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Boler v. Earley

United States Court of Appeals, Sixth Circuit

July 28, 2017

Beatrice Boler; Edwin Anderson; Allina Anderson; Epco Sales, LLC, Plaintiffs-Appellants,
Darnell Earley; Gerald Ambrose; Dayne Walling; City of Flint; State of Michigan; Michigan Department of Environmental Quality; Michigan Department of Health and Human Services; Richard Dale Snyder, Defendants-Appellees. Melissa Mays; Michael Mays; Jacqueline Pemberton; Keith John Pemberton; Elnora Carthan; Rhonda Kelso, Plaintiffs-Appellants,
Rick Snyder; State of Michigan; Daniel Wyant; Liane Shekter Smith; Adam Rosenthal; Stephen Busch; Patrick Cook; Michael Prysby; Bradley Wurfel; Darnell Earley; Gerald Ambrose; Dayne Walling; Howard Croft; Michael Glasgow; Daugherty Johnson; City of Flint; Nick Lyon; Andy Dillon; Edward Kurtz; Jeff Wright, Defendants-Appellees.

          Argued: June 15, 2017

         Appeal from the United States District Court for the Eastern District of Michigan at Ann Arbor. Nos. 5:16-cv-10323; 5:15-cv-14002-John Corbett O'Meara, District Judge.


          16-1684: Nicholas A. Szokoly, MURPHY, FALCON & MURPHY, Baltimore, Maryland, for Appellants. William Y. Kim, CITY OF FLINT, Flint, Michigan, for Flint Appellees. Margaret Bettenhausen, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for State Appellees.

          17-1144: Samuel R. Bagenstos, Ann Arbor, Michigan, for Appellants. Margaret A. Bettenhausen, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellees State of Michigan, Snyder, Lyon, and Dillon. William Y. Kim, CITY OF FLINT, Flint, Michigan, for Flint Appellees.

         ON BRIEF:

          16-1684: Nicholas A. Szokoly, Jason G. Downs, Jessica H. Meeder, MURPHY, FALCON & MURPHY, Baltimore, Maryland, for Appellants. William Y. Kim, CITY OF FLINT, Flint, Michigan, Frederick A. Berg, Jr., Sheldon H. Klein, BUTZEL LONG, P.C., Detroit, Michigan, for Flint Appellees. Margaret Bettenhausen, Richard S. Kuhl, Nathan A Gambill, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, Eugene Driker, Morley Witus, Todd R. Mendel, BARRIS, SOTT, DENN & DRIKER, PLLC, Detroit, Michigan, for State Appellees. Samuel R. Bagenstos, Ann Arbor, Michigan, for Amicus Curiae.

          17-1144: Samuel R. Bagenstos, Ann Arbor, Michigan, Michael L. Pitt, Cary S. McGehee, Beth M. Rivers, PITT MCGEHEE PALMER & RIVERS, PC, Royal Oak, Michigan, Paul F. Novak, Gregory Stamatopolous, Diana Gjonaj, WEITZ & LUXENBERG, PC, Detroit, Michigan, William H. Goodman, Julie H. Hurwitz, GOODMAN & HURWITZ, PC, Detroit, Michigan, Deborah A. LaBelle, LAW OFFICE OF DEBORAH A. LABELLE, Ann Arbor, Michigan, for Appellants. Margaret A. Bettenhausen, Richard S. Kuhl, Nathan A. Gambill, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellees State of Michigan, Snyder, Lyon, and Dillon. William Y. Kim, CITY OF FLINT, Flint, Michigan, Frederick A. Berg, Jr., Sheldon H. Klein, BUTZEL LONG, P.C., Detroit, Michigan, Todd R. Perkins, Nikkiya Branch, THE PERKINS LAW GROUP PLLC, Detroit, Michigan, Alexander S. Rusek, WHITE LAW PLLC, Okemos, Michigan, EDWARD A. ZEINEH, DAVID W. MEYERS, LAW OFFICE OF EDWARD A. ZEINEH, Lansing, Michigan, Barry A. Wolf, LAW OFFICE OF BARRY A. WOLF PLLC, Flint, Michigan, BRETT T. MEYER, O'NEILL, WALLACE & DOYLE, P.C., Saginaw, Michigan, for Flint Appellees.

