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The Sixth Circuit Court of Appeals will not reconsider a request from Flint city officials who claim they should be immune from litigation related to a Flint water crisis lawsuit.

Several judges in support of denying the request said it would be inappropriate for the full appellate court to weigh in at this juncture in the case before Flint residents have had time to gather evidence to prove their claims.

A three-member panel from the Sixth Circuit Court of Appeals ruled in January that Flint officials should not be dismissed from the case filed by Flint residents Shari Guertin and her child, Diogenes Muse-Cleveland, even though Republican former Gov. Rick Snyder and several state officials had been dismissed more than a year earlier.

Flint officials asked that the full Sixth Circuit Court of Appeals, not just the three-member panel, hear their arguments for dismissal, but the court denied the request Thursday in a decision that included concurrent and opposed opinions from judges on the court.  

The opinions concurring with the denial cited concerns about judicial overreach. Judges dissenting to the decision argued the panel had been too permissive in applying a vague Constitutional test to the Flint residents’ claims.

The case will return to the federal district court for continued discovery.

In June 2017, U.S. District Judge Judith E. Levy dismissed many of the counts charged in Guertin’s lawsuit, but Levy agreed the “bodily integrity" of Guertin and her child were violated when city residents were unknowingly exposed to dangerous levels of lead in the city’s drinking water, which officials were aware of but hid from the public.

At that time, Levy dismissed counts against Snyder, the state of Michigan and several state employees due to governmental immunity.

In January, the three-member Sixth Circuit Court of Appeals panel ruled the city of Flint, Flint’s emergency managers and some state environmental employees would not be dismissed from the suit.

Those employees asked to have their case considered by the full court but were denied a rehearing Thursday.

In concurring with the decision to deny a rehearing, U.S. Circuit Judge Julia Gibbons wrote claimants should have more time to better develop the facts supporting their claims, not cut short by a decision that would "prematurely attempt to determine which law would apply to those hypothetical facts.”

“That means that, so long as they have pled plausible allegations that would constitute a constitutional violation, they are entitled to discovery,” wrote Gibbons, an appointee of former President George W. Bush.

Currently, Flint claimants “plant the seeds” of two separate theories, U.S. Circuit Judge Jeffrey Sutton wrote in a second concurring opinion Thursday. One story is that local officials “bungled” their responsibilities and accidentally polluted the water; and a second story claims officials “intentionally poisoned Flint’s water supply.”

It’s too early to say which account is correct, wrote Sutton, a Bush appointee, but complainants should have time to better support their case in an effort to show officials both violated their constitutional rights and were on notice that they were doing so.

Sutton cautioned the Flint plaintiffs that “doubt clouds several aspects of the claims that remain in the case” and claimants will be held to a “rigorous standard” if they plan to pursue charges against Flint officials.

“Carefully tailored and prompt discovery should answer whether the intentional and reckless poisoning allegations hold up,” Sutton said. “If not, this case needs to return to the court of public opinion, where one suspects it should have remained all along.”

In his dissent, U.S. Circuit Judge Raymond Kethledge, a Bush appointee, wrote that, while he sympathizes with plaintiffs, the law "leads to a result contrary to the crush of popular opinion.”

Complainants' claim of a Constitutional violation of their substantive due process relies on the “vaguest of Constitutional doctrines” and to prove Flint officials aren’t entitled to qualified immunity Flint complainants must prove their “bodily integrity” was harmed intentionally, Kethledge wrote.

The panel’s January opinion, Kethledge wrote, expands “substantive due process to reach claims based on negligence rather than intent.”

"Our court’s opinion, 'in other words, does exactly what the Supreme Court has repeatedly told us not to do,'" he wrote. 

Gibbons was joined in her opinion by U.S. Circuit Judge Jane Branstetter Stranch, an appointee of former President Barack Obama; Sutton was joined by U.S. Circuit Judge John K. Bush, an appointee of President Donald Trump; and Kethledge was joined by U.S. Circuit judges Amul R. Thapar, Joan L. Larsen, and Eric E. Murphy, all Trump appointees, and John B. Nalbandian, an Obama appointee.

eleblanc@detroitnews.com

(517) 371-3661

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