Petition for Writ of Certiorari — Daniel Wyant, et al., Petitioners v. Melissa Mays, et al.

NO. ___________

IN THE

Supreme Court of the United States

DANIEL WYANT, ET AL., Petitioners,

v.

MELISSA MAYS, ET AL., Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

MICHAEL JOHN PATTWELL

JAY M. BERGER

CHRISTOPHER B. CLARE

CLARK HILL PLC

500 Woodward Ave.

Suite 3500

Detroit, MI 48226

(517) 318-3043

mpattwell@clarkhill.com

Counsel for Petitioners

Wyant & Wurfel

JOHN J. BURSCH

Counsel of Record

BURSCH LAW PLLC

9339 Cherry Valley

Avenue SE, #78

Caledonia, MI 49316

(616) 450-4235

jbursch@burschlaw.com

Counsel for Petitioners

Busch, Cook, Prysby,

Rosenthal, Shekter-Smith,

Wurfel & Wyant

(Additional counsel on inside cover)

CHARLES E. BARBIERI

ALLISON M. COLLINS

FOSTER, SWIFT, COLLINS

& SMITH

313 S. Washington Square

Lansing, MI 48933

(517) 371-8155

CBarbieri@fosterswift.com

Counsel for Petitioners

Rosenthal, Cook & Prysby

PHILIP A. GRASHOFF, JR.

DENNIS K. EGAN

KRISTA A. JACKSON

KOTZ SANGSTER WYSOCKI

36700 Woodward Ave.

Suite 300

Bloomfield Hills, MI 48304

(313) 965-8300

pgrashoff@kotzsangster.com

Counsel for Petitioner

Busch

THADDEUS E. MORGAN

FRASER TREBILCOCK

124 W. Allegan Street

Suite 1000

Lansing, MI 48933

(517) 377-0877

tmorgan@fraserlawfirm.com

Counsel for Petitioner

Shekter-Smith

i

QUESTIONS PRESENTED

1. Whether the Safe Drinking Water Act

precludes § 1983 claims based on alleged injuries

resulting from exposure to contaminated water.

2. Whether a federal-preclusion analysis depends

primarily on the existence of a comprehensive,

statutory remedial scheme, as this Court held in

Middlesex County Sewerage Authority v. National

Sea Clammers Ass’n, 453 U.S. 1 (1981), Smith v.

Robinson, 468 U.S. 992 (1984), and City of Rancho

Palos Verdes v. Abrams, 544 U.S. 113 (2005), or

instead on a comparison of the rights and remedies

available under the statutory scheme and those

available under § 1983, as the Court suggested in

dicta in Fitzgerald v. Barnstable School Committee,

555 U.S. 246 (2009).

2. Whether a different preclusion analysis

applies to a § 1983 claim based on a federal

constitutional provision versus a § 1983 claim based

on a federal statute.

ii

PARTIES TO THE PROCEEDING

Petitioners are Defendants Daniel Wyant,

Bradley Wurfel, Liane Shekter-Smith, Adam

Rosenthal, Patrick Cook, Michael Prysby, and

Stephen Busch.

Respondents are Plaintiffs Melissa Mays,

Michael Mays, Jacqueline Pemberton, Keith John

Pempberton, Elnora Carthan, and Rhonda Kelso.

Additional Defendants (but not Petitioners) are

Rick Snyder, the State of Michigan, Darnell Earley,

Gerald Ambrose, Dayne Walling, Howard Croft,

Michael Glasgow, Daugherty Johnson, the City of

Flint, Nick Lyon, Andy Dillon, Edward Kurtz, and

Jeff Wright.1

In the Court of Appeals, this case was

consolidated with Case No. 16-1684 (the “Boler

suit”). Plaintiffs in the Boler suit are Beatrice Boler,

Edwin Anderson, Allina Anderson, and Epco Sales,

LLC. Defendants in the Boler suit are Darnell

Earley, Gerald Ambrose, Dayne Walling, the City of

Flint, the State of Michigan, the Michigan

Department of Environmental Quality, the Michigan

Department of Health and Human Services, and

Richard Dale Snyder.

1 Defendant Jeff Wright has also filed a petition for certiorari

(No. 17-666).

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................ i

PARTIES TO THE PROCEEDING ........................... ii

PETITION APPENDIX TABLE OF CONTENTS ..... v

TABLE OF AUTHORITIES....................................... vi

OPINIONS BELOW .................................................... 1

JURISDICTION .......................................................... 1

STATUTE INVOLVED ............................................... 2

INTRODUCTION ........................................................ 4

STATEMENT .............................................................. 8

A. The comprehensive SDWA remedial

scheme ...................................................... 8

B. The litigation .......................................... 11

C. The district court’s decision ................... 12

D. The Sixth Circuit’s ruling ...................... 14

ARGUMENT ............................................................. 15

I.

The Court should grant the petition to

resolve a circuit conflict regarding the

SDWA’s preclusion of § 1983 claims

based on alleged injuries resulting from

exposure to contaminated water. ................. 18

II. The Court should grant the petition to

resolve the mature circuit conflict

regarding the proper test to apply when

conducting a federal-preclusion analysis. ... 23

iv

TABLE OF CONTENTS—Continued

III. The Court should grant the petition and

resolve the conflict regarding whether

the same federal-preclusion test applies

to § 1983 claims based on federal

constitutional rights as to those based on

federal statutory rights. ............................... 25

IV. The questions presented are recurring

and of national importance, and this case

is an ideal vehicle for resolving them. ......... 28

CONCLUSION .......................................................... 35

v

PETITION APPENDIX TABLE OF CONTENTS

United States Court of Appeals for the

Sixth Circuit,

Opinion in 16-1684 and 17-1144,

Issued July 28, 2017 .......................................... 1a–48a

United States District Court for the

Eastern District of Michigan,

Opinion and Order in 15-14002,

Issued February 2, 2017.................................. 49a–55a

United States District Court for the

Eastern District of Michigan,

Judgment in 15-14002,

Issued February 2, 2017.......................................... 56a

United States District Court for the

Eastern District of Michigan,

Order of Dismissal for Lack of Subject

Matter Jurisdiction in 16-10323,

Issued April 19, 2016 ...................................... 57a–63a

United States District Court for the

Eastern District of Michigan,

Judgment in 16-10323,

Issued April 19, 2016 .............................................. 64a

United States Court of Appeals for the

Sixth Circuit,

Order in 16-1684 and 17-1144

(consolidating cases),

Issued February 24, 2017................................ 65a–66a

United States Court of Appeals for the

Sixth Circuit,

Order in 16-1684 and 17-1144 (denying

petition for rehearing en banc),

Issued September 21, 2017 ............................. 67a–68a

vi

TABLE OF AUTHORITIES

Page(s)

