Case: 5:16-cv-11519 As of: 12/07/2019 01:03 PM EST 1 of 12
CLOSED,reassigned
U.S. District Court Eastern District of Michigan (Ann Arbor) CIVIL DOCKET FOR CASE #: 5:16−cv−11519−JCO−MKM

Mays et al v. Flint, City of et al Assigned to: District Judge John Corbett O'Meara Referred to: Magistrate Judge Mona K. Majzoub Case in other court: Genesee County Circuit Court,
16−106112−CZ
U.S. Court of Appeals − Sixth Circuit, 16−02484
U.S. Court of Appeals − Sixth Circuit, 16−02484 Cause: 33:1365 Environmental Matters
Plaintiff

Date Filed: 04/27/2016 Date Terminated: 10/06/2016 Jury Demand: Defendant Nature of Suit: 893 Environmental Matters Jurisdiction: Federal Question

Melissa Mays

represented by Trachelle C. Young Trachelle C. Young & Associates, PLLC 503 S. Saginaw Street Suite 827 Flint, MI 48502 810−239−6302 Fax: 810−239−6924 Email: trachelleyoung@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Beth M. Rivers Pitt McGehee Palmer & Rivers 117 W. Fourth Street Suite 200 Royal Oak, MI 48067−3804 248−398−9800 Email: brivers@pittlawpc.com ATTORNEY TO BE NOTICED

Cary S. McGehee Pitt, McGehee, 117 W. Fourth Street Suite 200 Royal Oak, MI 48067−3804 248−398−9800 Email: cmcgehee@pittlawpc.com ATTORNEY TO BE NOTICED

Deborah A. LaBelle 221 N. Main Street Suite 300 Ann Arbor, MI 48104 734−996−5620 Email: deblabelle@aol.com ATTORNEY TO BE NOTICED

Julie H. Hurwitz Goodman and Hurwitz, P.C. 1394 E. Jefferson Avenue Detroit, MI 48207 313−567−6170 Fax: 313−567−4827 Email: jhurwitz@goodmanhurwitz.com ATTORNEY TO BE NOTICED

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Plaintiff Michael Mays
Plaintiff Jacqueline Pemberton

Kathryn Bruner James Goodman and Hurwitz, P.C. 1394 E. Jefferson Avenue Detroit, MI 48207 313−567−6170 Fax: 313−567−4827 Email: kjames@goodmanhurwitz.com ATTORNEY TO BE NOTICED
Michael L. Pitt Pitt, McGehee, 117 W. Fourth Street Suite 200 Royal Oak, MI 48067−3804 248−398−9800 Email: mpitt@pittlawpc.com ATTORNEY TO BE NOTICED
William H. Goodman Goodman and Hurwitz 1394 E. Jefferson Avenue Detroit, MI 48207 313−567−6170 Fax: 313−567−4827 Email: bgoodman@goodmanhurwitz.com ATTORNEY TO BE NOTICED
represented by Trachelle C. Young (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Beth M. Rivers (See above for address) ATTORNEY TO BE NOTICED
Cary S. McGehee (See above for address) ATTORNEY TO BE NOTICED
Deborah A. LaBelle (See above for address) ATTORNEY TO BE NOTICED
Julie H. Hurwitz (See above for address) ATTORNEY TO BE NOTICED
Kathryn Bruner James (See above for address) ATTORNEY TO BE NOTICED
Michael L. Pitt (See above for address) ATTORNEY TO BE NOTICED
William H. Goodman (See above for address) ATTORNEY TO BE NOTICED
represented by

Case: 5:16-cv-11519 As of: 12/07/2019 01:03 PM EST 3 of 12

Trachelle C. Young (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Beth M. Rivers (See above for address) ATTORNEY TO BE NOTICED

Cary S. McGehee (See above for address) ATTORNEY TO BE NOTICED

Deborah A. LaBelle (See above for address) ATTORNEY TO BE NOTICED

Julie H. Hurwitz (See above for address) ATTORNEY TO BE NOTICED

Kathryn Bruner James (See above for address) ATTORNEY TO BE NOTICED

Michael L. Pitt (See above for address) ATTORNEY TO BE NOTICED

William H. Goodman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Keith Pemberton

represented by Trachelle C. Young (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Beth M. Rivers (See above for address) ATTORNEY TO BE NOTICED

Cary S. McGehee (See above for address) ATTORNEY TO BE NOTICED

Deborah A. LaBelle (See above for address) ATTORNEY TO BE NOTICED

Julie H. Hurwitz (See above for address) ATTORNEY TO BE NOTICED

Kathryn Bruner James (See above for address) ATTORNEY TO BE NOTICED

Michael L. Pitt (See above for address) ATTORNEY TO BE NOTICED

William H. Goodman

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(See above for address) ATTORNEY TO BE NOTICED

Plaintiff Elnora Carthan

represented by Trachelle C. Young (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Beth M. Rivers (See above for address) ATTORNEY TO BE NOTICED

Cary S. McGehee (See above for address) ATTORNEY TO BE NOTICED

Deborah A. LaBelle (See above for address) ATTORNEY TO BE NOTICED

Julie H. Hurwitz (See above for address) ATTORNEY TO BE NOTICED

Kathryn Bruner James (See above for address) ATTORNEY TO BE NOTICED

Michael L. Pitt (See above for address) ATTORNEY TO BE NOTICED

William H. Goodman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Rhonda Kelso

represented by Trachelle C. Young (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Beth M. Rivers (See above for address) ATTORNEY TO BE NOTICED

Cary S. McGehee (See above for address) ATTORNEY TO BE NOTICED

Deborah A. LaBelle (See above for address) ATTORNEY TO BE NOTICED

Julie H. Hurwitz (See above for address) ATTORNEY TO BE NOTICED

Kathryn Bruner James (See above for address) ATTORNEY TO BE NOTICED

Michael L. Pitt

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(See above for address) ATTORNEY TO BE NOTICED
William H. Goodman (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Flint, City of
Defendant Natasha Henderson Defendant Eden Victoria Wells Defendant

represented by Frederick A. Berg Butzel Long 150 West Jefferson, Suite 100 Detroit, MI 48226 313−225−7000 Fax: 313−225−7080 Email: bergf@butzel.com ATTORNEY TO BE NOTICED
Reed E. Eriksson City of Flint Legal Department 1101 S. Saginaw St. 3rd Floor Flint, MI 48502 810−237−2078 Email: reriksson@cityofflint.com ATTORNEY TO BE NOTICED
Sheldon H. Klein Butzel Long 41000 Woodward Avenue Stoneridge West Bloomfield Hills, MI 48304 248−258−1414 Fax: 248−258−1439 Email: klein@butzel.com ATTORNEY TO BE NOTICED
William Young Kim City of Flint 1101 S. Saginaw Street Third Floor Flint, MI 48502 810−766−7146 Fax: 810−232−2114 Email: wkim@cityofflint.com ATTORNEY TO BE NOTICED
represented by Reed E. Eriksson (See above for address) ATTORNEY TO BE NOTICED
William Young Kim (See above for address) ATTORNEY TO BE NOTICED

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Stephen Busch

represented by Courtney B. Gilliam Kotz Sangster Wysocki P.C. 400 Renaissance Center Suite 3400 Detroit, MI 48243 313−259−8300 Fax: 313−259−1451 Email: cciullo@kotzsangster.com ATTORNEY TO BE NOTICED

Dennis K. Egan Kotz, Sangster, Wysocki & Berg, P.C. 400 Renaissance Center, Suite 3400 Detroit, MI 48234 313−259−8300 Fax: 313−259−1451 Email: degan@kotzsangster.com ATTORNEY TO BE NOTICED

Krista A. Jackson Smith Haughey Rice & Roegge 100 Monroe Center, NW Grand Rapids, MI 49503 616−458−3633 Fax: 616−774−2461 Email: kjackson@shrr.com ATTORNEY TO BE NOTICED

Philip A. Grashoff , Jr. Smith Haughey Rice & Roegge 100 Monroe Center, NW Grand Rapids, MI 48304 616−774−8000 Fax: 616−774−2461 Email: pgrashoff@shrr.com ATTORNEY TO BE NOTICED

Defendant Liane Shekter Smith

represented by Thaddeus E. Morgan Fraser, Trebilcock, 124 W. Allegan Street Suite 1000 Lansing, MI 48933 517−482−5800 Email: tmorgan@fraserlawfirm.com ATTORNEY TO BE NOTICED

Defendant Adam Rosenthal

represented by Allison M. Collins Foster, Swift, Collins & Smith, P.C. 313 S. Washington Square Lansing, MI 48933 517−371−8124 Fax: 517−371−8200 Email: acollins@fosterswift.com ATTORNEY TO BE NOTICED

Charles E. Barbieri Foster, Swift, 313 S. Washington Square Lansing, MI 48933−2193 517−371−8100 Fax: 517−371−8200 Email: cbarbieri@fosterswift.com

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ATTORNEY TO BE NOTICED

Defendant Patrick Cook

represented by Allison M. Collins (See above for address) ATTORNEY TO BE NOTICED

Charles E. Barbieri (See above for address) ATTORNEY TO BE NOTICED

Defendant Michael Prysby

represented by Allison M. Collins (See above for address) ATTORNEY TO BE NOTICED

Charles E. Barbieri (See above for address) ATTORNEY TO BE NOTICED

Defendant Bradley Wurfel

represented by Christopher B. Clare Clark Hill PlC 601 Pennsylvania Ave. NW, N. Building Suite 1000 Washington, DC 20004 202−572−8671 Fax: 202−572−8691 Email: cclare@clarkhill.com ATTORNEY TO BE NOTICED

Jay M. Berger Clark Hill (Detroit) 500 Woodward Avenue Suite 3500 Detroit, MI 48226−3435 313−965−8300 Email: jberger@clarkhill.com ATTORNEY TO BE NOTICED

Michael J. Pattwell Clark Hill, PLC 212 E. Cesar E. Chavez Avenue Lansing, MI 48906 517−318−3043 Fax: 517−318−3082 Email: mpattwell@clarkhill.com ATTORNEY TO BE NOTICED

Defendant Howard Croft

represented by Reed E. Eriksson (See above for address) ATTORNEY TO BE NOTICED

William Young Kim (See above for address) ATTORNEY TO BE NOTICED

Defendant Michael Glasgow

represented by Reed E. Eriksson (See above for address) ATTORNEY TO BE NOTICED

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Defendant Daugherty Johnson
Defendant State of Michigan

William Young Kim (See above for address) ATTORNEY TO BE NOTICED
represented by Reed E. Eriksson (See above for address) ATTORNEY TO BE NOTICED
William Young Kim (See above for address) ATTORNEY TO BE NOTICED
represented by Richard S. Kuhl Assistant Attorney General Environment, Natural Resources, and Agriculture Division 525 West Ottawa Street P.O. Box 30755 Lansing, MI 48909 517−335−7664 Fax: 517−241−3473 Email: kuhlr@michigan.gov ATTORNEY TO BE NOTICED

Date Filed 04/27/2016
04/27/2016 04/27/2016 04/27/2016 04/27/2016 05/02/2016 05/03/2016 05/04/2016

# Docket Text
1 NOTICE OF REMOVAL by Liane Shekter Smith, Patrick Cook, Michael Wurfel, Stephen Busch from Genesee County Circuit Court, case number 16−106112−CZ. Fee Required − Fee Not Paid. [Previously dismissed case: No] (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H− part 1, # 10 Exhibit H − part 2, # 11 Exhibit H − part 3, # 12 Exhibit I, # 13 Exhibit J) (Barbieri, Charles) (Entered: 04/27/2016)
2 Notice of Filing Fee Not Paid. Correction due by 5/4/2016 (DWor) (Entered: 04/27/2016)
NOTICE of Error directed to: Charles E. Barbieri re 1 Notice of Removal,,. Parties listed on the initiating document were omitted. [Bradley Wurfel] The filing attorney must use the docket event Addition of Parties to correct the error. [No Image Associated with this docket entry] (DWor) (Entered: 04/27/2016)
A United States Magistrate Judge of this Court is available to conduct all proceedings in this civil action in accordance with 28 U.S.C. 636c and FRCP 73. The Notice, Consent, and Reference of a Civil Action to a Magistrate Judge form is available for download at http://www.mied.uscourts.gov (DWor) (Entered: 04/27/2016)
Addition of Parties to CM/ECF: Defendant Michael Wurfel. Reason: The party was not added to CM/ECF when e−filing 1 Notice of Removal,, (Barbieri, Charles) (Entered: 04/27/2016)
3 NOTICE of Appearance by Michael J. Pattwell on behalf of Michael Wurfel. (Pattwell, Michael) Modified on 5/3/2016 (DWor). [APPEARANCE IS FOR BRADLEY WURFEL] (Entered: 05/02/2016)
FILING FEE Received in the amount of $400.00 by All Defendants − Receipt No. DET091622 [No Image Associated with this docket entry] (Huff, W.) (Entered: 05/03/2016)
4 ATTORNEY APPEARANCE: Dennis K. Egan appearing on behalf of Stephen Busch w/Certificate of Service (Egan, Dennis) (Entered: 05/04/2016)

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05/04/2016 05/04/2016 05/04/2016 05/04/2016 05/05/2016 05/05/2016 05/05/2016
05/09/2016 05/09/2016 05/09/2016 05/10/2016 05/10/2016 05/10/2016 05/11/2016
05/13/2016 05/13/2016 05/16/2016
05/17/2016 05/17/2016 05/23/2016

