On March 23, 2016, a resident of Flint, Michigan filed this class action lawsuit in the Michigan Court of Claims on behalf of her child and all other children in Flint who suffered brain damage from drinking unsafe tap water during the Flint water crisis. The plaintiff sued numerous state officials, including the Governor and Flint emergency managers. Represented by private counsel, the plaintiff sought class certification, declaratory relief, compensatory and exemplary damages, and attorneys’ fees and costs. The plaintiffs alleged the defendants were grossly negligent because they continued to “falsely reassure the public” that the water was safe despite evidence to the contrary.

Specifically, the plaintiffs alleged that, shortly after Flint officials began using water from the Flint River in 2013, the defendants began to receive complaints from residents about the color, taste, and odor of the water. By August 2014, Flint water tested positive for E. coli. and several “boil water” advisories were issued by the city of Flint through September 2014. But the water also contained lead, and boiling the water increased its lead concentration. The plaintiffs also emphasized the dangers of children consuming lead. According to the plaintiffs, children absorb forty to fifty percent of an oral dose of lead compared with three to ten percent absorption for adults.

The defendants removed the case on May 31, 2016. They gave two reasons: first, that they acted under color of federal law, 28 U.S.C. § 1442, and second, that the plaintiffs’ negligence claims required construction of the Safe Drinking Water Act and the EPA’s Lead and Copper Rule; these federal questions, they said, justified removal under 28 U.S.C. § 1441.

On March 31, 2017, Judge Gordon J. Quist ruled that the defendants were not “acting under any federal officer or agency” when they took the actions that formed the basis of the plaintiffs’ claims, so they were not entitled to removal under 28 U.S.C. § 1442. In addition, Judge Quist concluded that the court did not have jurisdiction under 28 U.S.C. § 1441 because their negligence claims did not “implicate an important federal interest.” Accordingly, the case was remanded to Michigan Court of Claims.

On April 6, 2017, the defendants appealed this decision to the Sixth Circuit Court of Appeals, which affirmed the district court’s decision on April 16, 2018. Judge White described the relationship between the Michigan Department of Environmental Quality and the EPA as “cooperative federalism, not an agency relationship” and concluded that the defendants were not eligible for federal-officer removal. The Court of Appeals also determined that federal question jurisdiction did not exist, relying on Mays v. Flint, a similar case also arising from the Flint water crisis.

The defendants against appealed again, but the Supreme Court declined to hear the case on October 1, 2018.

The case returned to the Michigan Court of Claims. (In fact, litigation in the Court of Claims had already resumed because the federal district court declined to stay its order remanding the case while the federal appeals proceeded.)

The Court of Claims granted summary disposition in favor of some, but not all defendants in a series of orders beginning in 2017. Three governmental employees appealed, claiming governmental immunity. On March 14, 2019, the Michigan Court of Appeals determined that their liability depended on whether the defendants’ conduct was a proximate cause of the plaintiffs’ injury, which was not a suitable topic for summary disposition. 2019 WL 1211469. The defendants appealed to the Michigan Supreme Court, and the case is ongoing.

Olivia Vigiletti - 12/02/2019


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