Cases

Ahlmeyer v. Nevada Sys. of Higher Ed.,

555 F.3d 1051 (9th Cir. 2009) .................... 6, 25, 26

Bd. of Regents of Univ. of N.M. v. Migneault,

528 U.S. 1110 (2000) ..............................................6

Brown v. Gen. Servs. Admin.,

425 U.S. 820 (1976) .............................................. 19

City of Rancho Palos Verdes v. Abrams,

544 U.S. 113 (2005) ...................................... passim

Corby v. Pac. Gas & Elec. Co.,

2016 WL 4134511 (C.D. Cal. 2016) ................. 5, 19

Day v. Wayne Cty. Bd. of Auditors,

749 F.2d 1199 (6th Cir. 1984) .............................. 26

Fitzgerald v. Barnstable Sch. Comm.,

555 U.S. 246 (2009) ...................................... passim

Foli v. Metro. Water Dist. of S. Cal.,

2013 WL 11309339 (S.D. Cal. 2013).................... 20

Garcia v. Cecos Int’l,

761 F.2d 76 (1st Cir. 1985) .................................. 18

Gwaltney of Smithfield, Ltd. v.

Chesapeake Bay Foundation, Inc.,

484 U.S. 49 (1987) ................................................ 22

Hildebrand v. Allegheny Cty.,

757 F.3d 99 (3d Cir. 2014) ........................... passim

Lafleur v. Tex. Dep’t of Health,

126 F.3d 758 (5th Cir. 1997) ............................ 6, 25

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Levin v. Madigan,

692 F.3d 607 (2012)...................................... passim

Madigan v. Levin,

134 S. Ct. 2 (2013) ..................................................7

Madigan v. Levin,

568 U.S. 1228 (2013) ..............................................7

Mattoon v. Pittsfield,

980 F.2d 1 (1st Cir. 1992) ............................ passim

Middlesex Cnty. Sewerage Auth. v. Nat’l

Sea Clammers Ass’n,

453 U.S. 1 (1981) .......................................... passim

Migneault v. Peck,

158 F.3d 1131 (10th Cir. 1998) ........................ 6, 25

Smith v. Robinson,

468 U.S. 992 (1984) ...................................... passim

Stillwell v. City of Williams,

831 F.3d 1234 (9th Cir. 2016) .............................. 26

Thompson v. Sauk Vill.,

2013 U.S. Dist. LEXIS 28085 (N.D. Ill. 2013) .... 20

Toth v. City of Toledo,

480 Fed. App’x 827 (6th Cir. 2012) ...................... 26

Weberg v. Franks,

229 F.3d 514 (6th Cir. 2000) ................................ 26

Williams v. Wendler,

530 F.3d 584 (7th Cir. 2008) ................................ 27

Zombro v. Baltimore City Police Dep’t,

868 F.2d 1364 (4th Cir. 1989) .................... 6, 19, 25

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Statutes

28 U.S.C. § 1254 ..........................................................1

42 U.S.C. § 1983 .................................................... 2, 11

42 U.S.C. § 1985 ........................................................ 11

42 U.S.C. § 300f ...........................................................8

42 U.S.C. § 300g-1 .......................................................8

42 U.S.C. § 300g-2 .......................................................9

42 U.S.C. § 300g-3 ..................................................... 10

42 U.S.C. § 300i-1 ...................................................... 10

42 U.S.C. § 300j-7 ...................................................... 10

42 U.S.C. § 300j-8 ................................................ 10, 33

Michigan Safe Drinking Water Act, Act

399 of 1976 .............................................................9

Regulations

40 C.F.R. § 141.11 .......................................................8

40 C.F.R. § 141.110 .....................................................9

40 C.F.R. § 141.31 .......................................................8

40 C.F.R. § 141.60 .......................................................9

40 C.F.R. § 141.80 .......................................................9

40 C.F.R. § 142.10 .......................................................9

40 C.F.R. § 142.11 .......................................................9

40 C.F.R. § 142.17 .......................................................9

40 C.F.R. § 142.19 .......................................................9

ix

TABLE OF AUTHORITIES—Continued

Page(s)

Other Authorities

H.R. Report No. 93-1185 (1974) ..................................8

Pub. L. No. 93-266, 88 Stat. 1660 (1974) ....................8

1

OPINIONS BELOW

The opinion of the United States Court of

Appeals for the Sixth Circuit, App. 1a–48a, is

reported at 865 F.3d 391. The opinion of the United

States District Court for the Eastern District of

Michigan, App. 49a–55a, is not reported but is

available at 2017 WL 445637. The order of the Sixth

Circuit denying rehearing en banc, App. 67a–68a, is

not reported.

JURISDICTION

The judgment of the court of appeals was entered

on July 28, 2017. App. 1a. The court of appeals order

denying rehearing en banc was entered on September 21, 2017. App. 67a–68a. This Court has jurisdiction under 28 U.S.C. § 1254(1).

2

STATUTE INVOLVED

42 U.S.C. § 1983 states, in relevant part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of

any State or Territory or the District of

Columbia, subjects or causes to be subjected,

any citizen of the United States . . . to the

deprivation of any rights, privileges, or

immunities secured by the Constitution and

laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper

proceeding for redress, . . .

42 U.S.C. § 300g-3(b) of the Safe Drinking Water

Act states, in relevant part:

The [EPA] Administrator may bring a civil

action in the appropriate United States

district court to require compliance with any

applicable requirement, with an order issued

under subsection (g) of this section, or with

any schedule or other requirement . . . .

