                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 18a0197n.06

                                             No. 17-1401

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

TAMARA NAPPIER, as mother and next friend of               )                     FILED
T.N., a minor child, on behalf of T.N. and a class of      )                   Apr 16, 2018
all others similarly situated,                             )              DEBORAH S. HUNT, Clerk
                                                           )
       Plaintiff-Appellee,                                 )
                                                           )
v.                                                         )
                                                                ON APPEAL FROM THE
                                                           )
                                                                UNITED STATES DISTRICT
RICHARD SNYDER, et al.,                                    )
                                                                COURT FOR THE WESTERN
                                                           )
                                                                DISTRICT OF MICHIGAN
       Defendants-Appellees,                               )
                                                           )
DANIEL WYANT, et al.,                                      )
                                                           )
       Defendants-Appellants.                              )
                                                           )


BEFORE: CLAY, COOK and WHITE, Circuit Judges.

       HELENE N. WHITE, Circuit Judge.

       Defendants-Appellants Stephen Busch, Patrick Cook, Michael Prysby, Liane Shekter

Smith, Bradley Wurfel and Daniel Wyant, employees of the Michigan Department of

Environmental Quality, (“MDEQ Defendants”) appeal the district court’s order remanding this

case to the Michigan Court of Claims on the basis that it was improperly removed. Finding this

court’s prior decision in Mays v. City of Flint, Michigan, 871 F.3d 437 (6th Cir. 2017)

controlling, we AFFIRM.

                                        I.      Background

       This case arises from the water crisis in Flint, Michigan. Plaintiff Nappier and minor

T.N. (“Plaintiff”) are residents of Flint. Seeking to represent a class
No. 17-1401, Nappier v. Snyder


       of all individuals who, from April 25, 2014 through the date of trial, are or were
       minor children (age 17 years and younger) who are or were residing in the City of
       Flint, Michigan and who have been brain damaged as a result of the ingestion of
       lead poisoned water from pipes and service lines that supplied water from the
       Flint River without the use of any corrosion control,

(R. 1-3, PID 45; see also id. at PID 55-57), plaintiff filed her class-action complaint in the

Michigan Court of Claims on March 23, 2016, alleging that Defendants breached various duties

relating to the Flint water supply.

       There are numerous defendants, including various state officials, department heads and

program heads, emergency managers, and the appellant MDEQ employees. On May 31, MDEQ

Defendant Busch removed the case to the U.S. District Court for the Western District of

Michigan, asserting federal subject-matter jurisdiction under the federal-officer removal statute,

28 U.S.C. § 1442, and federal-question jurisdiction under 28 U.S.C. § 1441. On June 14, 2016,

several other defendants (State Defendants) filed a motion to remand, advancing arguments that

are no longer relevant. During the remainder of 2016, various defendants filed a variety of

motions, including motions to dismiss and a motion to change venue.

       After the district court scheduled oral argument on State Defendants’ motion to remand,

it was provided with supplemental authority calling its attention to the decision of the U.S.

District Court for the Eastern District of Michigan in Mays v. City of Flint, No. 5:16-cv-11519-

JCO-MKM (E.D. Mich. Oct. 6, 2016). The Plaintiffs in Mays, purporting to represent “a class of

thousands of Flint water users,” sued numerous defendants, including MDEQ defendants,

alleging “gross negligence, fraud, assault and battery, and intentional infliction of emotional

distress.” (R. 60-1 at PID 6737.) The MDEQ defendants removed the case to federal court,

invoking the same bases for federal jurisdiction as invoked here. The district court found that

removal was improper because the MDEQ defendants had not shown that they were acting under

federal officers or were being sued for acts performed under color of federal office, and because
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No. 17-1401, Nappier v. Snyder


the plaintiffs’ claims did not raise a federal question. The supplemental authority also included

this court’s order denying the Mays MDEQ defendants’ motion for a stay of the district court’s

remand order pending appeal, for failure to show “a strong likelihood of success on the merits.”

(R. 60-2.)

       The district court issued a memorandum and order canceling the scheduled oral argument

and ordering further briefing on why the court should not remand the case to state court for lack

of subject-matter jurisdiction in light of Mays. After reviewing the supplemental briefs, the

district court issued its opinion finding that removal was improper and remanding the case to

state court. Citing Mays, the district court found that MDEQ Defendants did not qualify for

federal-officer removal because of their “independent role as enforcer of Michigan law and the

[Safe Drinking Water Act (SDWA)].” (R. 75 at PID 7399.) The district court also cited Mays in

support of its conclusion that Plaintiff’s state-law negligence claim did not raise a federal

question.

       During the pendency of this appeal, a divided panel of this court affirmed the district

court’s remand order in Mays, and this court denied rehearing en banc.1

                                       II.    Discussion

       “We review de novo the district court’s determination that it lacked subject-matter

jurisdiction and its consequent decision to issue a remand order.” Mays, 871 F.3d at 442 (citing

Smith v. Nationwide Prop. & Cas. Ins. Co., 505 F.3d 401, 404 (6th Cir. 2007)).




1
 On October 10, 2017, the MDEQ appellants in Mays filed a petition for rehearing en banc.
That petition was subsequently denied and, on February 13, 2018, the MDEQ appellants filed a
petition for certiorari with the United States Supreme Court.


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No. 17-1401, Nappier v. Snyder


            A. Federal-Officer Removal

        The federal-officer removal statute provides that the following may remove a civil action

to federal district court:

        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 or on
        account of any right, title or authority claimed under any Act of Congress for the
        apprehension or punishment of criminals or the collection of the revenue.

