Federal judge dismisses class action lawsuit over Flint

Jennifer Chambers
The Detroit News

A federal judge in Detroit has dismissed a class action lawsuit seeking $150 million in damages from the Flint water crisis, saying jurisdiction was improper, and suggested the plaintiffs refile their case in state court.

The decision could mean some of the other cases in federal court related to contaminated drinking water in Flint are at risk for dismissal, according to one legal expert.

U.S. District Judge John Corbett O’Meara issued his opinion Tuesday, saying claims made by Flint residents — specifically that Flint violated their constitutional rights and state law by providing contaminated water and requiring them to pay for it –– fall under the federal Safe Drinking Water Act.

Their allegation must be addressed by regulations by the Environmental Protection Agency as part of the federal act, O’Meara said.

“Here the crux of each Plaintiffs’ constitutional claims is that they have been deprived of ‘safe and potable water,’ ” O’Meara wrote in his opinion. “Plaintiffs’ allegations are addressed by regulations that have been promulgated by the EPA under SDWA.”

In the lawsuit, which was filed Jan. 31 by three Flint residents and one Flint business, the plaintiffs alleged they paid their water bills and were delivered “lead-poisoned” water from the Flint River.

The case, filed by Flint resident Beatrice Boler, sought compensation for all Flint residents who paid water bills between April 2014 and November 2015 and replacing the waterlines damages in every Flint home.

The city started drawing its drinking water from the Flint River in April 2014.

The complaint said Flint residents suffered damages because they continued to pay for water every month when the city supplied water that was unfit for use.

Flint Attorney Val Washington said the complaint would be filed in state circuit court or the Michigan Court of Claims after he meets with co-counsel.

“The dismissal is not a determination of the merits. It’s simply saying what you have pleaded, this court cannot hear because all these claims are precluded by federal Safe Water Drinking Act,” Washington said. “It’s another speed bump in the road of life.”

The federal act does not provide for damages in federal court, Washington said, but does allow the court to order injunctive relief

The $150 million figure in the lawsuit was based on 31,000 residents paying water bills while receiving water with elevated lead levels.

Robert Sedler, a constitutional law expert and law professor at Wayne State University, said O’Meara’s opinion could spell the end of other federal cases if the central claim in each of them is about unsafe drinking water.

“If this claim is solely about unsafe water then the federal water law gives them another remedy,” Sedler said.

Another judge could claims unsafe water is a secondary issue and allow the case to proceed in federal court, Sedler said.

Multiple federal lawsuits have been filed in U.S. District Court for the Eastern District of Michigan.

Among the first was a lawsuit filed on Nov. 13 by Melissa Mays and several other Flint residents against Gov. Rick Snyder, the city of Flint and other state and city officials involved in making the decision to use water from the corrosive Flint River, which caused high lead levels in the water municipal water system.

In that case, which seeks class action status, the plaintiffs allege federal constitutional and civil rights violation as well as substantive due process violations. They are asking for compensatory damages, punitive damages, as well as medical, educational, occupational, and nutritional support for Flint water users.

Attorney Michael Pitt said the case he filed on behalf of Mays and others was tailored to avoid the pre-emption issue in the case dismissed by O’Meara.

In the case handled by O’Meara, the claim centered on the economic harm caused to Flint water users who had to pay for water they couldn’t use, Pitt said.

“In our case, the focus is on the egregious government conduct which deprived our clients of their rights without due process. Our case is all about the unlawful deprivation of rights without due process,” Pitts said.

The manner in which the water was poisoned and rendered unusable is secondary to the due process claims in the Mays case, Pitt said.

“Different allegations will yield different results and therefore the Safe Drinking Water Act should not block our efforts to obtain relief for our clients,” Pitts said.