42 U.S.C. § 300g-3(g) of the Safe Drinking Water

Act states, in relevant part:

In any case in which the Administrator is

authorized to bring a civil action . . . with

respect to any applicable requirement, the

Administrator also may issue an order to

require compliance with such applicable

requirement.

3

42 U.S.C. § 300g-3(g)(3)(A) of the Safe Drinking

Water Act states, in relevant part:

Any person who violates, or fails or refuses to

comply with, an order under this subection

shall be liable to the United States for a civil

penalty of not more than $25,000 per day of

violation.

42 U.S.C. § 300j-8(a) of the Safe Drinking Water

Act states, in relevant part:

[A]ny person may commence a civil action on

his own behalf (1) against any person . . . who

is alleged to be in violation of any

requirement prescribed by or under this

subchapter; (2) against the Administration

where there is alleged a failure of the

Administrator to perform any act or duty

under this subchapter which is not

discretionary with the Administrator . . . .

4

INTRODUCTION

This case involves a mature circuit conflict over

the proper test to apply when determining whether a

federal statutory scheme precludes a § 1983 remedy.

Additionally, this case involves a direct circuit

conflict over whether the Safe Drinking Water Act

(SDWA) is a comprehensive, remedial statutory

scheme that preempts and precludes other federal

causes of action, including § 1983 claims.

The parties’ dispute arises out of the alleged

drinking water contamination in Flint, Michigan.

The gist of Plaintiffs-Respondents’ allegations is that

Petitioners and others “caused a public health crisis

by exposing Plaintiffs to contaminated water.” Am.

Compl. ¶ 1. Based on this Court’s preclusion test in

Middlesex County Sewerage Authority v. National

Sea Clammers Ass’n, 453 U.S. 1, 20 (1981), the

district court followed the First Circuit’s decision in

Mattoon v. Pittsfield, 980 F.2d 1 (1st Cir. 1992), and

held that the Safe Drinking Water Act (SDWA)

precludes other federal causes of action, including

Plaintiffs’ § 1983 claims here. App. 51a. As Mattoon

held, “Congress occupied the field of public drinking

water regulation with its enactment of the SDWA.”

980 F.2d at 4. The SDWA’s enforcement scheme is

“elaborate,” id. at 5–6, “closely analogous to other

enforcement schemes [this Court has] found sufficiently comprehensive to evince a clear congressional

intent to preempt relief under section 1983,” id. at 6.

In support, the district court cited this Court’s

preclusion decisions in Sea Clammers, 453 U.S. at 21

(§ 1983 claims precluded by Federal Water Pollution

and Control Act, and Marine Protection, Research,

and Sanctuaries Act); City of Rancho Palos Verdes v.

5

Abrams, 544 U.S. 113 (2005) (same for Telecommunications Act); and Smith v. Robinson, 468 U.S. 992

(1984) (same for Education of Handicapped Act).

App. 52a–53a. In each case, this Court divined a

congressional intent to preclude based on the

comprehensiveness of the statutory remedial scheme.

Sea Clammers, 453 U.S. at 20; Smith, 468 U.S. at

1010–11; Rancho Palos Verdes, 544 U.S. at 124.

The Sixth Circuit reversed. The panel correctly

recognized that the SDWA’s “remedial scheme

contains a number of similarities to the schemes in

the pollution statutes in Sea Clammers.” App. 23a.

But the panel held that the Act’s remedial schemes

were “not so comprehensive as to demonstrate

congressional intent to preclude remedies under

§ 1983 for constitutional violations.” App. 25a.

In so holding, the Sixth Circuit distinguished

Mattoon by stating that Plaintiffs asserted different

constitutional claims here than in Mattoon. App. 24a.

But all of Plaintiffs’ claims against Petitioners are

based on the same factual allegations underlying the

Mattoon claims: “exposing Plaintiffs to contaminated

water.” Am. Compl. ¶ 1. Mattoon and this case are

indistinguishable and in obvious conflict. See also

Corby v. Pac. Gas & Elec. Co., 2016 WL 4134511

(C.D. Cal. 2016) (following Mattoon and holding

plaintiffs § 1983 claims precluded by the SDWA).

“More importantly,” said the Sixth Circuit,

Mattoon predated this Court’s decision in Fitzgerald

v. Barnstable School Committee, 555 U.S. 246 (2009),

which, the Sixth Circuit believed, changed the preclusion analysis when the underlying § 1983 claim is

a federal constitutional claim as opposed to a federal

statutory claim. App. 16a, 20a. According to the

6

Sixth Circuit, this Court in Fitzgerald shifted from a

comprehensiveness test to a comparison-of-therights-and-remedies inquiry, requiring lower courts

facing a federal constitutional claim to determine

whether the remedies sought are mirrored in the

statutory scheme. App. 17a. That analysis was

dispositive. Although the SDWA “contains a number

of similarities to the schemes in the pollution

statutes [that this Court found preclusive] in Sea

Clammers,” App. 23a, the Sixth Circuit held that the

SDWA does not preclude a § 1983 claim because

Plaintiffs’ due-process claims “diverge significantly

from the rights and protections provided by the

SDWA.” App. 27a.

The Sixth Circuit’s adoption of the comparisonof-the-rights-and-remedies test perpetuated a much

broader circuit conflict over the proper preclusion

analysis. In the context of § 1983 claims of age

discrimination in employment based on a violation of

the Equal Protection Clause (a federal constitutional

claim), a majority of circuits—both before and after

Fitzgerald—has held such claims precluded by the

Age Discrimination in Employment Act because the

ADEA’s statutory scheme is comprehensive, and

allowing claims to be brought directly under § 1983

would severely undermine the ADEA’s enforcement

mechanisms. E.g., Hildebrand v. Allegheny Cty., 757

F.3d 99, 104–11 (3d Cir. 2014); Zombro v. Baltimore

City Police Dep’t, 868 F.2d 1364, 1366–69 (4th Cir.

1989); Lafleur v. Tex. Dep’t of Health, 126 F.3d 758,

759–60 (5th Cir. 1997); Ahlmeyer v. Nevada Sys. of

Higher Ed., 555 F.3d 1051, 1055–60 (9th Cir. 2009);

Migneault v. Peck, 158 F.3d 1131, 1140 (10th Cir.