5 ATTORNEY APPEARANCE: Courtney B. Ciullo appearing on behalf of Stephen Busch w/Certificate of Service (Ciullo, Courtney) (Entered: 05/04/2016)
6 ATTORNEY APPEARANCE: Krista A. Jackson appearing on behalf of Stephen Busch w/Certificate of Service (Jackson, Krista) (Entered: 05/04/2016)
7 NOTICE of Appearance by Philip A. Grashoff, Jr on behalf of Stephen Busch. (Grashoff, Philip) (Entered: 05/04/2016)
8 NOTICE of Appearance by Thaddeus E. Morgan on behalf of Liane Shekter Smith. (Morgan, Thaddeus) (Entered: 05/04/2016)
9 NOTICE of Appearance by Christopher B. Clare on behalf of Bradley Wurfel. (Clare, Christopher) (Entered: 05/05/2016)
10 NOTICE of Appearance by Allison M. Collins on behalf of Patrick Cook, Michael Prysby, Adam Rosenthal. (Collins, Allison) (Entered: 05/05/2016)
11 MEMORANDUM re 1 Notice of Removal,, Supplemental by Stephen Busch, Patrick Cook, Liane Shekter Smith, Bradley Wurfel (Attachments: # 1 Index of Exhibits Index, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E) (Barbieri, Charles) (Entered: 05/05/2016)
12 NOTICE of Appearance by Beth M. Rivers on behalf of All Plaintiffs. (Rivers, Beth) (Entered: 05/09/2016)
13 NOTICE of Appearance by Michael L. Pitt on behalf of All Plaintiffs. (Pitt, Michael) (Entered: 05/09/2016)
14 NOTICE of Appearance by Cary S. McGehee on behalf of All Plaintiffs. (McGehee, Cary) (Entered: 05/09/2016)
15 NOTICE of Appearance by Julie H. Hurwitz on behalf of All Plaintiffs. (Hurwitz, Julie) (Entered: 05/10/2016)
16 NOTICE of Appearance by William H. Goodman on behalf of All Plaintiffs. (Goodman, William) (Entered: 05/10/2016)
17 NOTICE of Appearance by Kathryn Bruner James on behalf of All Plaintiffs. (James, Kathryn) (Entered: 05/10/2016)
18 MOTION to Remand and Attorney's Fees and Costs by All Plaintiffs. (Attachments: # 1 Exhibit 1 − EPA Emergency Admin Order, # 2 Exhibit 2 − McCarthy EPA Statement, # 3 Exhibit 3 − Creagh MI DEQ Statement) (Rivers, Beth) (Entered: 05/11/2016)
19 ORDER of DISQUALIFICATION and REASSIGNING CASE from District Judge Terrence G. Berg in Flint to District Judge Sean F. Cox in Detroit. (SSch) (Entered: 05/13/2016)
20 NOTICE of Appearance by William Young Kim on behalf of Howard Croft, Flint, City of, Michael Glasgow, Natasha Henderson, Daugherty Johnson. (Kim, William) (Entered: 05/13/2016)
21 STIPULATION AND ORDER Extending Time for Patrick Cook, Michael Prysby, Adam Rosenthal, Liane Shekter−Smith, Bradley Wurfel, and Stephen Buschre to Respond re 18 MOTION to Remand and Attorney's Fees and Costs. (Response due by 6/10/2016) Signed by District Judge Sean F. Cox. (JMcC) (Entered: 05/16/2016)
22 NOTICE of Appearance by Jay M. Berger on behalf of Bradley Wurfel. (Berger, Jay) (Entered: 05/17/2016)
23 NOTICE by Stephen Busch, Patrick Cook, Michael Prysby, Adam Rosenthal, Liane Shekter Smith, Bradley Wurfel of Companion Cases (Barbieri, Charles) (Entered: 05/17/2016)
24 ORDER REASSIGNING CASE from District Judge Sean F. Cox and Magistrate Judge David R. Grand in Detroit to District Judge John Corbett O'Meara and Magistrate Judge Mona K. Majzoub in Ann Arbor. (SSch) (Entered: 05/23/2016)

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06/01/2016 06/08/2016 06/08/2016 06/09/2016 06/09/2016 06/10/2016
06/17/2016 06/23/2016
06/24/2016
06/24/2016 07/06/2016 07/06/2016 07/08/2016 07/20/2016 07/21/2016 07/22/2016 07/25/2016 07/25/2016

25 NOTICE of Appearance by Deborah A. LaBelle on behalf of All Plaintiffs. (LaBelle, Deborah) (Entered: 06/01/2016)
26 NOTICE of Appearance by Frederick A. Berg on behalf of Flint, City of. (Berg, Frederick) (Entered: 06/08/2016)
27 NOTICE of Appearance by Sheldon H. Klein on behalf of Flint, City of. (Klein, Sheldon) (Entered: 06/08/2016)
28 MOTION for Leave to File Excess Pages by Stephen Busch, Patrick Cook, Michael Prysby, Adam Rosenthal, Liane Shekter Smith, Bradley Wurfel. (Barbieri, Charles) (Entered: 06/09/2016)
TEXT−ONLY ORDER Granting 28 MOTION for Leave to File Excess Pages. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 06/09/2016)
29 RESPONSE to 18 MOTION to Remand and Attorney's Fees and Costs filed by Stephen Busch, Patrick Cook, Michael Prysby, Adam Rosenthal, Liane Shekter Smith, Bradley Wurfel. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O, # 17 Exhibit P, # 18 Exhibit Q) (Barbieri, Charles) (Entered: 06/10/2016)
30 STIPULATION AND ORDER Extending Time to File a Reply Brief in Support of 18 MOTION to Remand and Attorney's Fees and Costs; Reply Brief due by 7/8/2016, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 06/17/2016)
31 STIPULATION AND ORDER Extending Time for Defendants Wyant, Smith, Rosenthal, Busch, Cook, Prysby, and Wurfel to Answer Complaint; Responsive Pleading due by 7/25/2016, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 06/23/2016)
NOTICE of Error directed to: Charles E. Barbieri re 32 Supplemental Brief,. Docket entry was made on the wrong case. Document was stricken and must be refiled correctly. [No Image Associated with this docket entry] (Ahmed, N) (Entered: 06/24/2016)
33 EXHIBIT Q Supplement re 29 Response to Motion,, 18 MOTION to Remand and Attorney's Fees and Costs by Patrick Cook, Michael Prysby, Adam Rosenthal (Attachments: # 1 Exhibit Q Supplement) (Barbieri, Charles) (Entered: 06/24/2016)
34 Ex Parte MOTION for Leave to File Excess Pages in the Filing of Plaintiffs Reply to MDEQ Defendants Response to Plaintiffs Motion for Remand and Attorneys Fees and Costs by All Plaintiffs. (Hurwitz, Julie) (Entered: 07/06/2016)
TEXT−ONLY ORDER Granting 34 Ex Parte MOTION for Leave to File Excess Pages. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 07/06/2016)
35 REPLY to Response re 18 MOTION to Remand and Attorney's Fees and Costs filed by All Plaintiffs. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4) (Rivers, Beth) (Entered: 07/08/2016)
36 MOTION for Leave to File Excess Pages by Bradley Wurfel. (Clare, Christopher) (Entered: 07/20/2016)
37 ORDER granting in part 36 Motion for Leave to File Excess Pages. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 07/21/2016)
38 Ex Parte MOTION for Leave to File Excess Pages by Patrick Cook, Michael Prysby, Adam Rosenthal. (Barbieri, Charles) (Entered: 07/22/2016)
TEXT−ONLY ORDER Granting 38 Ex Parte MOTION for Leave to File Excess Pages filed by Michael Prysby, Adam Rosenthal, Patrick Cook. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 07/25/2016)
39 MOTION to Dismiss by Bradley Wurfel. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F) (Clare, Christopher) (Entered: 07/25/2016)

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07/25/2016
08/15/2016 08/15/2016 08/17/2016 08/19/2016
08/19/2016 08/26/2016 08/26/2016 08/31/2016 09/01/2016
09/13/2016 10/06/2016 10/06/2016 10/19/2016 10/19/2016

40 Joint MOTION to Dismiss and Brief in Support of MDEQ Employee Defendants Under Fed. R. Civ. P. 12(B)(6) by Patrick Cook, Michael Prysby, Adam Rosenthal. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L) (Barbieri, Charles) (Entered: 07/25/2016)
41 STIPULATION AND ORDER Extending Time until August 26, 2016, for City of Flint Defendants to Respond to Complaint, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 08/15/2016)
42 Ex Parte MOTION for Extension of Time to File Response/Reply as to 40 Joint MOTION to Dismiss and Brief in Support of MDEQ Employee Defendants Under Fed. R. Civ. P. 12(B)(6), 39 MOTION to Dismiss by All Plaintiffs. (Pitt, Michael) (Entered: 08/15/2016)
TEXT−ONLY ORDER Granting in Part 42 Ex Parte MOTION for Extension of Time to File Response as to 40 Joint MOTION to Dismiss, 39 MOTION to Dismiss; Response due by 9/16/2016, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 08/17/2016)
43 MOTION Hold Summary Disposition Briefing in Abeyance Pending Resolution of Motion to Remand re 40 Joint MOTION to Dismiss and Brief in Support of MDEQ Employee Defendants Under Fed. R. Civ. P. 12(B)(6), 39 MOTION to Dismiss , 18 MOTION to Remand and Attorney's Fees and Costs by All Plaintiffs. (LaBelle, Deborah) (Entered: 08/19/2016)
44 ORDER Requiring Response to 43 Motion,. Response due by 9/2/2016 Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 08/19/2016)
45 NOTICE of Appearance by Reed E. Eriksson on behalf of Howard Croft, Flint, City of, Michael Glasgow, Natasha Henderson, Daugherty Johnson. (Eriksson, Reed) (Entered: 08/26/2016)
46 Joint MOTION to Dismiss by Howard Croft, Flint, City of, Michael Glasgow, Natasha Henderson, Daugherty Johnson. (Attachments: # 1 Index of Exhibits Table of Exhibits, # 2 Exhibit Exhibit A, # 3 Exhibit Exhibit B, # 4 Exhibit Exhibit C, # 5 Exhibit Exhibit D, # 6 Exhibit Exhibit E) (Eriksson, Reed) (Entered: 08/26/2016)
47 STIPULATION AND ORDER Extending Time to Respond to 46 Joint MOTION to Dismiss; Response due by 9/23/2016, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 08/31/2016)
48 RESPONSE to 43 MOTION Hold Summary Disposition Briefing in Abeyance Pending Resolution of Motion to Remand re 40 Joint MOTION to Dismiss and Brief in Support of MDEQ Employee Defendants Under Fed. R. Civ. P. 12(B)(6), 39 MOTION to Dismiss , filed by Stephen Busch, Patrick Cook, Michael Prysby, Adam Rosenthal, Liane Shekter Smith, Bradley Wurfel. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Cases Re Argument II, # 3 Exhibit B − Cases Re Argument III, # 4 Exhibit C − Addtl Cases Re Argument III, # 5 Exhibit D − Addtl Cases Re Argument III) (Barbieri, Charles) (Entered: 09/01/2016)
49 ORDER granting 43 Motion to Hold Briefing in Abeyance. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 09/13/2016)
50 OPINION AND ORDER REMANDING CASE to Genesee County Circuit Court. Signed by District Judge John Corbett O'Meara. (DPer) (Entered: 10/06/2016)
51 NOTICE remanding case to *GENESEE COUNTY CIRCUIT COURT*. (DPer) (Entered: 10/06/2016)
52 NOTICE OF APPEAL by Liane Shekter Smith, Patrick Cook, Adam Rosenthal, Michael Prysby, Bradley Wurfel, Stephen Busch re 50 Order Remanding Case. Fee Status: No Fee Paid. (Barbieri, Charles) (Entered: 10/19/2016)
53 Joint MOTION to Stay Remand Order Pending Appeal by Stephen Busch, Patrick Cook, Michael Prysby, Adam Rosenthal, Liane Shekter Smith, Bradley Wurfel. (Attachments: # 1 Exhibit 1 − Dalton v Walgreen Co.) (Barbieri, Charles) (Entered: 10/19/2016)

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10/19/2016 10/24/2016 11/02/2016 11/03/2016 11/09/2016
01/13/2017
01/23/2017 07/13/2017
09/11/2017
11/27/2017 02/20/2018 04/17/2018

54 Certificate of Service re 52 Notice of Appeal. (DAll) (Entered: 10/19/2016)
Appeal Fee received for 52 Notice of Appeal filed by Liane Shekter Smith, Bradley Wurfel, Stephen Busch, Michael Prysby, Adam Rosenthal, Patrick Cook in the amount of $ $505.00 − Receipt No. DET097290. (Huff, W.) (Entered: 10/24/2016)
55 RESPONSE to 53 Joint MOTION to Stay Remand Order Pending Appeal filed by All Plaintiffs. (Attachments: # 1 Exhibit 1 − Notice of Remand) (Rivers, Beth) (Entered: 11/02/2016)
56 ATTORNEY APPEARANCE: Richard S. Kuhl appearing on behalf of State of Michigan Interested Non−Party (Kuhl, Richard) (Entered: 11/03/2016)
57 REPLY to Response re 53 Joint MOTION to Stay Remand Order Pending Appeal filed by Stephen Busch, Patrick Cook, Michael Prysby, Adam Rosenthal, Liane Shekter Smith, Bradley Wurfel. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − Bauman v Twp of Tittabawassee, # 3 Exhibit 2 − 6th Circuit Briefing Schedule) (Barbieri, Charles) (Entered: 11/09/2016)
58 ORDER from U.S. Court of Appeals − Sixth Circuit re 52 Notice of Appeal filed by Liane Shekter Smith, Bradley Wurfel, Stephen Busch, Michael Prysby, Adam Rosenthal, Patrick Cook [Appeal Case Number 16−2484] (Ahmed, N) (Entered: 01/13/2017)
59 ORDER denying 53 Motion to Stay. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 01/23/2017)
60 ORDER from U.S. Court of Appeals − Sixth Circuit re 52 Notice of Appeal filed by Liane Shekter Smith, Bradley Wurfel, Stephen Busch, Michael Prysby, Adam Rosenthal, Patrick Cook [Appeal Case Number 16−2484] (Ahmed, N) (Entered: 07/13/2017)
61 OPINION and JUDGMENT from U.S. Court of Appeals − Sixth Circuit re 52 Notice of Appeal filed by Liane Shekter Smith, Bradley Wurfel, Stephen Busch, Michael Prysby, Adam Rosenthal, Patrick Cook [Appeal Case Number 16−2484] (Ahmed, N) (Entered: 09/11/2017)
62 MANDATE from U.S. Court of Appeals − Sixth Circuit as to 61 Appeal Order/Opinion/Judgment [Appeal Case Number 16−2484] (Krause, S) (Entered: 11/27/2017)
63 LETTER from the US Supreme Court that a petition for writ of certiorari was filed on 2/13/18. [Supreme Court Case Number: 17−1144] [Court of Appeals Case Number: 16−2484] (DWor) (Entered: 02/21/2018)
64 LETTER from the US Supreme Court denying the petition for writ of certiorari [Supreme Court Case Number: 17−1144] [Court of Appeals Case Number: 16−2484] (SKra) (Entered: 04/17/2018)

 
 2:16-cv-11519-SFC-DRG Doc # 1 Filed 04/27/16 Pg 1 of 19 Pg ID 1

UNITED STATES DISTRICT COURT IN THE EASTERN DISTRICT OF MICIDGAN
SOUTHERN DIVISION

Melissa Mays, et a/., Plaintiffs,
v.
City of Flint, a municipal corporation, et a/., Defendants.

