have a test results that justify still putting that stuff in the water you seem to say gee the water was stinky and it smelled this seems to be no dispute about that therefore they knew there was due respect number one it wasn't simply that the water was smelly in key in and foul tasting it was that that years before the switch was made the city of flint did a study that sa if you use the water from flint river it's going to have huge corrosion possibilities or likelihood and you have and and this was a a red flag this was a warning that the city of flint knew exception and that i think relates to the issue of whether there's a substantial federal issue involved here i might point out and i i believe that we did point out in our briefing that that to allow removal here based basically is what it boils down to that not only will it allow for removal in this particular situation but there's this court knows there's a whole raft of other cases including criminal cases that that then be subject to removal as will all of the other defendants in our case who did not remove it's only the m d q there's no remote criminal case so that's well and interestingly enough and i'm not saying but you're right or wrong on this but watson says that to construe the federal official removal statute liberally that not narrow right yes i agree so anything of we put you to the task of this big huge charge which is shocking so we appreciate you doing that couldn't have been easy is there any significance whatsoever to the fact that it seems and judge levy is has acted to consolidate all of the federal cases and one case that's correct or so does it i'm not sure this is relevant but it just seems sort of odd that that this case involving exactly the same acts of the federal officials the of the state officials would be tried in state court when everything else is being tried in federal i think that that's a fair point we might point out that thinking in that as well and i don't i don't but you're wedded to getting this remanded back even in light of everything that's happened in both venue's since this dispute came up whether it is a strong word  but this case has now been subsequently removed a second time and that issue is in dispute yes that's before judge levy at this point the there's another removal that is of the same case of the same case that's right clause that allows for the rectification wrongs that have occurred under state common law and state statutory law and this is a part of the federal statute and should be a part  of this court's consideration and finally the the what was referred to as primacy is primary the word is primary important responsibility by state officials and that only  kicks in once the once the state of michigan passes its own safe drinking water act which as was pointed out by counsel has happened in this case and in that instance them honor let me first respond to the challenge ahead in terms of what regular ation should be consulted i would urge the court to look at forty c f r sections one forty one point eight one and one forty one point eight two and in fact we discuss there at pages already six through forty eight of our brief in specifically we quoted a portion of that which sets forth the this is like a garden variety state tort claim i think you struggle to make that suggestion here and i think the reason to struggle is when you look at what this whole case is tied to it's type two whether corrosion  treatment is required and that's tied to whether the lead copper rule allows for a six month rounds of residential tap testing the issue of whether preflight sheen occurred which is tied again to federal testing requirements going in for the purposes of that when you're are if you want to look at that that's at forty c f r one forty one point eight six it also involves the issue of when warnings and notices are to be given and it's only in certain circumstances when certain levels are exceeded and for the initials rounds of sampling that occurred there was no requirement beyond those that were set to flat as to what needed to be sent to specific persons who were part of that in the first instance there was a six percent in the second instance it was eleven percent where the results were higher than the practical quantitative limit which is different than the actual negligent in approving the switch of the water because are going to prior study before the switch that there were lots of toxins in the river we always a very generic study or on earth one wanted to review it without telling you what it had to do with whether it would be c for lead and quite frankly our clients did look at sampling before their switch was made to look at ph they look at calcium and some other factors and they didn't show the telltales that you would hear corrosion  control so your honor well then the next step after that that mr goodman didn't mention is the g m plant in flint stops using flint water as well because it's corroding the parts and it's corroding the machine to do with the chloride it's a very complicated argument that's why it requires a federal court to review thank you i think you counsel complicated seems to me to  be an understatement this is could be just a fascinating law school final examination question if one was really macchiavelli and i suppose this is an important matter obviously we will