1998), vacated on other grounds, Bd. of Regents of

Univ. of N.M. v. Migneault, 528 U.S. 1110 (2000).

7

Conversely, the Seventh Circuit has held that

the ADEA does not preclude a § 1983 equalprotection claim using the same comparison-of-therights-and-remedies analysis the Sixth Circuit

adopted here. See Levin v. Madigan, 692 F.3d 607,

622 (2012) (holding that ADEA and § 1983 claim

have divergent rights and remedies). That circuit

split resulted in this Court granting a petition in

Madigan to resolve the circuits’ conflicting preclusion tests, Madigan v. Levin, 568 U.S. 1228 (2013),

though the petition had to be dismissed as improvidently granted based on vehicle problems revealed at

oral argument. Madigan v. Levin, 134 S. Ct. 2 (2013).

These conflicting circuit tests for federal preclusion of § 1983 claims are not merely academic.

The split means that the ability of a plaintiff to

pursue a § 1983 claim in the face of a comprehensive

federal regulatory scheme depends entirely on the

circuit where a complaint is filed. Equally important,

allowing a plaintiff to enforce a § 1983 action in such

circumstances allows the plaintiff to circumvent

statutory notice, exhaustion, and other limits that

Congress has required in various federal statutory

schemes. And because comprehensive statutory

schemes nearly always include extra-constitutional

requirements and remedy limitations (including

damage limits), applying the comparison-of-therights-and-remedies test will almost never result in

the preclusion of a federal constitutional claim.

The Court should grant the petition, reject the

Sixth and Seventh Circuits’ approach to preclusion,

and reinstate the district court’s decision dismissing

the complaint.

8

STATEMENT

A. The comprehensive SDWA remedial

scheme

Congress passed the SDWA to establish comprehensive federal regulations governing drinking water

in the United States. 42 U.S.C. §§ 300f et seq. The

SDWA’s legislative history shows Congress intended

the Act to “(1) establish Federal standards for protection from all harmful contaminants, which standards

would be applicable to all public water systems, and

(2) establish a joint Federal-State system for

assuring compliance with these standards.” H.R.

Report No. 93-1185, at 1 (1974); accord Pub. L. No.

93-266, 88 Stat. 1660 (1974) (SDWA’s purpose is to

ensure “that the public is provided with safe

drinking water, and for other purposes”).

The SDWA tasks the Administrator of the U.S.

Environmental Protection Agency with establishing

national drinking water regulations for public water

systems, governing the amount of contaminants that

may be present in public drinking water. 42 U.S.C.

§ 300g-1. The EPA has promulgated comprehensive

SDWA regulations to govern safe drinking water,

addressing various microorganisms, disinfectants or

disinfection byproducts, inorganic chemicals (including lead), organic chemicals, and radionuclides.1 The

SDWA also prescribes treatment techniques,

monitoring and sampling requirements, and

mandates public reporting. 40 C.F.R. § 141.11

(regulating maximum contaminant levels); 40 C.F.R.

1 See https://goo.gl/DGAA9Z.

9

§ 141.31 et seq. (reporting and record keeping); 40

C.F.R. § 141.60 et seq. (maximum contaminant and

residual disinfectant levels); 40 C.F.R. § 141.80 et

seq. (control of lead and copper/corrosion control/lead

service line replacement requirements); 40 C.F.R.

§ 141.110 (regulating treatment techniques).

To accomplish this massive federal objective,2

the SDWA allows EPA to delegate enforcement and

administrative authority to state agencies, provided

the state agency demonstrates that it has: (i) adopted

drinking water regulations no less stringent than the

National Primary Drinking Water regulations promulgated by EPA; (ii) implemented adequate provisions for enforcing SDWA regulations, including such

monitoring and inspections required by EPA; and

(iii) developed a program to issue certain required

reports and keep relevant records. See 42 U.S.C.

§ 300g-2; 40 C.F.R. §§ 142.10–.11. EPA retains

control over state programs for monitoring and

enforcing drinking water quality, including lead-level

standards; can audit state drinking water programs

and issue orders directing specific actions, as necessary; and can withdraw a state’s primacy designation

to enforce the federal regulatory scheme. 40 C.F.R.

§§ 142.17(a)(2), 19. EPA granted Michigan primary

enforcement authority following the enactment of the

Michigan Safe Drinking Water Act, Act 399 of 1976

(Act 399). Under this delegation, Petitioners regulated, monitored, and enforced the federal SDWA

2 The systems regulated by the EPA and delegated states and

tribes provide drinking water to 90% of Americans. See

https://goo.gl/U4V4Pc.

10

and its Lead and Copper Rule in Flint, Michigan,

which serve as the basis of Plaintiffs’ claims.

The SDWA’s remedial scheme is comprehensive

and authorizes remedial actions by the government

and private citizens. The EPA Administrator, for

instance, can issue enforcement orders, assess civil

penalties, and file civil actions, including actions

against states that have been granted primary

enforcement authority and rescission of that

authority. 42 U.S.C. § 300g-3. Under the SDWA,

tampering with public water systems can result in

federal criminal penalties, including up to 20 years

in prison, as well as civil penalties assessed by the

EPA Administrator. 42 U.S.C. § 300i-1.

Additionally, the SDWA provides for private

causes of action (citizen suits). It authorizes “any

person” to “commence a civil action . . . against any

person . . . who is alleged to be in violation of any

requirement” or “against the [EPA] Administrator

where there is alleged a failure of the Administrator

to perform any act or duty” under the SDWA. 42

U.S.C. § 300j-8(a)(1)-(2). Such suits, however, can

only be brought 60 days after plaintiffs provide

notice of their intent to sue to the EPA Administrator, the alleged violator, and the State in which

the violation occurred. 42 U.S.C. § 300j-8(b)(1)(A).

Moreover, plaintiffs in these suits can only obtain

injunctive relief and attorney fees and costs, not

monetary damages. 42 U.S.C. § 300j-8(d). The public

may also challenge regulations promulgated by the

EPA Administrator. 42 U.S.C. § 300j-7. By design,

Congress intended the remedies for SDWA violations

to be comprehensive yet limited, both procedurally

and in terms of available relief.