Case No:
Genesee County Circuit Court Case No. 16-106112-CZ
CLASS ACTION

JOINT NOTICE OF REMOVAL TO FEDERAL COURT AND CONSENT TO REMOVAL
Defendants Patrick Cook ("Cook"), Liane Shekter-Smith ("Shekter-Smith"), Stephen Busch ("Busch"), and Bradley Wurfel ("Wurfel") (collectively, the "Removing Defendants"), by and through their respective counsel, hereby remove this action from the Genesee County Circuit Court to the United States District Court for the Eastern District of Michigan pursuant to 28 U.S.C. §§ 1441, 1442 and 1446. In support of this Notice of Removal, the Removing Defendants state as follows:
BACKGROUND 1. On January 19, 2016, Plaintiffs filed this action against the Removing Defendants, among others, in the Genesee County Circuit Court. A copy of the Complaint is attached as Exhibit A.

2:16-cv-11519-SFC-DRG Doc # 1 Filed 04/27/16 Pg 2 of 19 Pg ID 2
2. These same Plaintiffs had previously filed a Class Action Complaint in the United States District Court for the Eastern District of Michigan. That federal Class Action Complaint is based on the same events as this action, names many of the same Defendants sued in this action, and is currently pending before this Court. A copy of the federal Class Action Complaint is attached as Exhibit B.
3. Defendants Cook, Shekter-Smith, Busch, and Wurfel are present or former employees of the Michigan Department of Environmental Quality ("MDEQ''), and are being sued for alleged actions and omissions that occurred during the course and scope of their employment. Defendant Cook was a Water Treatment Specialist assigned to the MDEQ's Lansing Community Drinking Water Unit. Defendant Shekter-Smith was Chief of MDEQ's Office of Drinking Water and Municipal Assistance. Defendant Busch was the MDEQ's Office of Drinking Water and Municipal Assistance Lansing District Supervisor. And, Defendant Wurfel was the MDEQ's Director of Communications.
4. Plaintiffs filed a First Amended Complaint on February 16, 20 16, a copy of which is attached as Exhibit C.
5. Defendant Cook acknowledged service of the First Amended Complaint by appearance on April 5, 2016. 1 Exhibit D. Defendants Shekter-Smith,
1 While the Court docket suggests that Defendant Cook was served via certified mail on February 29, 2016, Defendant Cook did not receive service on this date,
2

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Busch by way of appearance, and Wurfel similarly acknowledged service on April 18, 2016, April 8, 2016, and March 28, 2016, respectively. Exhibit E, Exhibit F, and Exhibit G. This joint notice of removal is filed within thirty (30) days of service upon these Removing Defendants, and is timely under 28 U.S.C. § 1446(b).
6. Only Counts I and II of the Amended Complaint apply to the Removing Defendants. Count I alleges that the Removing Defendants (along with other individual Defendants that consent to this removal), during the course and scope of their employment with the MDEQ, were purportedly grossly negligent in their alleged decision-making and their oversight of the City of Flint's monitoring, testing, and treatment of Flint's drinking water under the federal Safe Drinking Water Act ("SDWA"), 42 U.S.C. 300f et seq., and the United States Environmental Protection Agency's ("EPA's") Lead and Copper Rule ("LCR"), 40 C.F.R. Part 141 Subpart I. Exhibit C, ~~ 182-192.
7. Count II alleges "Intentional Misconduct Fraud and Assault and Battery and Intentional Infliction of Emotional Distress" against the Removing Defendants (and other individual Defendants consenting to this removal). Plaintiffs assert that Removing Defendants, during the course and scope of their employment with the MDEQ, committed tortious acts related to their alleged decision-making, public notifications, and oversight of monitoring, testing, and
and did not accept service in this lawsuit except through the Acknowledgement of Service filed on April 5, 2016.
3

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treatment of Flint's drinking water pursuant to the SDWA and LCR. Exhibit C, ~~ 193-201.
8. Plaintiffs have demanded a jury in this class action lawsuit. 9. As more fully described below, Plaintiffs' claims are removable to this Court under the federal officer removal statute (28 U.S.C. § 1442), and alternatively under the substantial federal question doctrine (28 U.S.C. § 1441). 10. In accordance with 28 U.S.C. § 1446(d), a notice of filing this Joint Notice of Removal and Consent to Removal and a copy of this Notice of Removal are being filed with the Genesee County Circuit Court. A copy of both notices will be served upon Plaintiffs. 11. Copies of all process, pleadings, and orders received by Removing Defendants are attached. Exhibit H. 12. By removing this action, Defendants do not waive any defenses, objections, or motions available under state or federal law.
REMOVAL UNDER 28 U.S.C. § 1442 13. The federal officer removal statute permits a defendant to remove a state-court action brought against "any [federal] agency or any [federal] officer (or any person acting under that officer) ... for or relating to any act under color of such office ...." 28 U.S.C. § 1442.
4

2:16-cv-11519-SFC-DRG Doc # 1 Filed 04/27/16 Pg 5 of 19 Pg ID 5
14. "The federal officer removal statute is not 'narrow' or 'limited.' At 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." Willingham v. Morgan, 395 U.S. 402, 406-07 (1969).
15. A defendant who is not a federal officer or federal agency must satisfy three elements to remove under the federal officer statute: (1) the defendant is a person acting under a federal officer or agency; (2) the defendant performed the actions for which the defendant is being sued under the direction of a federal officer or agency; and (3) the defendant has raised a colorable federal defense. See, e.g., Bennett v. MIS Corp., 601 F.3d 1076, 1085 (6th Cir. 2010) (citation omitted); Mesa v. California, 489 U.S. 121, 138-39 (1989).
16. In this case, the Removing Defendants satisfy all three elements of the federal officer removal statute.
I. The Removing Defendants are Persons Acting Under Federal Officers and Agencies.
17. The Removing Defendants are "persons," 1 U.S.C. § 1, whose authority to regulate Michigan's public drinking water systems is derived from the SDWA, LCR, and other EPA regulations, and whose actual regulation of Michigan's public drinking water systems occurs under the EPA's direction, control, and close supervision.
5

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II. The Removing Defendants' Actions For Which They Are Being Sued Were Performed Under the Direction of a Federal Officer or Agency.
18. The SDWA directs the EPA to promulgate national primary drinking water standards and to regulate public water systems. See 42 U.S.C. § 300f et seq.
19. Specifically, with respect to the regulation of lead and copper, the EPA, in 1991, promulgated national primary drinking water regulations ("NPDWR.s") for controlling lead and copper in public drinking water. 56 Fed. Reg. 26460 (June 7, 1991). These regulations are known as the "Lead and Copper Rule" or "LCR" and are found at 40 C.F.R. §§ 141.80, et seq. The EPA has since amended the LCR several times, most notably in 2000 and 2007. See, e.g., 65 Fed. Reg. 1950 (Jan. 12, 2000); 72 Fed. Reg. 57782 (Oct. 10, 2007).
20. The EPA's LCR applies to public water systems such as the City of Flint. See 40 C.F.R. § 141.80(a). Generally speaking, it requires those water systems to monitor the levels of lead and copper at consumers' taps and, under a number of different circumstances, requires those systems to employ various treatment techniques such as corrosion control treatment, source water treatment, lead service line replacement, and public education. 40 C.F.R. §§ 141.80(b)- (h)?
2 Numerous scholars and practitioners have characterized the LCR as complex and recognized that many of its provisions are confusing and ambiguous. Most recently, the EPA and its Office of General Counsel determined, after several months of review, that "there are differing possible interpretations of the LCR with
6

2:16-cv-11519-SFC-DRG Doc # 1 Filed 04/27/16 Pg 7 of 19 Pg ID 7
21. The SDWA authorizes the EPA to delegate primary enforcement responsibility for public drinking water systems to states where the EPA determines, inter alia, that the state: (1) has adopted drinking water regulations that are no less stringent than the national primary drinking water regulations promulgated by the EPA; (2) has adopted and is implementing adequate procedures for the enforcement of such State regulations, including conducting such monitoring and making such inspection as required by the EPA; and (3) will keep such records and make such reports with respect to its activities as required by the EPA. See 42 U.S.C. § 300g-2; see also 40 C.P.R.§§ 142.10, 142.11.3
22. The SDWA, however, reserves tremendous oversight authority to the EPA, including mandatory EPA intervention in the form of notifications, advice, technical assistance, and, failing timely and sufficient state action, enforceable orders and inspections to bring water systems into compliance with federal standards. See 42 U.S.C. § 300g-3; see also 40 C.P.R. §§ 141.82(i), 141.83(b)(7), 142.19, 142.30, and 142.34.
23. By way of example, each state with primary enforcement responsibility is required to submit to EPA detailed quarterly and annual reports
respect to how the rule's optimal corrosion control treatment procedures" applied to Flint's water system. Exhibit I. 3 EPA first granted the Michigan Department of Public Health primary enforcement responsibility over the regulation of Michigan's public drinking water systems in 1977. 42 Fed. Reg. 44835 (Sept. 7, 1977).
7

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regarding the regulation of public drinking water systems including detailed information regarding each system's compliance with the treatment techniques for lead and copper. See 40 C.F.R. §§ 142.15, 142.19. All of these reports are publicly available and the EPA is required to, at least annually, review each state's submittals for compliance with EPA requirements. 40 C.F.R. §§ 142.17(a)(1).
24. If the EPA determines that a state no longer meets its requirements, the EPA is required to initiate proceedings to withdraw primacy approval. See 40 C.P.R. §§ 142.17(a)(2). If the EPA believes a state has abused its discretion in making corrosion control or source water treatment determinations in a substantial number of cases, or in cases affecting a substantial population, the EPA may issue an order establishing federal treatment requirements for a public water system. See 40 C.P.R.§ 142.19(a) (emphasis added).
25. By way of further example whenever a state revises its approved primacy program in response to new or revised federal regulations, including those regulations which relate to lead and copper, the state must submit a request to the Administrator for approval of the program revision. See 40 C.F.R. §§ 142.12(a)(1), 142.16(d). And, before approving the revisions, the EPA must publish notice and provide an opportunity for a public hearing. See 40 C.P.R.§§ 142.13.
26. By way of even further example, whenever the EPA finds that a public water system is not in compliance with any primary drinking water
8

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regulation, the EPA "shall provide advice and technical assistance to such State
and public water system as may be appropriate to bring the system into compliance
by the earliest feasible time." 40 C.F.R. §§ 142.30.
27. Recognizing the complexity and ambiguity of the LCR, the EPA's
commentary to its 2007 amendments to the LCR states that the EPA will provide
guidance to help systems identify source water changes that could impact optimal
corrosion control. 72 Fed. Reg. 57782, 57789 (Oct. 10, 2007). The EPA has
responded to this mandate by issuing at least eleven major guidance documents,
directing all aspects of a state's implementation ofthe LCR:
• Lead and Copper Rule Guidance Manual: Volume I: Monitoring (Sept. 1991);
• Lead and Copper Rule Guidance Manual: Volume II: Corrosion Control Treatment (EPA 811-B-92-002) (Sept. 1992);
• Guidance Manual for Selecting Lead and Copper Control Strategies (Jan. 1997);
• How to Determine Compliance with Optimal Water Quality Parameters as Revised by the Lead and Copper Minor Revisions (EPA 815-R-99019) (Feb. 2001);
• Lead and Copper Monitoring and Reporting Guidance for Public Water Systems, EPA-816-R-02-009 (Feb. 2002);
• Lead in Drinking Water Regulation: Public Education Guidance for Community Water Systems, EPA 816-R-02-010 (June 2002);
• Revised Guidance Manual for Selecting Lead and Copper Control Strategies (March 2003);
• Lead and Copper Rule: 2007 Short-Term Regulatory Revisions and Clarifications; State Implementation Guidance, EPA 816-R-08-009 (June 2008);
9

2:16-cv-11519-SFC-DRG Doc # 1 Filed 04/27/16 Pg 10 of 19 Pg ID 10
• Implementing the Lead Public Education Provision of the Lead and Copper Rule: A Guide for Community Water Systems (June 2008);
• Lead and Copper Rule: Monitoring and Reporting Guidance for Public Water Systems, EPA 816-R-10-004 (March 2010); and
• Optimal Corrosion Control Treatment Evaluation Technical Recommendations for Primacy Agencies and Public Water Systems (March 2016).
28. Furthermore, EPA's direction and control over the MDEQ's implementation of the SOWA and LCR is most clearly demonstrated by the EPA's January 21, 2016 emergency order, whereby the EPA began monitoring and testing the Flint water system and ordered the MDEQ to take specific actions related to Flint. Exhibit J.
29. The Removing Defendants are being sued for allegedly failing to adhere to federal law, due to their alleged lack of compliance with the SDWA and LCR's detailed monitoring, testing, sampling, and notification requirements in overseeing the Flint water system, as administered by Removing Defendants under the EPA's direction and control.
30. In Clio Convalescent Center v. Mich. Dept. ofConsumer and Industry Services, 66 F. Supp. 2d 875, (E.D. Mich. 1999), this Court held that a Michigan agency was entitled to federal officer removal under 28 U.S.C. § 1442, finding that since the state agency was sued for "implementing federal regulations pursuant to
10

