Mays, et al. v. City of Flint, Mich., et al., No. 16-2484 (GILMAN, Suhrheinrich, McKeague).

Mays, et al. v. City of Flint, Mich., et al., No. 16-2484 (GILMAN, Suhrheinrich, McKeague).

The plaintiffs—residents of Flint, Michigan—sued several city and state officials in Michigan state court for alleged state torts arising from the toxic condition of the Flint water supply. The defendants removed the case to federal court, arguing that they performed the conduct in question under the supervision and direction of the U.S. Environmental Protection Agency (EPA) and contending that the plaintiffs’ claims implicate a substantial federal issue that merits federal-question jurisdiction. The district court remanded the case to the state court, and the defendants appealed the remand order.

The Sixth Circuit affirmed. Persons who are not federal officers may only remove a case under the federal-officer removal statute if they establish that (1) they acted under a federal officer, (2) those actions were performed under color of federal office, and (3) they have a colorable federal defense. After considering the history of the federal-officer removal statue and the Supreme Court’s interpretation of the statute, the Sixth Circuit held that merely receiving funds from the EPA does not establish a delegation of legal authority to support removal. Moreover, although it acknowledged that there was no precedent addressing whether state officers in a joint state-federal regulatory system can invoke the statute, the Court held that there was no contract or trust between the defendants and the EPA that would have created the type of legal agency relationship allowing removal under the statute. The Court also held that the case does not present a substantial federal question meriting removal because the presence of a claimed violation of a federal statute as an element of a plaintiff’s “garden-variety tort claims”—like the negligence claims at issue here—is insufficiently substantial to confer federal-question jurisdiction.

Judge McKeague dissented, arguing that the defendants’ notice of removal was replete with detailed allegations that, if proved, could support a finding that they were acting under the guidance, oversight, and direction of the EPA. Judge McKeague would have accepted these allegations as true and resolved all doubts in favor of removal because the federal-officer removal statute is concerned with the status of the defendants.