11

B. The litigation

Plaintiffs initiated this lawsuit on November 13,

2015 in the district court. On May 25, 2016,

Plaintiffs filed their First Amended Complaint,

alleging claims against 20 different Defendants,

including Petitioners Stephen Busch, Patrick Cook,

Michael Prysby, Adam Rosenthal, Liane ShekterSmith, Bradley Wurfel, and Daniel Wyant, all

employees of the Michigan Department of Environmental Quality. The First Amended Complaint

contains six different counts. 1st Am. Compl.

¶¶ 131–211. The only claims brought against

Petitioners (and thus the only claims that will be

addressed in this petition) are two counts under 42

U.S.C. § 1983 for alleged constitutional violations of

Plaintiffs’ Fourteenth Amendment substantive dueprocess rights (state created danger and bodily

integrity). Id. ¶¶ 131–49. Petitioners are not included

in Plaintiffs’ other counts under 42 U.S.C. § 1983

(equal protection), 42 U.S.C. § 1985 (invidious racial

animus), or the Michigan Elliot Larsen Civil Rights

Act (violation of public service provisions). Id.

¶¶ 150–211.

Petitioners filed motions to dismiss, arguing that

the SDWA precludes Plaintiffs’ § 1983 state-createddanger and bodily-integrity claims under the

Fourteenth Amendment. Plaintiffs responded, arguing that their § 1983 claims against Petitioners were

not precluded, even though “the direct cause of

injury to Plaintiffs was contaminated water that

poisoned their bodies and destroyed their property.”

Omnibus Resp., R.157, PgID 2980. These pleadings

set the stage for the rulings below.

12

C. The district court’s decision

The district court concluded—consistent with

Plaintiffs’ complaint and Plaintiffs’ response to

Petitioners’ motion—that the “essence of Plaintiffs’

constitutional claims is that Plaintiffs were injured

as a result of exposure to contaminated water.” App.

53a. Accordingly, the district court held Plaintiffs’

claims against Petitioners were precluded by the

SDWA for the same reasons the district court

articulated in a nearly identical case involving Flint

water contamination. App. 50a (citing Boler v.

Earley, No. 16-10323, App. 57a–63a).

The district court began with the preclusion test

this Court articulated in Sea Clammers: whether the

federal statutory scheme is “sufficiently comprehensive” to “demonstrate congressional intent to

preclude the remedy of suits under § 1983.” App. 50a

(quoting Sea Clammers, 453 U.S. at 20). The court

noted that the First Circuit in Mattoon had faced an

identical situation, where a group of plaintiffs had

brought a § 1983 action based on allegations of a

contaminated water supply. The First Circuit

described the SDWA’s “elaborate enforcement

scheme,” including the authorization of civil suits by

the EPA Administrator and citizens, and concluded

that the plaintiffs’ § 1983 claim was precluded by the

SDWA. App. 52a (quoting Mattoon, 980 F.2d at 5–6).

“Comprehensive federal statutory schemes, such as

the SDWA, preclude rights of action under section

1983 . . . in the field occupied by the federal statutory

scheme.” App. 52a. (quoting Mattoon, 980 F.2d at 6).

The district court cited Sea Clammers, Smith, and

Rancho Palos Verdes in support of its application of

the comprehensive-scheme test. App. 52a.

13

Turning to the facts here, the district court noted

that “Plaintiffs’ allegations are addressed by

regulations that have been promulgated by the EPA

under the SDWA. App. 53a (citations omitted).

“Indeed, the safety of public water systems is a field

occupied by the SDWA.” App. 53a (citing Mattoon,

980 F.2d at 4). So “Plaintiffs’ federal remedy is under

the SDWA, regardless of how their legal theories are

characterized in the complaint.” App. 53a.

In so holding, the district court rejected Plaintiffs’ reliance on Fitzgerald, the opinion of this Court

on which the Sixth Circuit would later rely. App.

53a–54a. Fitzgerald involved a preclusion analysis of

Title IX, which, “unlike the statutes at issue in Sea

Clammers, Smith, and Rancho Palos Verdes,” “did

not provide a carefully tailored private enforcement

mechanism.” App. 53a–54a. Rather, the district court

concluded that, like the statutes in Sea Clammers,

Smith, and Rancho Palos Verdes, “[a]llowing parallel

§ 1983 claims to proceed would ‘circumvent’ the

SDWA procedures and would be ‘inconsistent with

Congress’ carefully tailored scheme.’” App. 54a

(quoting Fitzgerald, 555 U.S. at 254–55).

The district court observed that courts must

always be mindful not to “lightly conclude that

Congress intended to preclude reliance on § 1983 as

a remedy for a substantial equal protection claim.”

App. 54a (quoting Smith, 468 U.S. at 1012). But the

SDWA’s elaborate enforcement scheme led the court

to hold “that § 1983 claims seeking to remedy unsafe

drinking water would be ‘inconsistent with Congress’

carefully tailored scheme.’” App. 54a (quoting Smith,

468 U.S. at 1012, and citing Hildebrand v. Allegheny

Cty., 757 F.3d 99 (3d Cir. 2014)).

14

D. The Sixth Circuit’s ruling

This case and the Boler case were consolidated in

the Sixth Circuit, which rejected the district court’s

preclusion holding and the First Circuit’s decision in

Mattoon. The Sixth Circuit interpreted this Court’s

decision in Fitzgerald as modifying the preclusion

analysis when the underlying claim is based on a

constitutional violation rather than a federal

statutory violation. App. 16a, 20a. The Sixth Circuit

thought that the comprehensiveness test applied

only when examining a statutory claim. For a

constitutional claim, the Sixth Circuit held that the

applicable test is whether the statute’s “substantive

protections diverge[ ] from those provided by the”

constitutional provision, based on an examination of

the statutory language and legislative history, the

comprehensive nature of the remedial scheme, and

whether the constitutional claims are “virtually

identical to” the available statutory claims. App.

17a–18a (quoting Smith, 468 U.S. at 1009–12)

(emphasis added).

Given that test, it was easy for the Sixth Circuit

to reject the First Circuit’s decision in Mattoon. First,

there was no express language in the SDWA’s text or

legislative history indicating a preclusive intent.

