Walters v. City of Flint (In re Flint Water Cases)

Decision Date07 September 2022
Docket Number17-10164,19-13359
PartiesIn re Flint Water Cases. v. City of Flint, et al. This Order Relates To Walters, et al. Meeks, et al. v. United States,
CourtUnited States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)

ORDER DENYING THE UNITED STATES' MOTION FOR CERTIFICATION OF AN INTERLOCUTORY APPEAL [320]

Judith E. Levy United States District Judge

Flint residents sued the United States Environmental Protection Agency (EPA) under the Federal Tort Claims Act (“FTCA”), alleging that they were harmed by its negligent response to the Flint Water Crisis. The United States moved to dismiss for lack of subject matter jurisdiction. This Court denied that motion, holding that the EPA's conduct (1) would permit a finding of liability under Michigan law, (2) was not protected by the misrepresentation exception, and (3) was not protected by the discretionary function exception. In re Flint Water Cases 482 F.Supp.3d 601 (E.D. Mich. 2020) (the “EPA Order”).

Now before the Court is the United States' Motion for Certification of an Interlocutory Appeal under 28 U.S.C § 1292(b). For the reasons set forth below, the motion is denied.

I. BACKGROUND

The Court adopts in full the factual background set forth in its order denying the United States' motion to dismiss. EPA Order, 482 F.Supp.3d at 608-615.

II. LEGAL STANDARD

A district court's orders are ordinarily subject to appeal only when final. 28 U.S.C. § 1291. Under a narrow statutory exception, however, a court may permit the appeal of a non-final order if it is “of the opinion that such order involves [1] a controlling question of law [2] as to which there is substantial ground for difference of opinion and [3] that an immediate appeal from the order may materially advance the ultimate termination of the litigation ....” 28 U.S.C. § 1292(b); see also In re Trump, 874 F.3d 948, 950-51 (6th Cir. 2017).

The moving party has the burden to show that each requirement of § 1292(b) is satisfied, see In re Miedzianowski, 735 F.3d 383, 384 (6th Cir. 2012), and the district court must “expressly find in writing that all three § 1292(b) requirements are met,” Couch v. Telescope Inc., 611 F.3d 629, 633 (9th Cir. 2010); § 1292(b). Interlocutory appeals are “granted sparingly and only in exceptional cases.” In re City of Memphis, 293 F.3d 345, 350 (6th Cir. 2002).

III. ANALYSIS

“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.” In re Flint Water Cases, 960 F.3d 303, 310 (6th Cir. 2020). This litigation arises out of that crisis. Plaintiffs argue that Flint's water crisis was compounded by the EPA's slow and ineffective response. They now seek federal accountability for that failure.

Little about this case is ordinary or routine. But not every difficult or important case is appropriate for an interlocutory appeal. If bad facts make bad law, undeveloped facts certainly do not improve matters. That is why interlocutory appeals are a disfavored tool, appropriate only where the quick resolution of a clean question of law could meaningfully speed up the litigation. See, e.g., United States v. MacDonald, 435 U.S. 850, 853 (1978); In re City of Memphis, 293 F.3d at 350.

The United States characterizes this complex case as one of merely a series of discrete, clean legal questions-questions it says are all independently controlling, wrongly decided, and subject to reasonable disagreement. But this is far from the case. For the reasons set forth below, none of the Court's rulings meet all three of the § 1292(b) factors. Accordingly, interlocutory appeal is not appropriate.

The United States is right on one point, however: the EPA Order incorrectly relied on Indian Towing Co. v. United States, 350 U.S. 61 (1955). As is explained below, the Court reconsiders that portion of its order.

A. Michigan Substantive Law Would Permit a Finding of Liability

The United States first argues that the Court erred when it held that Michigan law would permit a finding against it if the EPA were a private individual. As the Court explained in the EPA Order, the United States is subject to tort liability “in the same manner and to the same extent as a private individual under like circumstances.” EPA Order, 482 F.Supp.3d at 617 (citing 28 U.S.C. § 2674). The Court applied Michigan law and conducted a “Good Samaritan” analysis, which required it to answer three questions: “1) did the United States undertake to render services to another; 2) was the United States negligent in its undertaking; and 3) if so, do any of the three ... factors described in § 324A(a)-(c) apply here.” Id. at 517. The Court held that the Good Samaritan doctrine applies to the EPA's alleged conduct and that “the United States can therefore be found liable under the [Federal Tort Claims Act].”[1] Id.