2:16-cv-11519-SFC-DRG Doc # 1 Filed 04/27/16 Pg 11 of 19 Pg ID 11
its obligation under statutes, regulations, and/or contract, [the agency] was acting as [the federal agency's] agent." /d. at 877.
31. Similar to the state agency in Clio, the Removing Defendants are entitled to federal officer removal because the MDEQ functions as an agent of the EPA to implement the SDWA and LCR. The MDEQ has entered into an agreement with the EPA to assure compliance with the SDWA and LCR, has the authority to investigate whether federal law has been violated by a public water system, and is obligated to forward monitoring results, consumer confidence reports, and SDWA and LCR violations to the EPA. !d. at 876; see also City ofSt. Louis v. Velsicol Chemical Corp., 708 F. Supp. 2d 632, 661-662 (E.D. Mich. 2010) (holding that federal officer removal was proper where defendant acted under EPA direction and control and assisted the EPA in performing tasks the EPA would otherwise be obligated to perform).
32. The Removing Defendants are, therefore, properly characterized as the EPA's agents, acting under the EPA's direction and control to assist with implementing and enforcing the federal SDWA and LCR. Furthermore, the Removing Defendants' alleged actions and inactions in this case were not only taken pursuant to EPA's LCR, guidance documents, training manuals, quarterly and annual reviews, but they were also guided by repeated written and verbal
11

2:16-cv-11519-SFC-DRG Doc # 1 Filed 04/27/16 Pg 12 of 19 Pg ID 12
dialogue with a number of EPA officers who advised and oversaw the Removing Defendants' state-based regulation of the Flint water system.
III. Removing Defendants Have Raised a Colorable Federal Defense. 33. The Removing Defendants have colorable federal defenses including: preemption of Plaintiffs' claims by the SDWA (Matoon v. Pittsfield, 980 F.2d 1 (1st Cir. 1992)); absolute immunity (Butz v. Economou, 438 U.S. 478 (1978)); and qualified immunity (Phillips v. Roane County, 534 F.3d 531, 538 (6th Cir. 2008) (holding that government officials sued in their individual capacity can be shielded from liability by qualified immunity)). 34. Venue may be proper in this district under 28 U.S.C. § 1442(a), because the Genesee County Circuit Court is located in the Eastern District of Michigan, Southern Division. 35. For all these reasons, removal is proper under 28 U.S.C. § 1442.
REMOVAL UNDER 28 U.S.C. § 1441 36. A federal court must generally determine if a claim arises under federal law based on the well-pleaded complaint, but substantial federal question jurisdiction is an exception to the well-pleaded complaint rule. Mikulski v. Centerior Energy Corp., 501 F.3d 555, 560 (6th Cir. 2007). The substantial federal question doctrine provides that "a state law cause of action may actually arise under federal law, even though Congress has not created a private right of action, if
12

2:16-cv-11519-SFC-DRG Doc # 1 Filed 04/27/16 Pg 13 of 19 Pg ID 13
the vindication of the right under state law depends on the validity, construction, or effect of federal law." Id. at 565 (internal citations omitted).
37. Under the substantial federal question doctrine, federal jurisdiction exists when a "state-law claim necessarily raises a federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing a congressionally approved balance of federal and state judicial responsibilities." Grable v. Sons Metal Products, Inc. v. Darue Engineering and Manufacturing, 545
u.s. 308, 314 (2005).
38. At the heart of Plaintiffs' Complaint are allegations that the drinking water provided to Flint residents was not safe and did not meet federal water quality standards, specifically standards related to lead. These and other Defendants were allegedly grossly negligent; committed fraud, assault, and battery; and inflicted emotional distress by failing to require, ensure, implement, and advise the public regarding compliance with federal water quality standards and corrosion control requirements.
39. The SDWA governs drinking water quality and provides detailed regulations related to water quality standards, monitoring, and testing requirements. The LCR specifically regulates lead in drinking water and provides detailed standards, monitoring, and testing protocols related to lead in drinking water. For additional information on the SDWA and LCR, see above~~ 18-28.
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40. Plaintiffs' Complaint both specifically4 and implicitly5 alleges that these Removing Defendants (along with other individual Defendants consenting to this removal) had duties to Plaintiffs based on the federal SDWA and LCR standards, regulations, monitoring, and testing requirements that were purportedly not followed and give rise to Plaintiffs' various causes of action.
41. Plaintiffs' claims are inextricably intertwined with the construction, interpretation, and effect of the SDWA and the LCR. If these and other Defendants establish that these federal laws and regulations were not violated, Plaintiffs' claims against these Removing Defendants are defeated.
42. Plaintiffs' gross negligence claims depend on a question of federal law, primarily whether these Removing Defendants complied with the SDWA and LCR during their oversight of the Flint water system. There are no alternative theories supporting gross negligence that do not implicate the SDWA and/or LCR, as the Removing Defendants are being sued for carrying out the EPA's duty, as delegated to Removing Defendants, to ensure that public water systems such as Flint comply with the SDWA and LCR.
43. This is not a garden variety state law tort action that merely references a federal law or statute. This litigation stems from a unique situation involving individual governmental defendants implementing federal lead regulations, and
4 Exhibit C, 1~ 74, 82, 84, 86, 95, 96, 99, 134, 160, 166, and 188. 5 Exhibit C, 1~ 1, 2, 8, 52, 77, 80, 81, 83, 85, 93, 94, 98, 123, 124, 125, 128, 130, 132, 135, 142, 143, 154, 184, and 187.
14

2:16-cv-11519-SFC-DRG Doc # 1 Filed 04/27/16 Pg 15 of 19 Pg ID 15
removal of this action will not open the door to removal of a vast number of purely state law claims.
44. Whether these and other Defendants violated the SDWA and LCR is disputed. The EPA has admitted that the LCR is ambiguous and subject to different possible interpretations and constructions when applied to this particular situation. As recently as November 3, 2015, the Director ofEPA's Office of Drinking Water wrote a memo to the EPA's Regional Water Division Directors stating: "After reviewing the rule with our Office of General Counsel, it appears that there are differing possible interpretations of the LCR with respect to how the rule's optimal corrosion control treatment procedures apply to this situation, which may have led to some uncertainty with respect to the Flint water system." Exhibit I.
45. There is a substantial need for uniform interpretation of the SDWA and LCR as it applies to Flint, and the other 155,000 public water systems subject to the SDWA and LCR, that provide water to almost all Americans across the United States.
46. As the Court pointed out in Harding-Wright v. D.C. Water and Sewer Auth., 350 F. Supp. 2d 102, 107 (D.D.C. 2005), "federal jurisdiction over a state law claim is appropriate when necessary to protect against inconsistent interpretation of a federal statutory regime." There is a substantial federal interest in resolving the disputed interpretations and effect of the SDWA and LCR to
15

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ensure accurate, consistent application of the federal statutes and regulations across the nation and across the various lawsuits relating to Flint's drinking water.
47. This Court's exercise of jurisdiction over this case will not disturb a congressionally approved balance of federal and state judicial responsibilities. Congress has placed the regulation of drinking water within the federal realm through promulgation of the SDWA, and via the EPA's federal oversight, direction, and authority over the SDWA regulatory scheme.
48. To the extent some of Plaintiffs' claims do not involve a substantial federal question, this Court has supplemental jurisdiction over Plaintiffs state law claims under 28 U.S.C. § 1367(a).
49. Venue may be proper in this district under 28 U.S.C. § 1441, because the Genesee County Circuit Court is located in the Eastern District of Michigan, Southern Division.
WHEREFORE, Defendants Patrick Cook, Liane Shekter-Smith, Stephen Busch, and Bradley Wurfel, respectfully request that this action proceed in this Court as an action properly removed.
16

2:16-cv-11519-SFC-DRG Doc # 1 Filed 04/27/16 Pg 17 of 19 Pg ID 17

Respectfully submitted,

Foster, Swift, Collins & Smith, P.C. Attorneys for Defendant Patrick Cook

Fraser, Trebilcock, Davis & Dunlap Attorneys for Defendant Liane Shekter Smith

By: Is/ Charles E. Barbieri
Charles E. Barbieri (P31 793) Bruce A. Vande Vusse (P28547) Ray H. Littleton II (P69733) Allison M. Collins (P78849) 313 S. Washington Square Lansing, MI 48933 (517) 371-8100 cbarbieri@fosterswift.com

By:/s/ Thaddeus E. Morgan (w/permission) Thaddeus E. Morgan (P47394) 124 West Allegan Street, St 1000 Lansing, MI 48933 (517) 482-5800 tmorgan@fraserlawfirm.com

Clark Hill PLC Attorneys for Bradley Wurfel
By: Is/ Michael Pattwell (w/permission) Jay M. Berger (P57663) Michael J. Pattwell (P72419) 212 E. Grand River Ave. Lansing, Michigan 48906 (517) 318-3043 jberger@clarkhill.com mpattwell@clarkhill.com

Kotz Sangster Wysocki, P.C. Attorneys for Stephen Busch
By: /s/ Phillip Grashoff(w/permission) Phillip A. Grashoff, Jr. (P 14279) 36700 Woodward Ave., Suite 202 Bloomfield Hills, MI 48304 (248) 646-1050 pgrashoff@kotzsangster.com

Dated: April27, 2016

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2:16-cv-11519-SFC-DRG Doc # 1 Filed 04/27/16 Pg 18 of 19 Pg ID 18

ALL INDIVIDUAL MDEO DEFENDANTS CONSENT TO AND JOIN IN TillS JOINT NOTICE OF REMOVAL
All individual MDEQ consent to and join in this Joint Notice of Removal. It

1s understood, based on previous conversations, that Flint Defendants will

separately consent. Therefore, removal under 28 U.S.C. § 1441 is permitted

pursuant to 28 U.S.C. § 1446(b)(2)(b), because all Defendants implicated 1n

Counts I and II that have been served in this lawsuit consent and join 1n

Defendants' Joint Notice of Removal, as indicated by their signatures below.

WHEREFORE, the below designated Defendants respectfully request that

this Court exercise jurisdiction over this action and grant such other relief as this

Court deems proper.

Respectfully Submitted,

Dated: Apri127, 2016

Foster, Swift, Collins & Smith, P.C. Attorneys for Michael Prysby and Adam Rosenthal

By: Is/ Charles E. Barbieri Charles E. Barbieri (P31793) Bruce A. Vande Vusse (P28547) Ray H. Littleton II (P6973 3) Allison M. Collins (P78849) 313 S. Washington Square Lansing, MI 48933 (517) 371-8100 cbarbieri@fosterswift.com

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CERTIFICATE OF SERVICE
I hereby certify that on April 27, 2016, I directed Wendy Paul to electronically file the foregoing with the Clerk of the Court using the ECF system. A copy of the foregoing will be served upon all parties of record by regular mail.

Dated: April 27, 2016

s/ Charles E. Barbieri Charles E. Barbieri (P31793) Foster, Swift, Collins & Smith, P.C. 313 S. Washington Square Lansing, MI 48933-2193 (517) 371-8155 cbarbieri@fosterswift.com

19

 
 5:16-cv-11519-JCO-MKM Doc # 50 Filed 10/06/16 Pg 1 of 15 Pg ID 2116

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MELISSA MAYS, et al.,

Plaintiffs, v. CITY OF FLINT, et al.,

Case No. 16-11519 Hon. John Corbett O’Meara

Defendants. ___________________________/

OPINION AND ORDER GRANTING PLAINTIFFS’ MOTION TO REMAND Before the court is Plaintiffs’ motion for remand, which has been fully briefed. Pursuant to L.R. 7.1, the court did not hear oral argument, as this matter has been thoroughly and sufficiently presented in the briefs.
BACKGROUND FACTS This case arises out of the water crisis in Flint, Michigan, in which the city’s drinking water became tainted with lead and other contaminants after the city switched its drinking water source to the Flint River to reduce costs. The complaint was filed as a class action in state court by named Plaintiffs Melissa Mays, Michael Adam Mays, Jacqueline Pemberton, Keith John Pemberton, Elnora Carthan, and Rhonda Kelso against the City of Flint, the Receivership Transition