App. 21a. Second, while recognizing that the SDWA’s

“remedial scheme contains a number of similarities

to the schemes in the pollution statutes in Sea

Clammers,” App. 23a, and that Sea Clammers

rejected the presence of a savings clause as an

indicator of congressional intent not to preclude,

App. 23a, the Sixth Circuit held that the SDWA’s

savings clause actually supports a conclusion that

Congress intended to allow § 1983 claims. App. 24a.

15

Most crucially, the Sixth Circuit rejected

Mattoon because the “SDWA’s remedies are more

limited than those generally available under § 1983,

as the statute provides for injunctive relief only, not

for recovery of damages or other monetary relief

available to Plaintiffs with successful § 1983 claims.”

App. 24a (emphasis added). Despite “some overlap in

coverage,” “the substantive standards within the”

SDWA “diverge significantly from the protections

afforded by the Constitution.” App. 27a. But on this

point, the Sixth Circuit focused primarily on the

Equal Protection claims brought against other

Defendants, App. 27a–28a. With respect to the Due

Process claims against Petitioners, the Sixth Circuit

merely observed the differing burden of proof

compared to an SDWA claim. App. 28a–29a. In sum,

the Sixth Circuit concluded that “the SDWA does not

preclude § 1983 claims as pled by the Boler and Mays

Plaintiffs.” App. 31a.

ARGUMENT

In Fitzgerald, this Court reaffirmed its commitment to examining “the nature and extent of [a]

statute’s remedial scheme” to determine whether the

statutory scheme precludes the enforcement of a

federal right under § 1983. 555 U.S. at 253. The

problem is that Fitzgerald appears to give lower

courts differing directives as to how the statutory

remedial scheme should be analyzed.

On one hand, the Fitzgerald opinion re-examined

this Court’s preclusion decisions in Sea Clammers,

Smith, and Rancho Palos Verdes and observed that

in “all three cases, the statutes at issue required

plaintiffs to comply with particular procedures

16

and/or to exhaust particular administrative remedies

prior to filing suit.” Id. at 254. “Offering plaintiffs a

direct route to court via § 1983 would have circumvented these procedures and given plaintiffs access

to tangible benefits—such as damages, attorney’s

fees, and costs—that were unavailable under the

statutes.” Id. “Allowing a plaintiff to circumvent the

statutes’ provisions in this way would have been

‘inconsistent with Congress’ carefully tailored

scheme.’” Id. (quoting Smith, 468 U.S. at 1012).

Thus, when “the remedial devices provided in a

particular Act are sufficiently comprehensive, they

may suffice to demonstrate congressional intent to

preclude the remedy of suits under § 1983.” Id. at

253 (quoting Sea Clammers, 453 U.S. at 20). As for

Title IX, its very limited “remedies—withdrawal of

federal funds and an implied cause of action—stand

in stark contrast to the ‘unusually elaborate,’ ‘carefully tailored,’ and ‘restrictive’ enforcement schemes

of the statutes at issue in Sea Clammers, Smith, and

Rancho Palos Verdes.” Id. at 255. And “parallel and

concurrent § 1983 claims will neither circumvent

required procedures, nor allow access to new

remedies.” Id. at 255–56.

On the other hand, the Fitzgerald opinion

suggests in dicta that a preclusion analysis differs

depending on whether the § 1983 claim is based on a

statutory or constitutional right: “In those cases in

which the § 1983 claim is based on a statutory right,

‘evidence of . . . congressional intent [to preclude]

may be found directly in the statute creating the

right, or inferred from the statute’s creation of a

comprehensive enforcement scheme that is incompatible with individual enforcement under § 1983.”

Id. at 252 (quoting Rancho Palos Verdes, 544 U.S. at

17

120). But in “cases in which the § 1983 claim alleges

a constitutional violation, lack of congressional

intent may be inferred from a comparison of the

rights and protections of the statute and those

existing under the Constitution. Where the contours

of such rights and protections diverge in significant

ways, it is not likely that Congress intended to

displace § 1983 suits enforcing constitutional rights.”

Id. at 253–54 (emphasis added).

These differing tests have sown confusion among

the lower courts. The Sixth Circuit here and the

Seventh Circuit in Madigan applied the comparisonof-the-rights-and-remedies test to determine that the

SDWA and the ADEA, respectively, did not preclude

§ 1983 claims for federal constitutional violations

based on allegations that fall squarely within the

field occupied by—and stated a claim for violation

of—the federal statutory schemes.

Other circuits, including the First Circuit in

Mattoon and the Third Circuit in Hildebrand, have

applied the comprehensiveness test and examined

the comprehensiveness of the statutory scheme,

considering whether a § 1983 claim would

circumvent required procedures prescribed by the

regulatory framework. Those courts determined that

the SDWA and the ADEA, respectively, did preclude

§ 1983 claims for federal constitutional violations

that were based on the same underlying allegations

as a claim under the Acts. This Court’s immediate

intervention is warranted to resolve these and other

conflicting decisions.

18

I.

The Court should grant the petition to

resolve a circuit conflict regarding the

SDWA’s preclusion of § 1983 claims based

on alleged injuries resulting from exposure

to contaminated water.

The first question presented frames the narrower

circuit split: whether the SDWA precludes § 1983

claims based on alleged injuries resulting from

exposure to contaminated water. The First Circuit in

Mattoon answered yes, and the district court followed that ruling. The Sixth Circuit here answered

no and reversed.

In Mattoon, Massachusetts residents who

contracted “beaver fever” (giardiasis) from drinking

contaminated water sued their city and various

contractors and consultants asserting a violation of

the SDWA, a public-nuisance claim under federal

common law, and a § 1983 claim based on the SDWA

and a constitutional right to safe drinking water. The

First Circuit concluded that the SDWA precluded

both the public-nuisance and § 1983 claims. 980 F.2d

at 3–7.

With respect to the § 1983 claim, the First

Circuit applied Sea Clammers and analyzed the comprehensiveness of the SDWA’s remedial scheme. Id.

at 5. “Like the statutes at issue in Sea Clammers and

Garcia [v. Cecos Int’l, 761 F.2d 76, 82–83 (1st Cir.

