Waid v. Earley (In re Water)

• Decision Date: 22 May 2020
• Docket Number: Nos. 19-1425/1472/1477/1533,s. 19-1425/1472/1477/1533
• Citation: 960 F.3d 303
• Parties: IN RE: FLINT WATER CASES. Luke Waid, Parent and Next-Friend of SR, a minor, et al., Plaintiffs, Elnora Carthan et al., Plaintiffs-Appellees, v. Darnell Earley, Gerald Ambrose, Howard Croft, Michael Glasgow, Daugherty Johnson, and City of Flint, Michigan; Richard Dale Snyder, former Governor of Michigan, Andy Dillon, former Treasurer of Michigan, and Gretchen Whitmer, present Governor of Michigan; Liane Shekter-Smith, Stephen Busch, Patrick Cook, Michael Prysby, and Bradley Wurfel; and Adam Rosenthal, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

960 F.3d 303

IN RE: FLINT WATER CASES.

Luke Waid, Parent and Next-Friend of SR, a minor, et al., Plaintiffs,

Elnora Carthan et al., Plaintiffs-Appellees,

v.Darnell Earley, Gerald Ambrose, Howard Croft, Michael Glasgow, Daugherty Johnson, and City of Flint, Michigan; Richard Dale Snyder, former Governor of Michigan, Andy Dillon, former Treasurer of Michigan, and Gretchen Whitmer, present Governor of Michigan; Liane Shekter-Smith, Stephen Busch, Patrick Cook, Michael Prysby, and Bradley Wurfel; and Adam Rosenthal, Defendants-Appellants.

Nos. 19-1425/1472/1477/1533

United States Court of Appeals, Sixth Circuit.

Argued: April 27, 2020

Decided and Filed: May 22, 2020

CONCURRING IN THE JUDGMENT IN PART AND DISSENTING IN PART

OPINION

KAREN NELSON MOORE, Circuit Judge.

This is a case about the Flint Water Crisis. From 2014 to 2015, City of Flint and Michigan State officials caused, sustained, and covered up the poisoning of an entire community with lead- and legionella -contaminated water. The crisis started in April 2014 when the City began delivering Flint River water to its predominantly poor and African-American residents, knowing that it was not treated for corrosion. In a matter of weeks, Flint residents reported that there was something wrong with the way the water looked, tasted, and smelled, and that it was causing rashes. In response, the City treated the water with additional chlorine—exacerbating the corrosion in the old water lines. The corrosion contaminated the water with hazardous levels of lead and caused an outbreak of Legionnaires’ disease

. State and City officials failed to stop the delivery of Flint River water and obstinately assured the public that the water was safe, when they knew it was not. Now, Flint residents can expect to see their children permanently developmentally stunted. It has been six years since the start of the crisis and corroded pipes still infect the water and poison the people of Flint. The question before us is whether these Defendants-Appellants allegedly responsible for the crisis are immune from suit.

This appeal arises out of a consolidated class action in the In re Flint Water Cases litigation. It follows from the denial of motions to dismiss certain defendants based on qualified and absolute immunity. The Plaintiffs-Appellees are individuals affected by the Flint Water Crisis.¹ The Defendants-Appellants are City and State officials and the City of Flint.² Plaintiffs-Appellees claim that City and State officials’ deliberate indifference to their being poisoned violated their substantive due process right to bodily integrity, a constitutional claim we have already recognized in Guertin v. Michigan , 912 F.3d 907, 921 (6th Cir. 2019), cert. denied , ––– U.S. ––––, 140 S. Ct. 933, 205 L.Ed.2d 522 (2020). Acknowledging that Guertin controls, Defendants-Appellants contend that their alleged individual conduct does not plausibly amount to a constitutional violation. Or, in the case of the City of Flint and Governor Whitmer,³ that the Eleventh Amendment requires their dismissal from this action—an argument we rejected in prior appeals. See Guertin , 912 F.3d at 936 ; Boler v. Earley , 865 F.3d 391, 412–13 (6th Cir. 2017), cert. denied , ––– U.S. ––––, 138 S. Ct. 1281, 200 L.Ed.2d 469 (2018).

We AFFIRM the district court’s denial of the motions to dismiss with respect to every Defendant-Appellant except Treasurer Dillon. We REMAND for the district court to decide whether Dillon should be dismissed in light of its decision in Brown v. Snyder (In re Flint Water Cases) , No. 18-cv-10726, 2020 WL 1503256, at *9 (E.D. Mich. Mar. 27, 2020).

I. BACKGROUND⁴

Plaintiffs allege that, from June 2013 through April 25, 2014, City and State officials created a public health crisis. R. 620-3 (Fourth Am. Compl. at 47–48, ¶ 133) (Page ID #17850–51). Officials "ordered and set in motion the use of highly corrosive and toxic Flint River water knowing that the [treatment plant] was not ready." Id . "By January 29, 2015, State officials understood that the public health crisis was caused by the corrosion of the entire infrastructure of the Flint water system. Yet no action was taken to warn the public of the health crisis or to correct the harm." Id. at 81, ¶ 238 (Page ID #17884).⁵ Accordingly, "the complaint alleges constitutional violations that occurred during two relevant periods: (1) the period leading up to the April 2014 switch to the Flint River, during which Defendants were callously indifferent to the facts showing that the water would be dangerous; and (2) the 18-month period from April 2014 to October 2015, during which Defendants were callously indifferent to the mounting evidence that the water was actually causing serious harm, including death." Appellees Br. at 4–5.