5:16-cv-11519-JCO-MKM Doc # 50 Filed 10/06/16 Pg 2 of 15 Pg ID 2117
Advisory Board, Natasha Henderson, Eden Victoria Wells, M.D., Stephen Busch, Liane Shekter-Smith, Adam Rosenthal, Patrick Cook, Michael Prysby, Bradley Wurfel, Howard Croft, Michael Glasgow, and Daugherty Johnson. The individual defendants are current or former employees of the City of Flint or the State of Michigan.
Plaintiffs, who intend to represent a class of thousands of Flint water users, have set forth state claims of gross negligence, fraud, assault and battery, and intentional infliction of emotional distress. Plaintiffs contend that Defendants were grossly negligent in approving a switch in Flint’s drinking water source to the Flint River and in monitoring the lead levels in the drinking water supply after that change. See Compl. at ¶ 1. Plaintiff further allege that Defendants, “in bad faith, assured Flint water users that the Flint River water was safe to consume when they were on actual notice and had reason to believe that the water was in fact unfit for human consumption.” Compl. at ¶ 2.
Defendants Cook, Shekter-Smith, Busch, and Wurfel, who are current or former employees of the Michigan Department of Environmental Quality (“MDEQ”), filed a notice of removal of this action from Genesee County Circuit
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Court.1 The MDEQ Defendants contend removal is proper under 28 U.S.C. § 1442, the federal officer removal statute, and under 28 U.S.C. § 1441, based upon a substantial federal question. Plaintiffs have filed a motion to remand, arguing that this court lacks jurisdiction over their complaint.
Plaintiffs’ claims against the individual MDEQ defendants are relevant to the motion to remand. With respect to Stephen Busch, the District Supervisor assigned to the Lansing District Office of the MDEQ, Plaintiffs allege that he acted in a grossly negligent manner when he “knowingly created, increased and prolonged the hazards by approving the decision to switch the water source when he was on notice of the dangers associated with same.” Compl. at ¶ 20. Plaintiffs further allege that Busch “falsely reported that anti-corrosive agents had been used to treat the highly corrosive Flint River water and thereby provided assurances to Plaintiffs and the public that the Flint River water was safe when he was on actual notice, and/or had reason to believe, that these assurances were false and/or baseless.” Id. at ¶ 21.
Defendant Patrick Cook was the Water Treatment Specialist assigned to the
1 All Defendants have not joined in the MDEQ Defendants’ notice of removal. Although the “rule of unanimity” generally requires all defendants to join in a notice of removal, this is not required under the federal officer removal statute, 28 U.S.C. § 1442(a)(1). See, e.g., Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1253 (9th Cir. 2006).
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Lansing Community Drinking Water Unit of the MDEQ. Plaintiffs allege that he was grossly negligent in approving the decision to switch Flint’s drinking water source and in failing “to properly monitor and test the Flint River water; he falsely reported to the EPA that the Flint River water was treated with anti-corrosive chemicals; and he [falsely] provided assurances to Plaintiffs that the Flint River was safe.” Compl. at ¶¶ 22, 23.
Defendant Michael Prysby was the Engineer assigned to District 11 (Genesee County) of the MDEQ. Plaintiffs allege Prysby was grossly negligent in approving the decision to switch the water source and in failing to properly monitor and test the Flint River water. Plaintiffs also allege that Prysby provided false assurances to the public that the Flint River water was safe. Compl. at ¶ 24.
Defendant Bradley Wurfel was the Director of Communication for the MDEQ. Plaintiffs allege that Wurfel was “responsible for the deliberate, misleading and inaccurate communications that increased and prolonged the hazards, threats, and dangers that arose by replacing safe drinking water with a highly toxic alternative.” Compl. at ¶ 26.
Defendant Liane Shekter-Smith was the Chief of the Office of Drinking Water and Municipal Assistance for the MDEQ. Plaintiffs allege that ShekterSmith was “grossly negligent in that she knowingly approved of, and thereby
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participated in, the decisions that created, increased and prolonged the hazards, threats and dangers that arose by replacing safe drinking water with a highly toxic alternative. She further provided false assurances to Plaintiffs and the entire Plaintiff class that the Flint River water was safe.” Compl. at ¶ 27.
Defendant Adam Rosenthal was a Water Quality Analyst assigned to the Lansing District Office of the MDEQ. Plaintiffs allege he was grossly negligent in participating in decisions that “created increased and prolonged the hazards” that arose from the change in water source. Plaintiffs further allege that Rosenthal provided false assurances that the Flint River water was safe. Compl. at ¶ 29.
LAW AND ANALYSIS In their notice of removal, the MDEQ Defendants contend that they are entitled to remove under the federal officer statute because they were acting as agents of the U.S. Environmental Protection Agency in enforcing the Safe Drinking Water Act (“SDWA”). Defendants further argue that Plaintiffs’ complaint necessarily raises a federal issue, establishing jurisdiction under the substantial federal question doctrine. “Federal courts are courts of limited jurisdiction,” possessing “only that power authorized by Constitution and statute.” Gunn v. Minton, 133 S.Ct. 1059, 1064 (2013) (citation omitted). The party seeking removal bears the burden of
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demonstrating that the court has jurisdiction. See Eastman v. Marine Mechanical Corp., 438 F.3d 544, 549 (6th Cir. 2005). I. Federal Officer Removal
The federal officer removal statute permits removal of actions brought against
(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. . . . 28 U.S.C. § 1442(a)(1) (emphasis added). From its origin in 1815, the purpose of this statute has been to protect the operations of the federal government from state interference. See Mesa v. California, 489 U.S. 121, 125-26 (1989); Watson v. Philip Morris Co., Inc., 551 U.S. 142, 150-51 (2007). For example, in the 1830s South Carolina passed a Nullification Act declaring federal tariff laws unconstitutional and authorizing prosecution of federal agents who collected the tariffs. See Watson, 551 U.S. at 148. The removal statute allowed federal officers to defend themselves “where the authority of [federal] law was recognised.” Id. (quoting Sen. Daniel Webster, 9 Cong. Deb. 461 (1833)). As the Supreme Court has explained, the federal government can act only through its officers and agents, and they must act within the States. If, when thus acting, and
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within the scope of their authority, those officers can be arrested and brought to trial in a State court, for an alleged offense against the law of the State, yet warranted by the Federal authority they possess, and if the general government is powerless to interfere at once for their protection – if their protection must be left to the action of the State court – the operations of the general government may at any time be arrested at the will of one of its members. Mesa, 489 U.S. at 126 (citations omitted). The federal officer removal statute also applies to those private persons who act “as an assistant to a federal official in helping that official to enforce federal law.” Watson, 551 U.S. at 151. In such cases, the removing party must establish that (1) he “acted under a federal official”; (2) he performed the action for which he is being sued “under color of federal office”; and (3) he raised a colorable federal defense. Bennett v. MIS Corp., 607 F.3d 1076, 1086-89 (6th Cir. 2010). A private person “acting under” a federal official “must involve an effort to assist, or help carry out, the duties or tasks of the federal superior.” Watson, 551 U.S. at 152 (emphasis in original). To show that the actions in dispute were performed “under color of federal office,” Defendants “must show a nexus, a causal connection between the charged conduct and the asserted official authority.” Bennett, 607 F.3d at 1088 (citations omitted). “In other words, the removing party must show that it is being sued because of the acts it performed at the direction of
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the federal officer.” Id. See also In re MTBE Prods. Liability Litig., 488 F.3d 112, 124-25 (2d Cir. 2007) (“Critical under the statute is to what extent defendants acted under federal direction at the time they were engaged in the conduct now being sued upon.”); Mesa, 489 U.S. at 131-32 (noting that the defendant “must by direct averment exclude the possibility that [plaintiff’s suit] was based on acts or conduct of his not justified by his federal duty”).
Defendants do not allege that they are being sued for actions taken at the specific direction of EPA officials. Rather, they suggest that the extensive interaction between the MDEQ and the EPA after Flint switched its water source shows that they were “acting under” the EPA. Although it appears that the EPA provided oversight and guidance to the MDEQ, this does not establish that MDEQ officials were acting pursuant to federal direction, as required for federal officer removal. See Watson, 51 U.S. at 153. See also Holdren v. Buffalo Pumps, Inc., 614 F. Supp.2d 129, 149 (D. Mass. 2009) (“[A] defendant must show that it acted at the federal government’s command.”); Anderson v. Hackett, 646 F. Supp.2d 1041, 1054 (S.D. Ill. 2009) (“[A] removing defendant must show that at all times it was acting under express orders, control and directions of federal officers, and that its involvement in conduct giving rise to state-court liability was strictly and solely at federal behest.”); New Jersey Dept. of Environ. Protection v. Exxon Mobil
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5:16-cv-11519-JCO-MKM Doc # 50 Filed 10/06/16 Pg 9 of 15 Pg ID 2124
Corp., 381 F. Supp.2d 398, 404 (D. N.J. 2005) (“[T]his control requirement can be satisfied by strong government intervention and the threat that a defendant will be sued in state court based upon actions taken pursuant to federal direction.”); Freiberg v. Swinerton & Walberg Prop. Servs., Inc., 245 F. Supp.2d 1144, 1155 (D. Colo. 2002) (“What they must establish for purpose of the § 1442(a)(1) [analysis] is that they government authority under which they worked required them to act as they did.”).
The EPA issued an Emergency Administrative Order on January 21, 2016, addressing the Flint water crisis. In that order, the EPA found that the “City, MDEQ, and the State have failed to take adequate measures to protect public health” and “there continue to be delays in responding to critical EPA recommendations and in implementing the actions necessary to reduce and minimize the presence of lead and other contaminants in the water supply both now and in the near future.” Defs.’ Notice of Removal, Ex. J at ¶ 34. The EPA order indicates that the MDEQ was not acting as an agent of the EPA, but was viewed by the EPA as “an instrumentality of the State.” Id. at ¶ 41. This distinguishes this case from Clio Convalescent Center v. Michigan Dept. of Consumer and Indus. Servs., 66 F. Supp.2d 875, 876-77 (E.D. Mich. 1999), in which the state agency had entered into a contract with the Secretary of Health and
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Human Services to act on behalf the Secretary. In Clio, removal was proper because the state agency was acting as the Secretary’s agent pursuant to a contract. There is no allegation of a similar relationship here.
Moreover, MDEQ’s authority over public water supplies is derived from state law – the Michigan Safe Drinking Water Act. See M.C.L. §§ 325.1002, 325.1003 (establishing that the MDEQ has “power and control over public water supplies and suppliers of water”). Although the SDWA delegates primary enforcement responsibility for public water systems to the states, it does so only when states have adopted their own sufficiently stringent drinking water regulations. See 42 U.S.C. §§ 300g-2, 300g-3. Defendants have not cited authority for the proposition that the SDWA creates an agency relationship between state environmental agencies and the EPA. Cf. Northern Colorado Water Conservancy District v. Board of Cty. Commissioners of the Cty. of Grand, 482 F. Supp. 1115, (D. Colo. 1980) (county commissioners and regional political entity not agents of the EPA under Clean Water Act).
The MDEQ Defendants further argue that they acted in compliance with the SDWA and its regulations, which they suggest did not require immediate optimized corrosion control after the switch to the Flint River water. See Defs.’ Br. at 34-35 & n.8. In other words, MDEQ contends that its approval and
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monitoring of Flint’s drinking water source was in accordance with federal standards. The fact that MDEQ officials may have complied with federal law, however, does not transform them into federal officers. Nor does MDEQ’s alleged compliance with or enforcement of federal law form the basis for Plaintiffs’ claims. Rather, Plaintiffs claim that Defendants negligently approved the switch to Flint River water, failed to properly monitor and test the drinking water supply, and falsely assured the public the water was safe. Defendants have not identified how the SDWA, federal regulations, or federal officials required them to take the course of action they did. At most, Defendants suggest their actions were permitted by federal law, which is insufficient under the precedent cited above.
The history, precedent, and language of the statute do not support removal in this case. Because Defendants have not demonstrated that they “acted under a federal official” or performed the actions for which they are being sued “under color of federal office,” removal is not proper under 28 U.S.C. § 1442(a)(1). II. Substantial Federal Question
Defendants also contend that removal is proper because Plaintiffs’ complaint raises a substantial federal question. District courts have original jurisdiction over “actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. See also 28 U.S.C. § 1441(b). A case can “arise under” federal law
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in two ways: when federal law creates the cause of action asserted, or when a state-
law claim necessarily raises a substantial federal issue. Gunn v. Minton, 133 S.Ct.
1059, 1064-65 (2013). Defendants allege jurisdiction under the latter method,
which the Supreme Court has referred to as a “special and small category” of cases.
Id.
In determining whether this case fits into that “slim” category, the court
considers whether the “state-law claim necessarily raise[s] a stated federal issue,
actually disputed and substantial, which a federal forum may entertain without
disturbing any congressionally approved balance of federal and state judicial
responsibilities?” Gunn, 133 S.Ct. at 1065 (quoting Grable & Sons Metal Prods.,
Inc. v. Darue Engin. & Mfg., 545 U.S. 308, 314 (2005)).
That is, federal jurisdiction over a state law claim will lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress. Where all four of these requirements are met, we held, jurisdiction is proper because there is a “serious federal interest in claiming the advantages thought to be inherent in a federal forum,” when can be vindicated without disrupting Congress’s intended division of labor between state and federal courts.
Id. (citing Grable, 545 U.S. at 313-14).
Plaintiffs have alleged claims of gross negligence, fraud, assault and battery,
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and intentional infliction of emotional distress. As this court concluded in a similar case, these “garden-variety” state tort claims do not raise a substantial federal issue. See Bell v. Lockwood, Andrews & Newnam, No. 16-10825 (E.D. Mich. Apr. 13, 2016) (Docket No. 17). The court’s analysis in Bell controls here.
Defendants contend that a federal issue is raised because the SDWA and its regulations provide the source of their duty to Plaintiffs. Even if Plaintiffs sought to demonstrate that Defendants were negligent because they failed to comply with the SDWA or its regulations, this does not raise a substantial federal issue. See Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 813-817 (1986) (“[T]he presence of the federal issue as an element of the state tort is not the kind of adjudication for which jurisdiction would serve congressional purposes and the federal system.”); Hampton v. R.J. Corman R.R. Switching Co. LLC, 683 F.3d 708, 712 (6th Cir. 2012) (no federal jurisdiction when plaintiff alleged defendant violated federal statute and regulations and was thus presumptively negligent under state law).
In sum, Plaintiffs have alleged claims under state law against state officials. Defendants have not established that they are entitled to remove based upon either a substantial federal question or the federal officer statute. III. Attorney Fees
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Plaintiff seeks attorney’s fees pursuant to 28 U.S.C. § 1447(c), which provides that an “order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.” Id. “Absent unusual circumstances, courts may award attorney’s fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005). “A defendant lacks an objectively reasonable basis for removal when well-settled case law makes it clear that federal courts lack jurisdiction to hear the case.” A Forever Recovery, Inc. v. Twp. of Pennfield, 606 F. App’x 279, 281 (6th Cir. 2015).
Although the court finds that Defendants’ arguments are not meritorious, it does not find that Defendants lacked an objectively reasonable basis for removal under the federal officer statute. Cf. Boler, supra (awarding attorney’s fees because defendants lacked an objectively reasonable basis to remove on substantial federal question theory). Accordingly, the court will not award attorney’s fees.
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ORDER IT IS HEREBY ORDERED that Plaintiffs’ motion to remand is GRANTED and this matter is REMANDED to Genesee County Circuit Court.