1985) (which held that the Resource Conservation

and Recovery Act, or RCRA, precludes § 1983

actions)], the SDWA establishes an elaborate

enforcement scheme which confers rights of action on

both the government and private citizens.” Id.

Among other things, the EPA “Administrator may

bring a civil action to compel SDWA compliance and

19

may issue compliance orders against violators of the

SDWA regulations,” and may claim a civil penalty

“amounting to as much as $25,000 per day.” Id.

(citations omitted). Moreover, “citizens may initiate

enforcement proceedings against SDWA violations

and against the Administrator.” Id. “As the SDWA

enforcement scheme is closely analogous to other

enforcement schemes found sufficiently comprehensive to evince a clear congressional intent to preempt

relief under section 1983, . . . [the residents]’ section

1983 claims are preempted by the SDWA.” Id. at 6

(citing Sea Clammers and Garcia).

The First Circuit said that this conclusion

applied even to the citizens’ § 1983 claim based on

federal constitutional rights. Id. (citing Smith, 468

U.S. 992 (“Education of the Handicapped Act provides exclusive remedy even where plaintiffs assert

constitutional claims”); Brown v. Gen. Servs. Admin.,

425 U.S. 820, 824–25 (1976) (“§ 717 of the civil

Rights Act of 1964 . . . provides exclusive remedy for

challenging racial discrimination in federal employment even though alleged discrimination ‘clearly

violated . . . the Constitution’”); Zombro v. Baltimore

City Police Dep’t, 868 F.2d 1364 (4th Cir. 1989)

(ADEA precludes § 1983 claim based on the Equal

Protection Clause)). Dozens of federal court

decisions—after this Court issued the Fitzgerald

opinion—have followed Mattoon’s reasoning and

holding. E.g., Corby v. Pac. Gas & Elec. Co., 2016 WL

4134511, *3–4 (C.D. Cal. 2016) (relying on Mattoon

and holding plaintiffs’ § 1983 claim precluded by

SDWA, even where complaint made no mention of

SDWA, because underlying claim involved poisoned

water and SDWA’s express, private means of redress

evinces congressional intent to preclude other causes

20

of action); Foli v. Metro. Water Dist. of S. Cal., 2013

WL 11309339, at *2–4 (S.D. Cal. 2013) (following

Mattoon and holding plaintiffs’ § 1983 claims based

on federal due-process and equal-protection protections precluded by SDWA); Thompson v. Sauk Vill.,

2013 U.S. Dist. LEXIS 28085 (N.D. Ill. 2013) (§ 1983

claim premised on contamination of public drinking

water is preempted by the SDWA).

In the present case, the Sixth Circuit purported

to distinguish Mattoon because, rather than

explicitly allege a constitutional right to safe

drinking water, Plaintiffs couched their right to safe

drinking water in terms of Due Process violations.

App 24a. (Plaintiffs also alleged a violation of the

Contract and Equal Protection Clauses against other

Defendants, though those counts were not asserted

against Petitioners). The Sixth Circuit provided no

rationale or citations to authority explaining why the

preclusion analysis should differ just because a

plaintiff places a different label on a claim arising

from alleged injury from contaminated water.

More important, the Sixth Circuit disavowed

Mattoon because it predated Fitzgerald and did not

apply what the Sixth Circuit believed was a new

preclusion test for § 1983 claims based on a

constitutional violation: “compar[ing] the rights and

protections of the statute with those found in the

Constitution.” App. 24a. That criticism ignores that

other federal courts have followed Mattoon postFitzgerald, and it is a facile view of Fitzgerald itself.

Under the Sixth Circuit’s test, a federal statutory

scheme will almost never preclude any § 1983 claim

based on a federal constitutional right absent explicit

language in the statute regarding preclusion. The

21

kind of elaborate, remedial scheme necessary to

discern a congressional intent to preclude will

necessarily include limits—requiring a plaintiff to

exhaust administrative remedies, to follow particular

procedures, and to claim only certain remedies. A

§ 1983 claim based on a federal constitutional right

will rarely, if ever, have such limits. Here, for

example, the Substantive Due Process Clause of the

Fourteenth Amendment does not require administrative exhaustion, does not require any particular

procedure, and does not contain restrictions on

remedies. Yet, under the Sixth Circuit’s misreading

of Fitzgerald, the most thorough and intentionally

reticulated statutory scheme could never preclude a

§ 1983 action invoking the Substantive Due Process

clause, allowing any plaintiff to circumvent the

limitations and measures Congress intended.

This very case demonstrates that reality. The

Sixth Circuit acknowledged that the SDWA’s

remedial scheme “contains a number of similarities

to the schemes in the pollution statutes in Sea

Clammers.” App. 23a. That should have been

dispositive. Yet the Sixth Circuit held there was no

preclusion because the “SDWA’s remedies are more

limited than those generally available under § 1983,

as the statute provides for injunctive relief only, not

for recovery of damages or other monetary relief

available to Plaintiffs with successful § 1983 claims.”

App. 24a. That will be true in virtually every case.

Moreover, the Sixth Circuit’s decision will allow

constitutional claims based on past violations of the

SDWA, which the Act itself does not allow. Like the

Clean Water Act before its 1990 amendments, the

SDWA only allows suits for present or ongoing

22

SDWA violations: “the harm sought to be addressed

by the citizen suit lies in the present or the future,

not in the past.” Gwaltney of Smithfield, Ltd. v.

Chesapeake Bay Foundation, Inc., 484 U.S. 49, 59

(1987). The Sixth Circuit’s preclusion test will allow

a plaintiff to circumvent this intentionally narrow

remedial scheme and render such limitations

meaningless.

Nothing in Fitzgerald suggests this Court

intended such a draconian circumscribing of federal

preclusion involving § 1983 actions based on federal

constitutional claims. To the contrary, the Fitzgerald

opinion emphasizes that in Sea Clammers, Smith,

and Rancho Palos Verdes, the Court found preclusion

because a § 1983 claim would have “given plaintiffs

access to tangible benefits—such as damages, attorney’s fees, and costs—that were unavailable under

the statutes.” 555 U.S. at 254 & n.1. Title IX was

different, the Court said, because the statutory

remedies—“withdrawal of federal funds and an

implied cause of action”—stand “in stark contrast to

the ‘unusually elaborate,’ ‘carefully tailored,’ and

‘restrictive’ enforcement schemes of the statutes at

issue in Sea Clammers, Smith, and Rancho Palos

Verdes.” Id. at 255. Like the First Circuit in Mattoon,

once the Sixth Circuit correctly concluded that the

SDWA’s remedial scheme was similar to the statutory scheme in Sea Clammers, it should have held

that the SDWA precluded § 1983 claims. Any other

result will undermine the SDWA and the remedial

scheme Congress intentionally created.

