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. 

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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, 

>
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. 
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 
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 
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 
No. 16-2484 Mays et al. v. City of Flint, Mich. et al. Page 6

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 
No. 16-2484 Mays et al. v. City of Flint, Mich. et al. Page 7

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 
No. 16-2484 Mays et al. v. City of Flint, Mich. et al. Page 8

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 
No. 16-2484 Mays et al. v. City of Flint, Mich. et al. Page 9

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 
No. 16-2484 Mays et al. v. City of Flint, Mich. et al. Page 10

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-
No. 16-2484 Mays et al. v. City of Flint, Mich. et al. Page 11

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 
No. 16-2484 Mays et al. v. City of Flint, Mich. et al. Page 12

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.
No. 16-2484 Mays et al. v. City of Flint, Mich. et al. Page 13

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. 
No. 16-2484 Mays et al. v. City of Flint, Mich. et al. Page 14

 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 
No. 16-2484 Mays et al. v. City of Flint, Mich. et al. Page 15

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 
No. 16-2484 Mays et al. v. City of Flint, Mich. et al. Page 16

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 
No. 16-2484 Mays et al. v. City of Flint, Mich. et al. Page 17

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. 

 
No. 16-2484 Mays et al. v. City of Flint, Mich. et al. Page 18

_________________ 

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. 

 1

Like the majority, I focus on the first of the removing defendants’ two asserted bases for removal, the 

federal officer removal statute. 
No. 16-2484 Mays et al. v. City of Flint, Mich. et al. Page 19

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. . . . . 
No. 16-2484 Mays et al. v. City of Flint, Mich. et al. Page 20

 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. 
No. 16-2484 Mays et al. v. City of Flint, Mich. et al. Page 21

* * * * 

 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 

 2

In 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. 
No. 16-2484 Mays et al. v. City of Flint, Mich. et al. Page 22

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 
No. 16-2484 Mays et al. v. City of Flint, Mich. et al. Page 23

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 

 3

Of 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. 
No. 16-2484 Mays et al. v. City of Flint, Mich. et al. Page 24

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.