28 U.S.C. § 1442(a)(1) (emphasis added). When the removing party is not a federal officer, we

apply a three-part test to determine whether removal is proper. The removing party must

demonstrate that: (1) it is a “person” within the meaning of the statute who “acted under a federal

officer”; (2) “it performed the actions for which it is being sued under color of federal office”;

and (3) “it raised a colorable federal defense.” Bennett v. MIS Corp., 607 F.3d 1076, 1085 (6th

Cir. 2010) (alterations, quotations, and citations omitted). The Supreme Court has defined

“acting under”:

        In this context, 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.” That relationship typically involves
        “subjection, guidance, or control.” In addition, precedent and statutory purpose
        make clear that the private person’s “acting under” must involve an effort to
        assist, or to help carry out, the duties or tasks of the federal superior.

Watson v. Philip Morris Companies, Inc., 551 U.S. 142, 151–52 (2007) (citations omitted).

        MDEQ Defendants argue that (1) the district court erroneously resolved doubts about the

propriety of removal in favor of remand rather than in favor of broad federal-officer removal;

(2) although they were implementing Michigan’s SDWA, they were “acting under” federal

officers at the United States Environmental Protection Agency (USEPA) because (a) they were

performing tasks that the USEPA otherwise would have been required to undertake, (b) the

USEPA retained authority to control MDEQ’s actions and MDEQ was subject to USEPA


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No. 17-1401, Nappier v. Snyder


supervision, and (c) the USEPA provided federal funding for MDEQ to administer and enforce

the federal SDWA; (3) Michigan’s SDWA and its decision to take primary enforcement

authority for the federal SDWA, and the duties that Plaintiff alleges MDEQ Defendants

breached, only came about because of the federal SDWA; (4) the district court erred when it

found that the USEPA was merely assisting MDEQ to perform its duties, and the reverse is true;

(5) plaintiffs satisfied the “causal nexus” requirement for federal officer removal; and (6) the

SDWA preempts state tort claims and they are therefore entitled to immunity.

       In Mays, this court held that the relationship between the MDEQ and the USEPA “is a

model of cooperative federalism, not an agency relationship,” 871 F.3d at 447, and “MDEQ

Defendants were not ‘acting under’ the EPA and thus are not eligible for federal-officer

removal,” id. at 449. The MDEQ Defendants do not argue that Mays is not controlling, and it is

clear that a ruling in the MDEQ Defendants’ favor would be contrary to Mays. “It is firmly

established that one panel of this court cannot overturn a decision of another panel; only the

court sitting en banc can overturn such a decision.” United States v. Lanier, 201 F.3d 842, 846

(6th Cir. 2000) (citing United States v. Smith, 73 F.3d 1414, 1418 (6th Cir. 1996)). Because

Mays is legally indistinguishable, we affirm the district court’s ruling that federal-officer

removal was improper.

           B. Federal-Question Jurisdiction

       MDEQ Defendants also argue that they established federal-question jurisdiction. A case

may be removed to federal district court if the court would have had original jurisdiction.

28 U.S.C. § 1441(a). “The district courts shall have original jurisdiction of all civil actions

arising under the Constitution, laws, or treaties of the United States.” Id. § 1331. In this case,

plaintiff did not allege any federal claims on the face of her complaint. “[F]ederal jurisdiction

over a state law claim will lie if a federal issue is: (1) necessarily raised, (2) actually disputed,
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No. 17-1401, Nappier v. Snyder


(3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state

balance approved by Congress.” Gunn v. Minton, 568 U.S. 251, 258 (2013) (discussing Grable

& Sons Metal Prod., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 313-14 (2005)).                 “The

substantiality inquiry under Grable looks . . . to the importance of the issue to the federal system

as a whole.” Id. at 260. “[T]he 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.”

Mays, 871 F.3d at 449 (internal alterations omitted) (quoting Merrell Dow Pharm. Inc. v.

Thompson, 478 U.S. 804, 814 (1986)).

       MDEQ Defendants argue that the district court erred by finding that Plaintiff’s “‘garden-

variety’ state-law tort claim . . . does not raise a federal question at the level of importance”

required by Grable, (R. 75, PID 7403), because violations of the SDWA and the Lead Copper

Rule will underpin state tort claims in jurisdictions across the country. They also assert that

federal jurisdiction would not upset the balance of federal and state responsibilities.

       But Mays resolved this issue as well, finding that the plaintiffs’ claims did not raise a

substantial federal question.      871 F.3d at 449–50.          Again, because Mays is legally

indistinguishable on this issue, we affirm the district court’s determination that § 1441 removal

was improper.2

                                          III.    Conclusion

       For these reasons, we AFFIRM.
       2
         Appellee State Defendants additionally argue that removal was improper under § 1441
for lack of unanimity. “[T]here is a rule of unanimity that has been derived from the statutory
language prescribing the procedure for removing a state action to federal court, 28 U.S.C.
§ 1446.” Loftis v. United Parcel Serv., Inc., 342 F.3d 509, 516 (6th Cir. 2003). See 28 U.S.C.
§ 1446(b)(2)(A) (“When a civil action is removed solely under section 1441(a), all defendants
who have been properly joined and served must join in or consent to the removal of the action.”).
MDEQ Defendants do not dispute that Appellee State Defendants did not consent to removal.
Thus, § 1441 removal was additionally improper for lack of unanimity.


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