A. The Switch to the Flint River

The City of Flint did not always receive its water from the Flint River. For decades, the City received clean water from Lake Huron through the Detroit Water and Sewerage Department ("DWSD"). R. 620-3 (Fourth Am. Compl. at 34–35, ¶¶ 86–91) (Page ID #17837–38). At some point, however, the City became concerned with the DWSD’s cost and decided to look into alternative water sources. Id. at 35–37, ¶ 92 (Page ID #17838–40). In 2011, City officials had a study conducted to see if the Flint River could be used as a safe water source if it was processed through the old Flint Water Treatment Plant ("FWTP"). Id. at 33–34, ¶¶ 82–86 (Page ID #17836–37); id. at 36–37, ¶ 92 (Page ID #17839–40). The reports issued from the study concluded that Flint River water could meet regulatory requirements if properly treated—but that would require over $69 million in improvements to the FWTP, including improvements that would protect the water from corrosion. Id. at 36–37, ¶ 92 (Page ID #17839–40). For the moment, the City decided against switching to the Flint River as its primary drinking source. Id. at 37, ¶ 94 (Page ID #17840).

But by August 2012, the City was embroiled in a financial emergency, leading Governor Snyder to appoint Edward Kurtz as Emergency Manager for the City. Id. at 38–39, ¶ 101 (Page ID #17841–42). In Michigan, the State can appoint emergency managers to take over financially distressed cities, control their operations, and rein in spending. See Guertin , 912 F.3d at 939 ; R. 620-3 (Fourth Am. Compl. at 39, ¶ 102) (Page ID #17842). To carry out their mission, emergency managers are granted "broad powers" to "act for and in the place and stead of the governing body and the office of chief administrative officer of the local government." MICH. COMP. LAWS § 141.1549(2).

As Emergency Manager, Kurtz made a pitch to Governor Snyder and State Treasurer Andy Dillon that the City of Flint should switch to receiving water from an altogether new source, the Karegnondi Water Authority ("KWA"). R. 620-3 (Fourth Am. Compl. at 38–39, ¶ 101–02) (Page ID #17841–42). The DWSD, on the other hand, made its case to Snyder, Dillon, and Kurtz that its water was cheaper and more reliable. Id. at 39, ¶ 103 (Page ID #17842). Caught between competing offers, Dillon requested an independent assessment of cost effectiveness for each plan by the engineering firm of Tucker, Young, Jackson and Tull ("TYJT"). Id. at 39–40, ¶ 104 (Page ID #17842–43). In February 2013, TYJT informed Dillon that "it would be more cost-effective for Flint on both a short term and long term basis to continue to be supplied with water from DWSD." Id . Accordingly, on March 17, 2013, Treasurer Dillon wrote to Governor Snyder that "the KWA representatives were misrepresenting the benefits of the deal and that the ‘(r)eport that I got is that Flint should stay w DWSD.’ " Id. Then, on March 28, 2013, Dillon reversed course and emailed Snyder recommending that he authorize the City of Flint’s switch to the KWA, noting that Kurtz, the Mayor, and City Council all supported that decision. Id. at 41, ¶ 107 (Page ID #17844). Even though the KWA was more costly than the DWSD, the City would be able to borrow funds to pay its share of the project if it obtained an Administrative Consent Order ("ACO") from a State Agency attesting to need due to "fire, flood, or other calamity." Id. at 127, ¶¶ 375–76 (Page ID #17930).

The Michigan Department of Environmental Quality ("MDEQ") ultimately backed the interim plan, even though it knew "that the decision to switch the water source for Flint was not based on a scientific assessment of the suitability of the Flint River water." Id. at 40–41, ¶ 106 (Page ID #17843–44). The MDEQ Deputy Director wrote, "[W]e are in a situation with Emergency Financial Managers so it’s entirely possible that they will be making decisions relative to cost." Id. In March 2013, MDEQ officials, including Stephen Busch and Liane Shekter-Smith, knew that "the use of Flint River water would pose increased health risks to the public ..., the triggering of additional regulatory requirements, and significant upgrades to the Flint Water Treatment Plant." Id. at 40, ¶ 105 (Page ID #17843).

In 2013, both the City of Flint and the City of Detroit were under State emergency management. Id. at 42, ¶ 114 (Page ID #17845). As Governor, "Snyder was briefed on reports from both Flint’s and Detroit’s emergency managers and issued directions to both managers as it related to the transition" away from the DWSD. Id. Thus, "Governor Snyder was personally involved in the decisional process which led to the transition from DWSD to the KWA." Id. On April 4, 2013, Snyder’s Chief of Staff emailed him, stating "(a)s you know, the Flint people have requested Dillon’s ok to break away from the DWSD." Id. at 43, ¶ 115 (Page ID #17846). Snyder then instructed Dillon, Kurtz, Detroit’s Emergency Manager, and other key players to have the DWSD submit one last offer to the City of Flint. Id. The DWSD did so, Kurtz rejected the offer, and Snyder "authorized Kurtz, through Department of Treasury officials, to enter into a contractual relationship with KWA for the purpose of...