Date: October 6, 2016

s/John Corbett O’Meara United States District Judge

I hereby certify that a copy of the foregoing document was served upon counsel of record on this date, October 6, 2016, using the ECF system.
s/William Barkholz Case Manager

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 5:16-cv-11519-JCO-MKM Doc # 49 Filed 09/13/16 Pg 1 of 2 Pg ID 2114

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MELISSA MAYS, et al.,

Plaintiffs,
v.
CITY OF FLINT, a municipal corporation, et al.,

Case No. 16-11519 Hon. John Corbett O’Meara

Defendants. _____________________________/

ORDER GRANTING MOTION TO HOLD SUMMARY DISPOSITION BRIEFING IN ABEYANCE

Before the court is Plaintiffs’ motion to hold summary disposition briefing in

abeyance, filed August 19, 2016. Defendants submitted a response on September 1,

2016. Plaintiffs seek to hold dispositive motion briefing in abeyance pending the

resolution of their motion to remand. The court agrees that resolution of the motion to

remand prior to briefing dispositive motions would serve judicial economy and would not

prejudice Defendants.

IT IS HEREBY ORDERED that Plaintiffs’ motion is GRANTED. If necessary,

Plaintiffs shall file responses to Defendants’ motions to dismiss within two weeks of the

court’s ruling on Plaintiffs’ motion to remand.

Date: September 13, 2016

s/John Corbett O’Meara United States District Judge

5:16-cv-11519-JCO-MKM Doc # 49 Filed 09/13/16 Pg 2 of 2 Pg ID 2115
I hereby certify that a copy of the foregoing document was served upon counsel of record on this date, September 13, 2016, using the ECF system.
s/William Barkholz Case Manager

 
 Case 5:16-cv-1C15a1se9:-J1C6O-2-4M8K4M DEoCcFumNeon. t6:171-f1iled 0F9il/e1d1:/1079/11P/2a0g1e7ID.22P0a6ge: P1age 1 of 27(1 of 27)

Deborah S. Hunt Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: September 11, 2017
Mr. Charles Edward Barbieri Ms. Allison Marie Collins Foster, Swift, Collins & Smith 313 S. Washington Square Lansing, MI 48933
Mr. Jay M. Berger Mr. Jordan Seth Bolton Clark Hill, 500 Woodward Avenue, Suite 3500 Detroit, MI 48226
Mr. Dennis K. Egan Kotz Sangster Wysocki 400 Renaissance Center, Suite 3400 Detroit, MI 48243
Mr. William H. Goodman Ms. Julie H. Hurwitz Ms. Kathryn Bruner James Goodman & Hurwitz 1394 E. Jefferson Avenue Detroit, MI 48207
Mr. Philip A. Grashoff Jr. Kotz Sangster 36700 Woodward Avenue, Suite 300 Bloomfield Hills, MI 48304
Ms. Krista Aimee Jackson Kotz Sangster Wysocki 40 Pearl Street, N.W., Ste 400 Grand Rapids, MI 49503
Ms. Deborah A. LaBelle 221 N. Main Street, Suite 300 Ann Arbor, MI 48104-0000

Case 5:16-cv-1C15a1se9:-J1C6O-2-4M8K4M DEoCcFumNeon. t6:171-f1iled 0F9il/e1d1:/1079/11P/2a0g1e7ID.22P0a7ge: P2age 2 of 27(2 of 27)

Ms. Cary S. McGehee Mr. Michael L Pitt Ms. Beth M. Rivers Pitt, McGehee, Palmer & Rivers 117 W. Fourth Street, Suite 200 Royal Oak, MI 48067
Mr. Thaddeus E. Morgan Mr. Michael H. Perry Fraser Trebilcock 124 W. Allegan Street, Suite 1000 Lansing, MI 48933
Mr. Paul Francis Novak Weitz & Luxenberg 719 Griswold, Suite 620 Detroit, MI 48226
Mr. Michael John Pattwell Clark Hill, 212 E. Grand River Avenue Lansing, MI 48906
Re: Case No. 16-2484, Melissa Mays, et al v. City of Flint, MI, et al Originating Case No. : 5:16-cv-11519
Dear Counsel,
The court today announced its decision in the above-styled case.
Enclosed is a copy of the court's opinion together with the judgment which has been entered in conformity with Rule 36, Federal Rules of Appellate Procedure.
Yours very truly,
Deborah S. Hunt, Clerk

cc: Mr. David J. Weaver Enclosures Mandate to issue.

Cathryn Lovely Deputy Clerk

Case 5:16-cv-1C15a1se9:-J1C6O-2-4M8K4M DEoCcFumNeon. t6:171-f2iled 0F9il/e1d1:/1079/11P/2a0g1e7ID.22P0a8ge: P1age 3 of 27(3 of 27)

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 17a0212p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

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.

│ ┘

No. 16-2484

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: August 2, 2017
Decided and Filed: September 11, 2017
Before: SUHRHEINRICH, GILMAN, and McKEAGUE, Circuit Judges. _________________

COUNSEL
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,

Case 5:16-cv-1C15a1se9:-J1C6O-2-4M8K4M DEoCcFumNeon. t6:171-f2iled 0F9il/e1d1:/1079/11P/2a0g1e7ID.22P0a9ge: P2age 4 of 27(4 of 27)

No. 16-2484

Mays et al. v. City of Flint, Mich. et al.

Page 2

Cary S. McGehee, PITT MCGEHEE PALMER & RIVERS, PC, Royal Oak, Michigan, for Appellees.
GILMAN, J., delivered the opinion of the court in which SUHRHEINRICH, J., joined. McKEAGUE, J. (pp. 18–24), delivered a separate dissenting opinion.
_________________
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.

Case 5:16-cv-1C15a1se9:-J1C6O-2-4M8K4M DEoCcFumNeon. t6:171-f2iled 0F9il/e1d1:/1079/11P/2a0g1e7ID.22P1a0ge: P3age 5 of 27(5 of 27)

No. 16-2484

Mays et al. v. City of Flint, Mich. et al.

Page 3

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

Case 5:16-cv-1C15a1se9:-J1C6O-2-4M8K4M DEoCcFumNeon. t6:171-f2iled 0F9il/e1d1:/1079/11P/2a0g1e7ID.22P1a1ge: P4age 6 of 27(6 of 27)

No. 16-2484

Mays et al. v. City of Flint, Mich. et al.

Page 4

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

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No. 16-2484

Mays et al. v. City of Flint, Mich. et al.

Page 5

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

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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

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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 agents,’” even though the Court denied removal for other reasons. Id. at 150 (quoting Maryland v. Soper (No. 1), 270 U.S. 9, 30 (1926)).
The Watson Court explained that these early cases “illustrate that the removal statute’s ‘basic’ purpose is to protect the Federal Government from the interference with its ‘operations’” that would occur if a federal officer could be tried in state court for a state offense related to the operation. Id. Concerns about “‘local prejudice’ against unpopular federal laws or federal officials” thus underlie the federal-officer removal statute. Id. As the Court explained, states that were antagonistic toward federal government operations might use state court proceedings to thwart the enforcement of federal law. Id.
2. The Supreme Court’s application of the federal-officer removal statute in Watson
Watson involved a cigarette manufacturer, Philip Morris, which filed a notice of removal based on the federal-officer removal statute. The plaintiff-smokers in Watson alleged that Philip Morris had engaged in deceptive business practices by using testing methods for its cigarettes that underreported the levels of tar and nicotine contained in the cigarettes. Concluding that the complaint challenged Philip Morris’s use of the federal government’s method for testing cigarettes, the district court held that the federal-officer removal statute applied, and the Eighth

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Circuit affirmed that decision. The Supreme Court reversed, holding that “the fact that a federal regulatory agency directs, supervises, and monitors a company’s activities in considerable detail” was not enough to establish that Philip Morris was “acting under” an officer of the federal government. Id. at 145.
Watson did not formulate a clear test for when the acting-under requirement is satisfied. But the Court set forth several considerations that are helpful in analyzing the present case. After reviewing the history of the federal-officer removal statute, as discussed above, the Court concluded that “the word ‘under’ must refer to what has been described as a relationship that involves ‘acting in a certain capacity, considered in relation to one holding a superior position or office.’” Id. at 151 (quoting 18 Oxford English Dictionary 948 (2d ed. 1989)). The acting-under relationship “typically involves ‘subjection, guidance, or control.’” Id. (citing dictionary definitions of “under” as “subordinate or subservient to” or “subject to”). In addition, the Court explained that a private entity must be assisting the federal government in carrying out the government’s own tasks in order to invoke federal-officer removal. Id. at 152. Simply complying with a regulation is insufficient, even if the regulatory scheme is “highly detailed” and the defendant’s “activities are highly supervised and monitored.” Id. at 153.
3. Watson supports the conclusion that the MDEQ Defendants were not “acting under” the EPA for purposes of the federal-officer removal statute.
In the present case, the MDEQ Defendants emphasize that the EPA would have to enforce the SDWA in Michigan if the MDEQ did not have primary enforcement authority to do so. Watson indicates that this is a factor supporting removal. 551 U.S. at 153–54. If this were the only factor for us to consider, then the MDEQ Defendants might well be entitled to remove the case under the federal-officer removal statute.
But we read Watson as requiring more. Specifically, Watson interprets “acting under” to mean that the defendant seeking removal must be in a relationship with the federal government where the government is functioning as the defendant’s superior. Id. at 151. The Court went on to explain that the federal-officer removal statute was inapplicable to the facts in Watson because there was “no evidence of any delegation of legal authority from the FTC to the industry

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association to undertake testing on the Government agency’s behalf. Nor is there evidence of any contract, any payment, any employer/employee relationship, or any principal/agent arrangement.” Id. at 156.
In the present case, the MDEQ Defendants argue that they were acting under the EPA because the EPA delegated to the MDEQ primary enforcement authority over the SDWA in Michigan. The district court disagreed, concluding that there is no contract, no employer/employee relationship, nor any other indication of a principal/agent arrangement between the MDEQ and the EPA.
We acknowledge at the outset that the MDEQ does receive funds from the EPA. But we conclude that the receipt of federal funding alone cannot establish a delegation of legal authority because finding such a delegation on that basis is way beyond the reasoning of Watson and would allow myriad state agencies to invoke federal-officer removal.
We now turn to the question of whether the EPA’s delegation to the MDEQ of primary enforcement authority warrants federal-officer removal under Watson. Our research has revealed no caselaw from the Supreme Court, this court, or our sister circuits addressing the issue of whether state officers working in a joint federal-state regulatory system can invoke the federal-officer removal statute. As the Watson Court noted, federal-officer removal has been found to be applicable to certain government contractors. Id. at 153–54. The Court suggested that contracts could delegate legal authority as required for federal-officer removal where a government contractor is helping to fulfill the federal government’s tasks. Id.
We further note that a government contractor entitled to removal would presumably be contractually required to follow the federal government’s specifications in making products or providing services. See Isaacson v. Dow Chem. Co., 517 F.3d 129, 134, 137–38 (2d Cir. 2008) (holding that a government contractor that manufactured Agent Orange for the government was entitled to federal-officer removal in a state-law tort action for injuries caused by the product, noting that the government had contractually required that the product be made to meet certain specifications). And a government contractor would not ordinarily have any authority to take

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actions beyond those specified in the contract. In these cases, the federal government can properly be viewed as acting in a superior relationship to the private entity.
The MDEQ Defendants insist that the government-contractor cases apply here. They heavily rely on a few such district court cases to support their argument, but these cases are distinguishable. In Clio Convalescent Center v. Michigan Department of Consumer & Industry Services, 66 F. Supp. 2d 875, 876 (E.D. Mich. 1999), for example, the district court allowed a state agency to invoke the federal-officer removal statute because the agency had entered into an agreement with the Secretary of Health and Human Services to ensure compliance with Medicaid’s nursing-home certification requirements. That agreement explicitly provided that the state agency would act on the Secretary’s behalf. Id. The district court found that the Secretary was the real party in interest and that the state agency was acting as the Secretary’s agent, evidenced in part by the fact that the Secretary moved to intervene in the case. Id. at 877. A similar outcome was reached in Thompson v. Community Insurance Co., No. C-3-98-323, 1999 U.S. Dist. LEXIS 21725, *12–13 (S.D. Ohio 1999), because that case involved a contractual agreement with an insurance company to act as a “fiscal intermediary” of the federal government in administering a Medicare program.
In the present case, there is no comparable contract or other delegation of legal authority to the MDEQ to act as the EPA’s agent or on the EPA’s behalf. Furthermore, this court has recently indicated, albeit in an unpublished opinion, that the absence of language allowing a private entity to act on the federal government’s behalf weighs against allowing federal-officer removal. See Ohio State Chiropractic Ass’n v. Humana Health Plan Inc., 647 F. App’x 619, 623–24 (6th Cir. 2016) (explaining that a Medicare Advantage Organization could not invoke the federal-officer removal statute because the relevant regulations did not permit the organization to act on the federal government’s behalf, the organization had the freedom to use some innovative private-market techniques, the government was not controlling the entity’s daily operations, and the government would not have to perform the exact same tasks as the organization in the absence of the contractual arrangement).
Another case relied on by the MDEQ Defendants is City of St. Louis v. Velsicol Chemical Corp., 708 F. Supp. 2d 632 (E.D. Mich. 2010). In that case, the district court allowed federal-

