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Nappier v. Snyder

United States District Court, W.D. Michigan, Southern Division

March 31, 2017

TAMARA NAPPIER, as mother and next fried of T.N., a minor child, on behalf of T.N. and a class of all others similarly situated, Plaintiff,
v.
RICHARD SNYDER, et al., Defendants.

          OPINION REGARDING JURISDICTION

          GORDON J. QUIST UNITED STATES DISTRICT JUDGE.

         Plaintiff filed this putative class action case in the Michigan Court of Claims on March 23, 2016, against Richard Snyder, Nick Lyon, Eden Wells, Nancy Peeler, and Robert Scott (collectively the State Defendants); Stephen Busch, Patrick Cook, Michael Prysby, Liane Shekter Smith, and Bradley Wurfel (collectively the MDEQ Defendants); and Darnell Early and Gerald Ambrose. Plaintiff alleged a single substantive count of gross negligence and/or negligence against all Defendants arising out of the water crisis in Flint, Michigan.

         On May 31, 2016, Defendant Busch removed the case to this Court, alleging that removal was proper under the federal-officer removal statute, 28 U.S.C. § 1442(a)(1), and, alternatively, under the substantial federal question doctrine arising from 28 U.S.C. § 1441. On February 17, 2017, the Court entered an order cancelling oral argument on Defendants' motions to dismiss and directing the parties to address the Court's concerns regarding subject matter jurisdiction. Pursuant to the February 17, 2017, Order, the MDEQ Defendants, Plaintiff, and the State Defendants have filed responses. Having read the parties' responses, the Court concludes that the MDEQ Defendants were not “acting under” any federal officer or agency when they took the actions set forth in the complaint, and thus were not entitled to remove this case under the federal-officer removal statute. In addition, the Court concludes that it does not have jurisdiction under the substantial federal question doctrine.[1] Accordingly, the Court will remand this case to the Michigan Court of Claims.

         I. Background[2]

         In 2014, as a cost-saving measure, the City of Flint switched its water source from the City of Detroit water system to the Flint River. (ECF No. 1-3 at PageID.43.) In connection with the switch, officials discontinued corrosion-control treatments required by the Environmental Protection Agency's (EPA) Lead and Copper Rule (LCR) and added ferric chloride, which increased the corrosivity of the Flint River water, to reduce formation of trihalomethanes from organic matter. (Id.)

         Plaintiff, the mother and next friend of T.K., a minor, alleges that Defendants knew that the water pumped from the Flint River was toxic and not fit for consumption, but nonetheless assured the public that it was safe to drink. (Id.) Plaintiff further alleges that, in spite of Defendants' assurances, T.K. experienced an elevated blood lead level and suffered permanent brain damage as a result of drinking water from the Flint River. (Id. at PageID.45.) Plaintiff alleges that Defendants were grossly negligent and/or negligent in participating in, or facilitating, the switch to Flint River water as the source of the City of Flint's water. Plaintiff seeks to represent a class of all individuals who were minors, resided in the City of Flint, and suffered brain damage as a result of ingesting water supplied from the Flint River. (Id. at PageID.41.)

         The MDEQ Defendants are current and former employees of the MDEQ who played a part in the City of Flint's change of water sources.

         Defendant Shekter Smith was, until October 19, 2015, the Chief of the Office of Drinking Water and Municipal Assistance for the MDEQ. Plaintiff alleges that Shekter Smith “knowingly participated in, approved of, and caused the decision to transition Flint's water source to a highly corrosive, inadequately studied and treated alternative, ” and made false statements that led to public consumption of the contaminated water. (Id. at PageID.47, ¶ 38.)

         Defendant Wyant was, until December 29, 2015, the Director of the MDEQ. Plaintiff alleges that Wyant “participated in, directed, and oversaw the MDEQ's repeated violations of federal water quality laws, the failure to properly study and treat Flint River water, and the MDEQ's program of systemic denial, lies, and attempts to discredit honest outsiders.” (Id., ¶ 39.) Plaintiff alleges that Defendant Wyant also made false statements that led to continued public consumption of contaminated water. (Id.)

         Defendant Busch was and remains the District Supervisor assigned to the Lansing District Office of the MDEQ. Plaintiff alleges that Busch “participated in MDEQ's repeated violation of federal water quality laws, the failure to properly study and treat Flint River water, and the MDEQ's program of systemic denial, lies, and attempts to discredit honest outsiders.” (Id. at PageID.47-48, ¶ 40.)

         Defendant Cook was and remains a Water Treatment Specialist assigned to the Lansing Community Drinking Water Unit of the MDEQ. Cook is also the manager of that unit and “participated in[, ] approved, and/or assented to the decision to allow Flint's water to be delivered to residents without corrosion control or proper study and/or testing.” (Id. at PageID.48, ¶ 41.)

         Defendant Prysby was and remains an Engineer assigned to MDEQ District 11 (Genesee County). Prysby “participated in, approved, and/or assented to the decision to switch to the water source, failed to properly monitor and/or test the Flint River water, and provid[ed] assurances . . . that the Flint River water was safe when he knew or should have known those statements to be untrue.” (Id., ¶ 42.)

         Defendant Wurfel was, until December 29, 2015, the MDEQ's Director of Communications. Plaintiff alleges that Wurfel was “the MDEQ's principal means of public deception, repeatedly denying the increasingly obvious disaster as it unfolded.” (Id. at PageID.49, ¶ 43.)

         II. ...


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