                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 18a0511n.06

                                             No. 18-1155

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


 LUKE WAID; MICHELLE RODRIGUEZ; S.R., a )
                                                                                     FILED
                                                                               Oct 15, 2018
 minor child,                           )
                                                                          DEBORAH S. HUNT, Clerk
                                        )
        Plaintiffs-Appellees,           )
                                        )
                v.                      )                          ON APPEAL FROM THE
                                        )                          UNITED STATES DISTRICT
 STEPHEN BUSCH; LIANE SHEKTER SMITH; )                             COURT FOR THE EASTERN
 ADAM ROSENTHAL; PATRICK COOK; )                                   DISTRICT OF MICHIGAN
 MICHAEL PRYSBY; BRADLEY WURFEL,        )
                                        )
        Defendants-Appellants.          )
                                        )



BEFORE: CLAY and GRIFFIN, Circuit Judges; ZOUHARY, District Judge.*

        PER CURIAM.

        This matter represents the third time these defendants have appealed an order remanding a

state law tort action arising out of the Flint Water Crisis back to the courts of the State of Michigan.

Defendants worked for the Michigan Department of Environmental Quality (MDEQ) during the

crisis, each playing a key role in either the City of Flint distributing water to its residents in a

manner that caused lead and other harmful contaminants to leach into the water supply or the

MDEQ failing to adequately respond after the water problems became apparent. Plaintiffs filed a

complaint in the Genesee County Circuit Court asserting a variety of claims against defendants,



        *
         The Honorable Jack Zouhary, United States District Judge for the Northern District of
Ohio, sitting by designation.
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Waid, et. al. v. Busch, et al.


including gross negligence, intentional misconduct, fraud, assault, battery, intentional infliction of

emotional distress, and violations of the Safe Drinking Water Act. The complaint requests

compensatory damages, costs, interest, attorney fees, and injunctive and declaratory relief. After

defendants removed the case to the Eastern District of Michigan, the district court granted

plaintiffs’ motion to remand for lack of jurisdiction. Defendants challenge the district court’s

remand order on multiple fronts.

        First, defendants argue they were fulfilling duties delegated to the MDEQ by the

Environmental Protection Agency (EPA), including interpreting the Safe Drinking Water Act

(SDWA), 42 U.S.C. § 300f et seq., and the EPA’s Lead and Copper Rule (LCR), 40 C.F.R.

§ 141.80 et seq., and therefore could remove this case under the federal-officer removal statute,

28 U.S.C. § 1442(a)(1). We rejected that exact claim in Mays v. City of Flint, 871 F.3d 437, 449

(6th Cir. 2017); we did so again in Nappier v. Snyder, 728 F. App’x 571, 574–75 (6th Cir. 2018);

and we do so once more here. Mays is outcome determinative on the federal-officer removal issue

and we must follow it. See, e.g., United States v. Lee, 793 F.3d 680, 684 (6th Cir. 2015) (“[A]

later panel of the court cannot overrule the published decision of a prior panel . . . in the absence

of en banc review or an intervening opinion on point by the Supreme Court.”).

        Second, defendants contend 28 U.S.C. § 1441(a)’s federal question removal provision

applies because plaintiffs’ complaint (1) presents a “substantial federal question” as plaintiffs’

“claims are inextricably intertwined with the construction, interpretation, and effect of the SDWA

and the LCR”; and (2) alleges two causes of action under the SDWA for which the district court

had original jurisdiction.       With respect to the former, in Mays we found unpersuasive the

defendants’ contention that the plaintiffs’ state-law tort claims were “inextricably related to the

interpretation of the LCR” and reiterated that “garden-variety tort claims” “arising out of violations

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Waid, et. al. v. Busch, et al.


of a federal statute do not merit federal jurisdiction.” 871 F.3d at 449–50; see also Nappier, 728 F.

App’x at 575 (similar). Defendants largely duplicate the same arguments they made in Mays (and

in Nappier), and articulate no reason why Mays does not equally control here. (After mentioning

Mays as the district court’s basis for rejecting their substantial federal question argument,

defendants’ brief does not mention it again.)

        As to the latter, we agree with the district court that although counts three and four of

plaintiffs’ complaint purport to raise standalone SDWA violations, they do not. The SDWA’s

citizen-suit provision allows “any person [to] commence a civil action on his own behalf . . .

against any person . . . who is alleged to be in violation of any [SDWA] requirement,” and grants

district courts with jurisdiction to hear such actions. 42 U.S.C. § 300j-8(a)(1). As we recognized

in Mays, this cause of action is limited—“there is no private right of action for damages arising

from a violation of the SDWA or the LCR.” 871 F.3d at 450. Plaintiffs may only seek prospective

injunctive relief for ongoing violations, and, if successful, may recover costs and fees. See

42 U.S.C. § 300j-8(d).      Here, counts three and four allege violations of the SDWA, more

specifically the LCR’s notification provisions (count three) and its corrosion control requirements

(count four). (Citing 40 C.F.R. §§ 141.85(d)(1), (d)(2); 141.82(g)). Count three does not seek any

specific relief, and count four “demand[s] a judgment in excess of Twenty-Five Thousand

($25,000.00) Dollars, together with costs, interest and attorney fees.” Neither count approaches

requesting injunctive relief for these alleged violations,1 and we therefore agree with the district


        1
         We acknowledge plaintiffs’ complaint mentions injunctive relief in two ways. First,
paragraph 127 generally seeks “injunctive relief as allowed by law and required by justice,
including, but not limited to, an order compelling Defendants to take specific actions to cleanup,
remediate, and/or correct the contamination, and any other action this court deems just.” Counts
three and four incorporate this paragraph by reference. Second, paragraphs 205–11 provide the
basis for plaintiffs’ count five, a request for injunctive and declaratory relief to prevent water shut-
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Waid, et. al. v. Busch, et al.


court that these counts are best characterized as the ways in which plaintiffs contend defendants

breached duties in support of their state law claims. This is insufficient to confer federal-question

jurisdiction. See Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 814 (1986).

        For these reasons, we affirm the judgment of the district court.




offs based upon plaintiffs’ failure to pay for water services. These generalized averments do not
request an order from the district court requiring defendants to cure the asserted SDWA violations,
and we therefore find unpersuasive defendants assertions that federal-question jurisdiction is
proper based on these requests.
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