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officer removal by a defendant trust that had been created pursuant to a settlement under a federal environmental statute. Id. at 661–62. The trust’s objective was to resolve claims for cleanup costs and to manage the money allocated for the cleanup. Id. at 644–47. As in Clio, the federal government intervened in the action, arguing that removal was proper on the basis of the EPA’s control of the trusts. Id. at 661–62, 667–68. We conclude that Velsicol is distinguishable from the present case because it involved a trust—a relationship that required the defendant trustee to act “solely in a fiduciary capacity consistent with, and in furtherance of, the purposes” of the trust and the settlement agreements. Id. at 647 (quoting trust agreements). As previously explained, there is no comparable legal relationship here.
Instead, in order for the MDEQ to obtain primary enforcement authority, the state of Michigan chose to enact its own state safe-drinking-water laws. See 42 U.S.C. § 300g-2(a)(1) (providing that a state can obtain primary enforcement responsibility if, among other things, it “has adopted drinking water regulations that are no less stringent than the national primary drinking water regulations”). Although Michigan’s laws had to comply with the standards set forth in the SDWA and its accompanying regulations in order for the MDEQ to obtain primary enforcement authority, Michigan was free to enact more stringent requirements for the protection of its residents. See id. That Michigan decided to enact a regulatory scheme that essentially mirrors the federal one does not mean that Michigan was required to do so.
Once the MDEQ received primary enforcement authority, it had to periodically submit reports to the EPA detailing compliance with regulations that had been adopted into state law. See 40 C.F.R. § 142.15. The MDEQ points to these reports as evidence of the EPA’s control over it, but Watson indicates that compliance reporting, even if detailed, is insufficient by itself to merit federal-officer removal. See Watson, 551 U.S. at 156.
Similarly, the MDEQ Defendants vaguely allege that they were guided by “repeated written and verbal dialogue” with the EPA in taking the actions (and inactions) that are challenged in this case. We note, however, that counsel for the MDEQ Defendants conceded at oral argument that the EPA was not involved in the key action underlying the Plaintiff’s complaint—approval of the decision to switch Flint’s water supply to the Flint River. And the notice of removal does not identify any specific actions or inactions alleged in the complaint that

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the EPA required the MDEQ Defendants to take or refrain from taking. Nor do the MDEQ Defendants explain how the SDWA required any of their actions or inactions, and they fail to identify any specific EPA officials who allegedly directed their conduct.
The MDEQ Defendants cite several communications with the EPA in their brief. But because the MDEQ Defendants did not cite these exhibits in the notice of removal, the communications are not among the pleadings that we can review on an appeal of the district court’s determination that it facially lacked jurisdiction. See Casias v. Wal-Mart Stores, Inc., 695 F.3d 428, 433 (6th Cir. 2012) (“When deciding a motion to remand, . . . [t]he court may look to material outside the pleadings for the limited purpose of determining whether there are ‘undisputed facts that negate the claim’” (quoting Walker v. Philip Morris USA, Inc., 443 F. App’x 946, 955–56 (6th Cir. 2011))). And even if we could review these communications, they simply suggest that the EPA and the MDEQ discussed issues related to the Flint water crisis, but not that the EPA ordered the MDEQ to take any specific action.
We also find telling the MDEQ Defendants’ statement in their notice of removal that the clearest indicator that they were acting under the EPA is the emergency order issued on January 21, 2016. That order, however, was issued two days after January 19, 2016, the date on which the Plaintiffs filed their complaint. So any actions that the MDEQ Defendants took pursuant to that order were obviously unrelated to the actions that the Plaintiffs challenge.
True enough, the EPA retains the ability to intervene when a state with primary enforcement authority fails to meet the requirements to maintain such authority. See 40 C.F.R. § 142.17(a)(2). But we disagree with the MDEQ Defendants’ argument that this ability to intervene supports their invocation of federal-officer removal. The fact that the EPA can intervene if a state fails to properly exercise its primary enforcement authority suggests that, absent any such failure by the state, the state retains the freedom to enforce its own safedrinking-water laws and regulations. Michigan was so governing itself when the alleged actions and inactions giving rise to the Plaintiffs’ claims occurred.

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4. Allowing the MDEQ Defendants to invoke the federal-officer removal statute would not serve the purpose of the statute.
According to the MDEQ Defendants, the MDEQ and the EPA are working together in a “joint Federal-State system” that purportedly supports federal-officer removal. But a joint federal-state system suggests to us that the MDEQ was working alongside the EPA, not under it.
We agree with the Plaintiffs that the MDEQ-EPA relationship is a model of cooperative federalism, not an agency relationship. See Philip J. Weiser, Towards a Constitutional Architecture for Cooperative Federalism, 79 N.C. L. Rev. 663, 671 (2001) (discussing the popularity of cooperative federalism, of which the environmental regulations of the 1960s and 1970s are a notable example, and explaining that “the real authority under such regimes often rest with the states which ultimately exercise considerable discretion,” even if the federal government sets forth the regulatory standards). The facts that the MDEQ Defendants allege in their notice of removal—such as the communications with the EPA and the MDEQ’s attempts to follow guidance documents issued by the EPA—suggest that a joint relationship exists, not that the MDEQ is controlled by the EPA.
We are also persuaded by the Plaintiffs’ argument that allowing removal in this case would “stand cooperative federalism on its head.” Our research has not found any caselaw from the Supreme Court or our sister circuits allowing officers of a state agency to invoke the federalofficer removal statute. If the MDEQ Defendants were given the benefit of that statute, then the benefit could be extended to many other state and municipal employees whose agencies work with federal agencies or receive federal funding. This would likely open a floodgate of federal litigation of state-law tort claims based on actions undertaken by state officers.
Where, as here, a state agency is sued based on state-law tort claims for actions taken while enforcing the State’s own statutes and regulations, we see no need for federal-officer removal. As discussed above, the purpose of the federal-officer removal statute is to protect federal officers from hostility toward the federal government or the enforcement of federal laws. The MDEQ Defendants might have been guided by the SDWA and its accompanying regulations in the present case, but they were ultimately enforcing Michigan law, which was designed to mirror federal regulations.

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More importantly, any bias that the MDEQ Defendants will face in state court differs from the historic biases that the federal-officer removal statute was designed to protect against. Unlike prior cases involving local resentment of the customs laws during the War of 1812 or of the actions of federal prohibition officers, this is not a case where a state court has any reason to be hostile to the federal safe-drinking-water laws. We acknowledge that the MDEQ Defendants are likely to be unpopular figures in Genesee County. But any bias that the MDEQ Defendants might face in state court would almost certainly come from the perception that their actions and inactions created the Flint water crisis by failing to guarantee that the Flint River water was safe to drink. We do not see how the MDEQ’s relationship with the EPA or the relationship between Michigan’s safe-drinking-water laws and the SDWA could be viewed as a source of bias.
Finally, we acknowledge the Watson Court’s statement that “[t]he words ‘acting under’ are broad.” Watson, 551 U.S. at 147. But the Court also went on to explain that “[b]road language is not limitless. And a liberal construction can nonetheless find limits in a text’s language, context, history, and purposes.” Id. The Court then explained that the history of the federal-officer removal statute indicated that its purpose is to protect federal officers from state court hostility to the federal government, as discussed above. Id. at 148.
All three of the cases cited by Watson for the point that the statute’s scope is broad involve situations where the undisputed facts showed that the defendant was a federal officer or an employee of a federal officer. In Arizona v. Manypenny, 451 U.S. 232, 234–36 (1981), for example, the defendant was a border-patrol agent employed by the Immigration and Naturalization Service who was indicted in state court for assault with a deadly weapon after shooting a man fleeing toward the border after the defendant told him to stop. There was no dispute that the defendant had satisfied the acting-under requirement. See id. at 236. The Court noted that the statute was to be construed broadly in the context of discussing the fact that Arizona law would be applied in the federal proceeding. Id. at 242.
Similarly, in Willingham v. Morgan, 395 U.S. 402, 403 (1969), the defendants were federal-prison employees who were sued under state tort law. The court remarked on the federal-officer removal statute’s broad scope in the context of concluding that its “color of office” language covered acts taken while the defendants were allegedly “on a frolic of their

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own” instead of being engaged in official duties. Id. at 404–10 (quoting motion for remand). And Colorado v. Symes, 286 U.S. 510, 514–16 (1932), involved the classic case of a prohibition agent who faced a murder prosecution in state court, which arose out of an encounter with a suspect who was openly drinking wine at a restaurant. Removal in these cases thus clearly served the historical purpose of the federal-officer removal statute. The present case is markedly different because the MDEQ Defendants are state officers who have been sued for actions and inactions related to their enforcement of state law.
We therefore conclude that the MDEQ Defendants were not “acting under” the EPA and thus are not eligible for federal-officer removal. Because we conclude that the acting-under requirement is not satisfied, we need not decide whether the MDEQ Defendants are being sued for actions taken under color of federal law or whether the MDEQ Defendants have raised a colorable federal defense.
C. This case does not present a substantial federal question that merits removal under 28 U.S.C. § 1441.
The MDEQ Defendants argue in the alternative that they are entitled to removal under 28 U.S.C. § 1441. Removal pursuant to § 1441 is proper where a state-law claim involves a federal issue that is “(1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress,” “which a federal forum may entertain without disturbing a congressionally approved balance of federal and state judicial responsibilities.” Gunn v. Minton, 568 U.S. 251, 258 (2013). As the Supreme Court has cautioned, however, removal based on the theory that a state-law claim raises a substantial federal question is appropriate only in “a special and small category of cases.” Id.
In the present case, the Plaintiffs have alleged state-law claims of gross negligence, fraud, assault and battery, and intentional infliction of emotional distress. The MDEQ Defendants argue that this case nevertheless meets all of the requirements for removal under 28 U.S.C. § 1441 because the complaint alleges that the MDEQ Defendants breached duties to the Plaintiffs that were based on the SDWA and the LCR. According to the MDEQ Defendants, the interpretation of the LCR is “inherently tied to” the determination of whether the MDEQ Defendants were negligent. They contend that there is a sufficient federal interest to merit

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removal because of the need to avoid inconsistent interpretations of the LCR. The Plaintiffs counter that the district court correctly concluded that this case does not raise a substantial federal issue.
We agree with the Plaintiffs and the district court. As the removing party, the MDEQ Defendants bear the burden of demonstrating that a basis for federal jurisdiction exists. The MDEQ Defendants have vaguely alleged that the Plaintiffs’ gross-negligence claims are inextricably related to the interpretation of the LCR because those regulations are “ambiguous and susceptible to multiple interpretations as applied to Flint.”
But the Supreme Court has held that, when a plaintiff’s complaint raises garden-variety tort claims, “the presence of a claimed violation of [a federal] statute as an element of a state cause of action is insufficiently ‘substantial’ to confer federal-question jurisdiction.” Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 814 (1986) (concluding that a negligence per se claim based on alleged violations of a federal statute did not warrant federal jurisdiction); see also Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 318–19 (2005) (reaffirming that Merrell Dow’s reasoning applies in cases presenting garden-variety tort claims, but allowing removal on the basis that the issue before the Court in Grable was a relatively rare state quiet-title claim based directly on the effect of an IRS notice of seizure to satisfy a federal tax lien). Both Grable and Merrell Dow noted that allowing federal jurisdiction over typical negligence claims that implicated issues of federal law could dramatically increase the volume of federal litigation over state-law claims. See Merrell Dow, 478 U.S. at 811–12; Grable, 545 U.S. at 319. This court applied the holding of Merrell Dow post Grable in 2012, reiterating that statelaw negligence claims arising out of violations of a federal statute do not merit federal jurisdiction. See Hampton v. R.J. Corman R.R. Switching Co., 683 F.3d 708, 712–13 (6th Cir. 2012).
Furthermore, where Congress has not created a private cause of action for violations of a federal statute, there is less likely to be a substantial interest in favor of removal. Grable, 545 U.S. at 318. And there is no private right of action for damages arising from a violation of the SDWA or the LCR. Harding-Wright v. D.C. Water & Sewer Auth., 350 F. Supp. 2d 102, 106–07 (D.D.C. 2005) (explaining that, although private parties may bring lawsuits against

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violators of the SDWA under 42 U.S.C. § 300j-8(a)–(e), there is no private right of action for compensatory damages and, under Merrell Dow, there is no federal jurisdiction over state-law claims based on the SDWA).
In light of the aforementioned precedents, the MDEQ Defendants have not met their burden of demonstrating that federal jurisdiction exists. We therefore conclude that removal under 28 U.S.C. § 1441 is inappropriate in the present case.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district court.

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_________________
DISSENT _________________
McKEAGUE, Circuit Judge, dissenting. The analysis of the majority opinion is facially appealing, but it comes to the wrong result. The difference between our two views stems from our different starting points. The majority relies on a general rule favoring resolution of doubts against removal. But in this context, our precedents require us to resolve doubts in favor of the party or parties invoking federal jurisdiction. Instead of abiding by these precedents, my colleagues have embarked on a more searching (and speculative) inquiry than is warranted or permitted at this stage of the case. I respectfully dissent.1
I
We all agree that the district court treated plaintiffs’ motion to remand as a facial attack. A facial attack, like a motion to dismiss under Fed. R. Civ. P. 12(b)(6), tests the sufficiency of the pleadings—such as the notice of removal and the complaint—and well-pled fact allegations are accepted as true. Wayside Church v. Van Buren Cty., 847 F.3d 812, 816–17 (6th Cir. 2017); Carrier Corp. v. Outokumpu Oyj, 673 F.3d 430, 440 (6th Cir. 2012); Gentek Bldg. Prod., Inc. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007). A factual attack, on the other hand, raises a factual controversy requiring the district court to weigh the conflicting evidence in determining whether jurisdiction exists. Wayside, 847 F.3d at 817. Where, as here, “the district court treated the challenge as a facial challenge and made no factual findings in reaching its decision, the appeal is treated the same way.” Id.
So, the parties’ allegations should be the focus of our inquiry. The district court, rather conspicuously, focused only on plaintiffs’ allegations and found no basis for federal jurisdiction in their assertion of state-law tort claims. The majority opinion acknowledges that defendants’ notice of removal has an important role to play, but describes its allegations only in summary fashion. Let’s take a closer look.