The United States concedes that the Court correctly articulated Michigan law but claims that reasonable jurists might differ on “several of the constituent questions.” (ECF No. 320, PageID.12757.) But it is indisputable that in Michigan, “those who undertake to perform a service for a third party thereby take on a duty to use ordinary care to avoid physical harm to all foreseeable persons and property.” In re Flint Water Cases, No. 17-11726, 2021 WL 5237197 at *3-4 (E.D. Mich., Nov. 10, 2021) (collecting cases); see also In re Flint Water Cases, 579 F.Supp.3d 971 (E.D. Mich. 2022) (“VNA Opinion”); Hill v. Sears, Roebuck and Co., 492 Mich. 651, 660 (2012); Loweke v. Ann Arbor Ceiling and Partition Co., 489 Mich. 157, 166 (2011). And the EPA was-again, unquestionably-engaged in an undertaking in Flint. As Judge Parker concluded in a lawsuit with identical facts, “the EPA undertook to render services to Plaintiffs by engaging in oversight, including monitoring, of the State's and local water systems' compliance with the [Safe Water Drinking Act] SDWA and by responding directly to citizen complaints.” Burgess v. United States, 375 F.Supp.3d 796, 817-19 (E. D. Mich. 2019).

The United States does not dispute any of this. Instead, it claims that the Court did not engage in a sufficiently detailed analysis of the “specific acts” it took in Flint. (ECF No. 320, PageID.12757). According to the United States, such an analysis would have revealed many individual undertakings rather than a single omnibus one. Id. That argument reveals an improperly narrow view of the law of negligence. Every undertaking can be reconceived as many small undertakings: consider the contractor whose single task to build a walkway could be reimagined as consisting of many individual tasks to lay bricks. Such conceptual gymnastics cannot help a negligent party evade liability. They do not help the EPA here.

The United States is right to point out that the factual contours of its undertaking have yet to be fully determined. But it would be premature to determine the precise extent of the United States' undertaking at the motion to dismiss stage. At summary judgment, the United States may argue that its undertakings were more limited than Plaintiffs claim. Cf. VNA Opinion, 579 F.Supp.3d 971 (determining bounds of water engineer's liability at summary judgment). At issue here-and in the underlying EPA Order-is only a narrower question: whether the United States' undertaking in Flint was sufficient to permit a finding of liability under Michigan law. That question is governed by uncontroversial principles of negligence law; the answer is yes. Remaining “constituent questions” about the EPA's “specific acts” in Flint do not qualify this case for an interlocutory appeal. To the contrary, “the antithesis of a proper § 1292(b) appeal is one that turns on.. .whether the district court properly applied settled law to the facts or evidence of a particular case.” McFarland v. Conseco Servs., 381 F.3d 1251, 1259 (11th Cir. 2004).

This much is clear: the EPA undertook to oversee and monitor the Flint water system's compliance with the SDWA, to respond to Flint citizens' concerns, and to communicate with the public and the Michigan Department of Environmental Quality (“MDEQ”) about the safety of Flint's drinking water. There is sufficient evidence drawn from the jurisdictional discovery to suggest that the EPA's negligent undertaking of those tasks foreseeably caused Plaintiffs' physical harm. See EPA Order 482 F.Supp.3d at *611-614. Well-established Michigan law would permit a finding of liability on those facts. Plaintiffs' case may not be an easy one. But this Court's application of uncontroversial principles of negligence law to a difficult case with a still-developing factual record is unsuited to an interlocutory appeal. MacDonald, 435 U.S. at 853;

McFarland, 381 F.2d at 1259.

B. The Misrepresentation Exception Does Not Apply

The United States next argues that the Court should have applied the misrepresentation exception to shield the EPA from liability. This argument is meritless. No doubt, the Court's holding that the misrepresentation exception is limited to financial or commercial misrepresentations is subject to reasonable dispute. The circuits “have reached discordant answers” to this question. Carter v. United States, 725 F.Supp.2d 346, 357 (E.D.N.Y. 2010). But this ruling was not “controlling,” 28 U.S.C. § 1292(b), because the Court also found that the EPA's misrepresentations were “not essential” to the Plaintiffs' claims. EPA Order, 579 F.Supp.3d at 639. And the Supreme Court has held that where misrepresentations are not essential to an otherwise actionable claim, the misrepresentation exception will not apply. Block v. Neal, 460 U.S. 289, 296n5 (1983).

That holding makes good sense. Without it, negligent parties...

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