          Michael J. Pattwell, Jay M. Berger, Christopher B. Clare, CLARK HILL PLC, Detroit, Michigan, Thaddeus E. Morgan, FRASER TREBILCOCK, Lansing, Michigan, Charles E. Barbieri, Allison M. Collins, FOSTER, SWIFT, COLLINS & SMITH, Lansing, Michigan, Phillip A. Grashoff, Jr., Dennis K. Egan, Krista A. Jackson, KOTZ SANGSTER WYSOCKI, Bloomfield Hills, Michigan, for Appellees Busch, Cook, Prysby, Rosenthal, Smith, Wurfel, and Wyant. Gregory M. Meihn, FOLEY & MANSFIELD, P.L.L.P., Ferndale, Michigan, Joseph F. Galvin, GENESEE COUNTY DRAIN COMMISSION, Flint, Michigan, for Appellee Wright. Sarah C. Tallman, NATURAL RESOURCES DEFENSE COUNCIL, Chicago, Illinois, Dimple Chaudhary, NATURAL RESOURCES DEFENSE COUNCIL, Washington, D.C., Michael J. Steinberg, Bonsitu A. Kitaba, AMERICAN CIVIL LIBERTIES UNION FUND OF MICHIGAN, Detroit, Michigan, for Amicus Curiae.

          Before: COLE, Chief Judge; STRANCH and DONALD, Circuit Judges.


          JANE B. STRANCH, Circuit Judge.

          These two cases arise from the water contamination crisis in Flint, Michigan. Plaintiffs, residents of Flint affected by the contaminated city water, bring suit against various state and local officials and entities, alleging violation of their constitutional rights, pursuant to 42 U.S.C. § 1983, along with other claims. In Boler, the district court determined that the § 1983 claims were preempted by the Safe Drinking Water Act (SDWA) and dismissed the case for lack of subject matter jurisdiction. Relying on its preemption analysis in Boler, the court dismissed the Mays case. The cases have been consolidated on appeal. For the reasons explained below, we REVERSE the judgment of the district court and REMAND for further proceedings.

         I. BACKGROUND

         A. Factual Background

         In March 2011, the Michigan state Legislature passed the Local Government and School District Fiscal Accountability Act ("Act 4"), which authorized the governor to appoint an emergency manager for certain local governments. Act 4 replaced an earlier Michigan law, the Local Government Fiscal Responsibility Act ("Act 72"), which had been in effect since 1990. Act 72 gave the State power to appoint an emergency financial manager to municipalities facing financial crises. Act 4 expanded the scope of the powers granted to these emergency financial managers and changed their title to simply "emergency managers." New emergency managers were subsequently appointed in several areas; in August 2012, Governor Rick Snyder appointed Edward Kurtz in Flint.

         On November 5, 2012, Michigan voters rejected Act 4 by referendum. This revived Act 72. See Mich. Op. Att'y Gen. No. 7267, 2012 WL 3544658, at *6 (Aug. 6, 2012). In December, the Michigan Legislature responded by enacting the Local Financial Stability and Choice Act ("Act 436"), effective March 28, 2013. Under Michigan law, a public act with an appropriations provision is not subject to referendum. See In re City of Detroit, 504 B.R. 191, 252 (Bankr. E.D. Mich. 2013) (citing Mich. United Conservation Clubs v. Sec'y of State, 464 Mich. 359, 367 (2001)). Unlike Act 4, Act 436 added appropriations provisions that prevented voters from subjecting it to a referendum. Id. at 251. Act 436, like Act 4, authorized the State to appoint emergency managers with authority to exercise the power of local governments. See Phillips v. Snyder, 836 F.3d 707, 711 (6th Cir. 2016).

         Following the passage of Act 436, Kurtz resumed his status as named Emergency Manager for the City of Flint, and remained in that post until July 2013. In November 2013, Governor Snyder appointed Darnell Earley as Emergency Manager for the City of Flint. In January 2015, Earley was replaced by Gerald Ambrose.

         Between 1967 and 2014, the City of Flint sourced its water from Lake Huron via the Detroit Water and Sewerage Department (DWSD). On March 29, 2013, one day after Act 436 went into effect, the City of Flint decided to join a water supplier, the Karegnondi Water Authority (KWA), that was to be established. Sourcing water for Flint had been under review. In 2011, Flint had commissioned a study ("2011 Report" or "Report") to evaluate the cost of treating water from the Flint River for municipal use as an alternative to either purchasing from the future KWA or continuing its existing contract with DWSD. The Report determined that water from the Flint River would need to be treated to meet current water safety regulations. It also concluded that the cost of treating water from the Flint River to provide safe municipal use would be greater than the proposed KWA contract, but less than continuing the contract with DWSD. The officials thus decided to go with the cheapest long-term option-the KWA.

         Shortly after the decision to switch to the KWA was made, DWSD notified Flint that its current contract would terminate in approximately one year, in April 2014. Because the KWA would take several years to construct, officials were tasked with choosing an interim water source: the Flint River or DWSD. Officials chose the Flint River. Genesee County, which includes Flint but is, according to the Defendants, "[j]urisdictionally separate and distinct from the City of Flint, " had also decided to switch its future water supply to the KWA. Unlike the City of Flint, Genesee County officials opted to continue to purchase DWSD water during the KWA's construction. The Defendants state that this was because Genesee County, unlike Flint, does not have its own water treatment plant.