1Like the majority, I focus on the first of the removing defendants’ two asserted bases for removal, the federal officer removal statute.

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In the notice of removal, the MDEQ defendants aver, with reference to plaintiffs’ Count I
claim for gross negligence and Count II claim for intentional misconduct, that their actions
complained of were taken in the course and scope of their employment with the MDEQ in their
monitoring and testing of Flint’s drinking water under federal law, the Safe Drinking Water Act
(SDWA), 42 U.S.C. § 300f et seq., and under oversight of a federal agency, the EPA. R. 1,
Notice of Removal ¶¶ 6–7, Page ID 3–4. The notice of removal states “[t]his is not a garden
variety state law tort action that merely references a federal law or statute.” Id. at ¶ 43, Page ID
14. Rather, the MDEQ defendants assert that Plaintiffs’ claims are “inextricably intertwined
with the construction, interpretation and effect of the SDWA and the LCR [Lead and Copper
Rule].” Id. at ¶ 41, Page ID 14. More specifically, for example, they allege:
29. The Removing Defendants are being sued for allegedly failing to adhere to federal law, due to their alleged lack of compliance with the SDWA and LCR’s detailed monitoring, testing, sampling, and notification requirements in overseeing the Flint water system, as administered by Removing Defendants under the EPA’s direction and control.
* * * *
40. Plaintiffs’ complaint both specifically and implicitly alleges that these removing Defendants (along with other individual Defendants consenting to this removal) had duties to Plaintiffs based on the federal SDWA and LCR standards, regulations, monitoring, and testing requirements that were purportedly not followed and give rise to Plaintiffs’ various causes of action.
41. Plaintiffs’ claims are inextricably intertwined with the construction, interpretation, and effect of the SDWA and the LCR. If these and other Defendants establish that these federal laws and regulations were not violated, Plaintiffs’ claims against these Removing Defendants are defeated.
42. Plaintiffs’ gross negligence claims depend on a question of federal law, primarily whether these Removing Defendants complied with the SDWA and LCR during their oversight of the Flint water system. There are no alternative theories supporting gross negligence that do not implicate the SDWA and/or LCR, as the Removing Defendants are being sued for carrying out the EPA’s duty, as delegated to Removing Defendants, to ensure that public water systems such as Flint comply with the SDWA and LCR.
* * * *
44. Whether these and other Defendants violated the SDWA and LCR is disputed. The EPA has admitted that the LCR is ambiguous and subject to different possible interpretations and constructions when applied to this particular situation. . . . .

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45. There is substantial need for uniform interpretation of the SDWA and LCR as it applies to Flint, and the other 155,000 public water systems subject to the SDWA and LCR, that provide water to almost all Americans across the United States.
Id. at ¶¶ 29, 40–42, 44, 45, Page ID 10, 14, 15 (footnotes omitted).
In addition, the notice of removal devotes nearly five pages to spelling out the
relationship between the MDEQ and the EPA in sharing responsibility for monitoring water
quality and enforcing compliance with standards established in the SDWA and its regulations,
like the LCR. Id. at 6–10, Page ID 6–10. The following paragraphs are illustrative:
18. The SDWA directs the EPA to promulgate national primary drinking water standards and to regulate public water systems. See 42 U.S.C. § 300f et seq.
19. Specifically, with respect to the regulation of lead and copper, the EPA, in 1991, promulgated national primary drinking water regulations (“NPDWRs”) for controlling lead and copper in public drinking water. 56 Fed. Reg. 26460 (June 7, 1991). These regulations are known as the “Lead and Copper Rule” or “LCR” and are found at 40 C.F.R. §§ 141.80, et seq. . . . .
20. The EPA’s LCR applies to public water systems such as the City of Flint. See 40 C.F.R. § 141.80(a). Generally speaking, it requires those water systems to monitor the levels of lead and copper at consumers’ taps and, under a number of different circumstances, requires those systems to employ various treatment techniques such as corrosion control treatment, source water treatment, lead service line replacement, and public education. 40 C.F.R. §§ 141.80(b)–(h).
21. The SDWA authorizes the EPA to delegate primary enforcement responsibility for public drinking water systems to states where the EPA determines, inter alia, that the state: (1) has adopted drinking water regulations that are no less stringent than the primary drinking water regulations promulgated by the EPA; (2) has adopted and is implementing adequate procedures for the enforcement of such State regulations, including conducting such monitoring and making such inspection as required by the EPA; and (3) will keep such records and make such reports with respect to its activities as required by the EPA. See 42 U.S.C. § 300g-2; see also 40 C.F.R. §§ 142.10, 142.11.
22. The SDWA, however, reserves tremendous oversight authority to the EPA, including mandatory EPA intervention in the form of notifications, advice, technical assistance, and, failing timely and sufficient state action, enforceable orders and inspections to bring water systems into compliance with federal standards. See 42 U.S.C. § 300g-3; see also 40 C.F.R. §§ 141.82(i), 141.83(b)(7), 142.19, 142.30, and 142.34.

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* * * *
24. If the EPA determines that a state no longer meets its requirements, the EPA is required to initiate proceedings to withdraw primacy approval. See 40 C.F.R. §§ 142.17(a)(2). If the EPA believes a state has abused its discretion in making corrosion control or source water treatment determinations in a substantial number of cases, or in cases affecting a substantial population, the EPA may issue an order establishing federal treatment requirements for a public water system. See 40 C.F.R. § 142.19(a) (emphasis added).
* * * *
28. Furthermore, EPA’s direction and control over the MDEQ’s implementation of the SDWA and LCR is most clearly demonstrated by the EPA’s January 21, 2016 emergency order, whereby the EPA began monitoring and testing the Flint water system and ordered the MDEQ to take specific actions related to Flint. Exhibit J.
R. 1, Notice of Removal ¶¶ 18–22, 24, 28, Page ID 6–10 (footnotes omitted).
The allegations of the notice of removal thus, on their face, aver that plaintiffs’ “garden
variety state law tort action” is premised on alleged violations of duties stemming from federal
standards established by the SDWA and the LCR—standards the MDEQ defendants were
charged with monitoring and enforcing by virtue of the EPA’s delegation of authority to them.2
II
The district court paid little heed to these allegations, and my colleagues, by essentially
ignoring its decision, implicitly acknowledge that the district court’s analysis is flawed.
Moreover, the majority acknowledges that several of the allegations in the notice of removal
facially support a finding that the MDEQ defendants “acted under” the oversight or direction of
the EPA. For instance, the majority recognizes (a) that the EPA delegated primary SDWA
2In fact, the removing defendants’ contention that plaintiffs’ tort claims are “inextricably intertwined” with enforcement of these standards was, in effect, all but conceded by plaintiffs’ counsel during oral arguments. Pressed to identify the source of the duty allegedly breached by the MDEQ defendants, under Michigan law, whether statutory or case law authority—independent of the SDWA and the LCR—plaintiffs’ counsel defaulted. Counsel was simply unable to identify a state-law source of the duty owed by the MDEQ defendants to plaintiffs, the breach of which allegedly amounted to gross negligence.
Counsel’s failure in this regard is not surprising; it’s entirely consistent with plaintiffs’ amended complaint, which includes several references to the federal LCR, but does not name a state-law source of the duty allegedly breached. This deficit in plaintiffs’ position does not dictate that the removing defendants were acting as or under federal officers. By negative implication, however, it enhances the facial “color” in defendants’ allegations that their complained-of actions were taken pursuant to federal authority.

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enforcement authority to the MDEQ; (b) that the MDEQ receives funds from the EPA to perform the required monitoring and enforcement; (c) that the EPA would have to enforce the SDWA in Michigan if the MDEQ did not have primary enforcement authority; (d) that the MDEQ was required to submit reports to the EPA detailing compliance with the standards established by the SDWA and the LCR; (e) that during the course of the MDEQ’s monitoring of the Flint water system, the MDEQ defendants received numerous communications and recommendations from the EPA, culminating in the EPA’s January 2016 Emergency Administrative Order attached to the notice of removal; and (f) that the Emergency Order, by establishing the EPA’s own monitoring of the Flint water system and ordering the MDEQ defendants to take myriad actions to assist the EPA, evidences the EPA’s supervision and control.
Yet, rather than accepting these allegations at face value, as we are obliged to do in response to plaintiffs’ facial attack, the majority opinion scrutinizes each point individually and explains why each, viewed in isolation, is insufficient to persuade that the removing defendants have carried their burden of establishing jurisdiction. To justify this approach, the majority observes that “removal statutes are to be strictly construed, and all doubts should be resolved against removal,” citing Harnden v. Jayco, Inc., 496 F.3d 579, 581 (6th Cir. 2007), and Eastman v. Marine Mech. Corp., 438 F.3d 544, 549 (6th Cir. 2006). But in each of these cases, removal was based on the defendant’s assertion that the plaintiff’s complaint implicated either the requisite amount in controversy or a question of federal law that justified federal jurisdiction. It stands to reason that the court’s facial examination of the “unadorned snapshot” of the plaintiff’s complaint in each case would be accompanied by a “presumption” resolving doubts in favor of the plaintiff, the drafter of the pleading under examination. To carry its burden under those circumstances, the removing defendant was aptly required to overcome the presumption favoring the plaintiff’s construction of its own pleading.
The federal officer removal officer statute, however, is a different animal. The fundamental basis for removal under this statute is the status of the defendant as a federal officer or one acting under a federal officer. This status would ordinarily be set forth in the defendant’s notice of removal, not in the plaintiff’s complaint. It is for this reason, ostensibly, that “doubts” arising under a facial attack on federal officer removal are to be resolved in favor of removal. In

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the instant case, plaintiffs’ facial attack on the jurisdictional allegations in the notice of removal is thus accompanied by a presumption in favor of the defendants’ construction of their own pleading. It follows that the removing defendants’ allegations are to be read in the light most favorable to them and any reasonable doubts should be resolved in their favor.
The federal officer removal statute permits removal of actions brought against “(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. . . .” 28 U.S.C. § 1442(a)(1) (emphasis added).
“The federal officer removal statute is not narrow or limited.” Willingham v. Morgan, 395 U.S. 402, 406 (1969) (internal quotation marks omitted). “At 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. One of the primary purposes is “to have such defenses litigated in the federal courts.” Id. at 407. “This policy should not be frustrated by a narrow, grudging interpretation of § 1442(a)(1).” Id.
The statutory language highlighted above makes clear that removal is available to some persons who are not federal officials, i.e., persons who are under the direction or instruction or guidance or control of a federal superior and who assist or help carry out the superior’s duties. Watson v. Philip Morris Cos., Inc., 551 U.S. 142, 151–52 (2007). The MDEQ defendants contend they are such persons and their notice of removal is replete with detailed allegations tending to substantiate their position. Under the regulatory scheme established by the SDWA, as described in the notice of removal, the MDEQ defendants have stated facts which, if proved, could support a finding that they were, in their enforcement of water quality standards, acting under the guidance and oversight and, ultimately, direction of the EPA (i.e., after issuance of the Emergency Order).
These allegations are to be accepted as true for purposes of this facial assessment. Wayside, 847 F.3d at 816; Gentek, 491 F.3d at 330.3 If the allegations make out a colorable

3Of course, if plaintiffs were not content to accept the allegations as true, they had the option of asserting a factual attack, but that’s not how the district court treated their motion to remand.

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basis for federal jurisdiction, then jurisdiction is deemed to exist. Gentek, 491 F.3d at 330. And to the extent the allegations are intertwined with fact questions going to the merits, it is not for the court to muse about what how the record might ultimately be developed. Rather, doubts are to be resolved in favor of removal. The court should ordinarily assume jurisdiction over the case and then address questions going the merits in due course—unless the alleged basis for jurisdiction is “clearly immaterial or insubstantial.” Id. (quoting Williamson v. Tucker, 645 F.2d 404, 415–16 (5th Cir. 1981)); see also Carrier, 673 F.3d at 443–44; Papp v. Fore-Kast Sales Co., Inc., 842 F.3d 805, 811 (3d Cir. 2016). The lengths to which the majority opinion goes to explain why defendants’ allegations are colorable but not persuasive (including a survey of the history and purposes of the federal officer removal) belie any notion that defendants’ allegations are “clearly immaterial or insubstantial.” In my opinion, the majority’s analysis embarks on an excursion far beyond the boundaries that circumscribe a proper examination of the sufficiency of the pleadings.
III
Because the MDEQ defendants’ jurisdictional allegations are not clearly immaterial and insubstantial, any doubts as to whether defendants will be able to prove the alleged facts—i.e., doubts about what the evidence will ultimately show, and about the actual nature of the shared regulatory relationship of the EPA and the MDEQ defendants, and about the extent to which the defendants’ actions were subject to the guidance or oversight of the EPA—are all to be resolved at this stage in defendants’ favor. I express no opinion on the likelihood that defendants will be able to prevail on the merits of their defenses. In question here is simply whether they have set forth colorable grounds warranting a federal forum. I believe they have alleged facts that, if proved, would support findings that they acted under a federal officer, under color of federal law, and have a colorable federal defense. See Bennett v. MIS Corp., 607 F.3d 1076, 1085 (6th Cir. 2010). This is enough to withstand plaintiffs’ facial attack and permit federal officer removal. Because the district court, like my colleagues, disregarded the boundaries governing plaintiffs’ facial attack in reaching a different conclusion, I would reverse the order of remand.
Accordingly, I respectfully dissent.

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UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
No. 16-2484

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.

FILED
Sep 11, 2017
DEBORAH S. HUNT, Clerk

Before: SUHRHEINRICH, GILMAN, and McKEAGUE, Circuit Judges.
JUDGMENT
On Appeal from the United States District Court for the Eastern District of Michigan at Ann Arbor.
THIS CAUSE was heard on the record from the district court and was argued by counsel.
IN CONSIDERATION THEREOF, it is ORDERED that the judgment of the district court is AFFIRMED.
ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk