The Circuit Court of Appeals for the Sixth Circuit has held that
residents of Flint, Michigan, may pursue class claims against state actors in
state court. Mays v. City of Flint, 47 E.L.R. 20112, No. 16-2484, (6th
Cir., September 11, 2017). In January
2016, several plaintiffs filed a class-action lawsuit in state court alleging
they had been harmed since April 2014 by the toxic condition of the Flint water
supply. In April 2016, defendants sought removal under 28 U.S.C. §1442, the
federal-officer removal statute, and 28 U.S.C. §1441, which allows removal of
state court actions that involve substantial federal questions. State officials
from the Michigan Department of Environmental Quality (MDEQ) claimed they were
being sued for actions they took while acting under the direction of EPA, which
delegated primary enforcement authority to the MDEQ to implement the Safe Water
Drinking Act in Michigan.
The Court disagreed, affirming remand to state court. The Sixth Circuit held no federal question
was presented on the face of the complaint, and simply complying with a
regulation is insufficient, even if the regulatory schedule is highly detailed
and the MDEQ’s activities are highly supervised and monitored. Further, the Court found federal-officer
removal was not warranted, even though the MDEQ had to periodically submit
reports to the EPA detailing compliance with regulations that had been adopted
into state law. The Court held that
compliance reporting, even if detailed, is insufficient by itself to warrant
federal-officer removal. The Court noted
that even though the EPA had authority to intervene in the case, Michigan was
governing itself when the alleged actions and inactions giving rise to
plaintiffs’ claims occurred.