          In April 2014, Flint's emergency manager changed the source of the city's water from DWSD to the Flint River. The plaintiffs assert that at this time, the City knew "that the Flint River could not be a source of safe municipal water unless it underwent significant treatment, including the addition of anti-corrosive agents and treatment for microbial contaminants, " as explained by the 2011 Report. The Report itself states that its comparison to other alternatives "assumed that the Flint [water treatment plant] w[ould] treat water from the river to provide a finished water of similar quality to other alternatives being considered." There is no evidence that the City upgraded the treatment plants or provided for additional safety measures prior to switching water supply sources on April 25, 2014. The Defendants contend that they operated in accordance with the SDWA's Lead and Copper Rule, which requires a two-step process that begins with "initial monitoring" over two separate six-month periods to determine if treatment is required. The first six-month period did not begin until June 2014.

         Following the switch to the Flint River, residents immediately began to complain that the drinking water "smelled rotten, looked foul, and tasted terrible." Larger problems with the water supply soon became apparent. Testing conducted in August and September 2014 detected coliform and E. coli bacteria in the water supply. In October 2014, the water was linked to Legionnaire's disease. General Motors discontinued its water service because the Flint River water was corroding its parts.

         In January 2015, the City issued a notice that the drinking water violated standards, but that it was safe to drink. In February 2015, further water testing indicated high levels of contaminants such as lead and total trihalomethane. The Defendants state that the City conducted its two required rounds of sampling to determine lead levels, from July to December 2014 and January to June 2015, but the results did not exceed the SDWA Lead and Copper Rule's "action level." The results did indicate that corrosion control treatment measures were needed to counteract lead levels, which "had risen since switching to the Flint River." In March 2015, the Flint City Council voted to reconnect with DWSD rather than continuing to use the Flint River water supply, but the City government's vote was overruled by the Emergency Manager.

          Over the next few months, the City issued instructions to residents on their use of water, including advising them to "pre-flush" taps prior to use or to stop drinking the water altogether. In June 2015, the EPA warned of high lead levels in the water. In response, officials provided consumers with water filters, which the Plaintiffs state did not substantially improve the water quality and were incapable of filtering out known contaminants.

         In October 2015, Genesee County declared a public health emergency in Flint, advising residents not to drink the water. That same month, the Emergency Manager ordered that Flint reconnect to DWSD. By that point, however, the protective coating in the water supply pipes had been damaged by water from the Flint River, and until the coating could "buil[d] up to appropriate levels, " the water would continue to have elevated lead levels. The EPA issued an advisory to Flint residents in February 2016, warning them that unfiltered water was not safe and advising the use of bottled water, especially for young children and pregnant women. Many of these advisories are currently still in place, and Flint remains in a state of emergency.

         Flint residents have been billed continuously for their water services since April 2014. The City of Flint has engaged in collection efforts when payments have not been made, including disconnecting water service altogether and issuing liens against real property. The Defendants state that Michigan is providing funds for the reimbursement of water bills, as well as making other efforts to ameliorate the effects of the water crisis.

         On January 25, 2016, the Michigan Civil Rights Commission passed a resolution to hold a series of hearings to determine the impact of the Flint water contamination crisis on the civil rights of Michigan's citizens. The Commission, appointed by the Governor, held three hearings that included "expert testimony focusing on the history of Flint's economy and housing, environmental justice, and the application of the . . . emergency manager law." Michigan Civil Rights Commission, The Flint Water Crisis: Systemic Racism Through the Lens of Flint iii (Feb. 17, 2017). The Commission's 130-page report determined that the response to the Flint water crisis was "the result of systemic racism, " Id. at 2., and that its finding was "based on a plethora of events and policies that so racialized the structure of public policy that it systemically produced racially disparate outcomes adversely affecting a community that is primarily made up of people of color." Id. at 6.

          B. Procedural History of Boler v. Earley

         Plaintiffs Beatrice Boler, Pastor Edwin Anderson and Mrs. Alline Anderson, and EPC Sales, LLC, a Flint business, brought a class action on behalf of purchasers of Flint water. They brought suit against Darnell Earley and Gerald Ambrose, both former emergency managers of Flint; Dayne Walling, the former mayor of Flint; the City of Flint; Governor Rick Snyder; the State of Michigan; the Michigan Department of Environmental Quality (MDEQ); and the Michigan Department of Health and Human Services (MDHHS).

