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
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.
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
B. STRANCH, Circuit Judge.
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.
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.
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).
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
Procedural History of Boler v. Earley
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).
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.
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.
Procedural History of Mays v. Snyder
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; 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; the State of Michigan; and
the City of Flint.
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.
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).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.
"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).
Preclusion of § 1983 Claims by the Safe Drinking Water
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).
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 ...