         The Plaintiffs filed suit in the Eastern District of Michigan on January 31, 2016, alleging twelve causes of action, five of them pursuant to 42 U.S.C. § 1983: (1) impairment of the constitutional right to contract; (2) deprivation of substantive and procedural due process; (3) breach of the duty to protect against state-created danger; (4) breach of the Equal Protection Clause; and (5) deprivation of property interest without due process or just compensation. The Plaintiffs also alleged claims for (6) conspiracy to deprive them of a constitutional right in violation of 42 U.S.C. § 1985; (7) breach of contract; (8) unjust enrichment; (9) breach of implied warranty of merchantability; (10) violation of the Michigan Consumer Protection Act, M.C.L. § 445.903; (11) conversion; and (12) gross negligence.

         The Plaintiffs filed a motion for a preliminary injunction, seeking to enjoin the defendants from billing and collecting money from Flint residents for water. At a status conference following briefing on the preliminary injunction, the district court asked the parties to provide supplemental briefing on whether the court had jurisdiction over the case. The court subsequently dismissed the case for lack of subject matter jurisdiction, finding that the Plaintiffs' § 1983 claims were precluded by the SDWA, leaving only state law claims over which the court did not have jurisdiction. The district court did not address the Plaintiffs' claim under 42 U.S.C. § 1985, but presumably found it similarly preempted by the SDWA. This appeal followed.

         C. Procedural History of Mays v. Snyder

         On November 13, 2015, Plaintiffs Melisa Mays, individually and as next friend of three minor children, Michael Mays, Jacqueline and Keith John Pemberton, Elnora Carthan, and Rhonda Kelso, individually and as next friend of one minor child, filed suit on behalf of a proposed class of Flint residents or regular users of Flint water since April 25, 2014. They sued several defendants: Governor Snyder; former Michigan Treasurer Andy Dillon; Director of MDHHS Nick Lyon; former director of MDEQ Daniel Wyant and six former MDEQ officials[1]; Genesee County Drain Commissioner Jeff Wright; former Flint Emergency Managers Edward Kurtz, Darnell Earley, and Gerald Ambrose; former Flint Mayor Dayne Walling and three former Flint city officials[2]; the State of Michigan; and the City of Flint.

         The Plaintiffs filed an Amended Complaint on May 25, 2016. It alleged six causes of action, four of them under 42 U.S.C. § 1983: (1) violation of substantive due process through state-created danger; (2) violation of substantive due process through an invasion of the fundamental right to bodily integrity; (3) intentional race discrimination in violation of the Equal Protect Clause; and (4) impermissible wealth-based discrimination in violation of the Equal Protection Clause. The Plaintiffs also asserted that the Defendants (5) engaged in a racially-motivated conspiracy to deny equal protection under 42 U.S.C. § 1985, and (6) engaged in discrimination in violation of Michigan's Elliot-Larsen Civil Rights Act, M.C.L. § 37.2302.

         Relying on its finding of preclusion by the SDWA in Boler, the district court dismissed the Mays Plaintiffs' § 1983 claims for lack of subject matter jurisdiction under Rule 12(b)(1).[3]The court also determined that without the § 1983 claims, Plaintiffs' § 1985 claim "based upon the same conduct" also failed. Having dismissed the federal claims, the court declined to exercise supplemental jurisdiction over the state law discrimination claim. Plaintiffs appealed, and their case was consolidated with Boler.

         II. ANALYSIS

         We "appl[y] a de novo standard when reviewing the district court's determination of jurisdiction." Dealer Computer Servs. Inc. v. Dub Herring Ford, 547 F.3d 558, 560 (6th Cir. 2008). Likewise, we review questions of constitutional and statutory interpretations de novo. Communities for Equity v. Mich. High Sch. Athletic Ass'n, 459 F.3d 676, 680 (6th Cir. 2006).

         A. Preclusion of § 1983 Claims by the Safe Drinking Water Act

         The district court's SDWA preemption analysis drew from Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 21 (1981), in which the Supreme Court found that the § 1983 claims presented were preempted by the statutes alleged. The court primarily relied on the First Circuit's determination that the SDWA foreclosed other federal remedies for an alleged right to "safe and potable water." Mattoon v. Pittsfield, 980 F.2d 1, 4-6 (1st Cir. 1992). The Plaintiffs argue that this is not the proper focus of their claims, and more importantly, that the district court misapplied the standard enunciated by the Supreme Court in its line of cases that began with Sea Clammers and concluded with Fitzgerald v. Barnstable School Committee, 555 U.S. 246, 252 (2009).

         The provisions of 42 U.S.C. § 1983 may serve as a vehicle for a plaintiff to obtain damages for violations of the Constitution or a ...

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