23

II. The Court should grant the petition to

resolve

the

mature

circuit

conflict

regarding the proper test to apply when

conducting a federal-preclusion analysis.

The second question presented frames the

broader circuit split: whether lower courts performing a preclusion analysis should follow the comprehensive-remedial-scheme test this Court articulated

in Sea Clammers and applied in Smith, Rancho

Palos Verdes, and Fitzgerald, or the comparison-ofthe-rights-and-remedies test that has been adopted

by a minority of circuits from dicta in Fitzgerald. The

split among the circuits on the proper test is most

stark in the context of ADEA claims, with the Third,

Fourth, Fifth, Ninth, and Tenth Circuits using the

comprehensive-remedial-scheme test, and the

Seventh Circuit applying the comparison-of-therights-and-remedies test.

In Madigan, the Seventh Circuit similarly interpreted Fitzgerald as setting a more rigorous bar for

preclusion when a § 1983 claim alleges a constitutional violation compared to a § 1983 statutory

claim, just like the Sixth Circuit in this case. 692

F.3d at 618. The Seventh Circuit compared the

rights and protections offered by the ADEA and the

Equal Protection Clause and, unsurprisingly, found

the ADEA provided more restrictive protections. Id.

at 621. Specifically, the ADEA allows a plaintiff to

sue only an employer, employment agency, or labor

organization; limits claims by certain individuals,

such as elected officials; and does not allow stateemployee suits because of Eleventh Amendment

immunity. Conversely, a § 1983 Equal Protection

Claim allows a plaintiff to sue any individual who

24

caused or participated in the deprivation of

constitutional rights, does not contain the electedofficial exemption, and does not preclude stateemployee suits. Id. Based on this divergence of

protections, the Seventh Circuit held that the ADEA

did not precludes a § 1983 Equal Protection claim,

even if the plaintiff’s factual allegations fall squarely

within the statutory parameters of the ADEA.

The Third Circuit in Hildebrand rejected the

Seventh Circuit’s approach while considering a

similar age-discrimination lawsuit that included a

§ 1983 claim based on the Equal Protection Clause.

In so doing, the Hildebrand court also rejected the

Sixth Circuit’s interpretation of Fitzgerald in the

present case. As the Third Circuit explained, “[t]o be

sure, Fitzgerald’s analysis of the different

substantive protections afforded by Title IX and the

Equal Protection Clause provides an additional

framework for determining whether a section 1983

action is foreclosed. Nevertheless, we do not believe it

disturbed the basic principle that, absent indications

to the contrary, we may infer that Congress intended

to preclude § 1983 claims when it provides a

sufficiently comprehensive remedial scheme for the

vindication of a federal constitutional right.” 757

F.3d at 108–09 (emphasis added). Otherwise, the

ADEA would be undermined.

Having rejected the comparison-of-the-rightsand-remedies test as the primary barometer of

preclusive intent, the Third Circuit in Hildebrand

said “there can be no debate that the ADEA provides

a comprehensive remedial scheme.” Id. at 109. As a

result, the Court did not “believe that the rights and

protections of the ADEA and the Equal Protection

25

Clause differ in such significant ways as to

demonstrate congressional intent to allow parallel

§ 1983 claims alleging age discrimination.” Id.

Accordingly, the Third Circuit held that the ADEA

precluded the plaintiff’s § 1983 claim. Id. at 110. The

Fourth, Fifth, Ninth, and Tenth Circuits have

followed the same analysis to reach the same

conclusion. Zombro, 868 F.2d at 1366–69; Lafleur,

126 F.3d at 759–60; Ahlmeyer, 555 F.3d at 1055–60;

Migneault, 158 F.3d at 1140.

As noted above, this Court granted the petition

in Madigan to resolve the circuits’ differing

approaches to federal preclusion. But the petition

was ultimately dismissed after oral argument

revealed a vehicle problem that is not present here.

(the Seventh Circuit lacked jurisdiction to hear an

interlocutory appeal). The petition should be granted

here to address and resolve this conflict, both in the

broader context of the proper test to apply in

determining whether a federal statutory scheme

precludes resort to parallel § 1983 constitutional

claims, and in the narrower context of the SDWA.

III. The Court should grant the petition and

resolve the conflict regarding whether the

same federal-preclusion test applies to

§ 1983 claims based on federal constitutional rights as to those based on federal

statutory rights.

The third question presented—whether the

preclusion analysis differs for a § 1983 claim that is

constitutional-based rather than statutory-based—is

implicit in each of the first two questions presented

and settled law in the Sixth Circuit. For example, in

addition to the decision here, the Sixth Circuit has

26

previously held that Title VII precludes § 1983

statutory-based claims, Day v. Wayne Cty. Bd. of

Auditors, 749 F.2d 1199, 1204 (6th Cir. 1984), while

also holding that Title VII does not preclude

constitutional discrimination-based § 1983 claims,

see, e.g., Toth v. City of Toledo, 480 Fed. App’x 827,

831 (6th Cir. 2012) (citing Weberg v. Franks, 229

F.3d 514, 522 (6th Cir. 2000).

The same question is also framed by additional

circuit decisions. For example, the Ninth Circuit

recently considered the question whether the ADEA

precludes § 1983 age-discrimination retaliation

claims. Stillwell v. City of Williams, 831 F.3d 1234

(9th Cir. 2016). Following the Seventh Circuit’s

decision in Madigan, the panel majority said no,

even though the Ninth Circuit had previously held

that the ADEA precludes § 1983 age-discrimination

claims. “If we were evaluating the preclusion of

§ 1983 suits as a mechanism to enforce a statutory

right created by the ADEA,” said the majority, “the

detailed nature of its remedial scheme might be

dispositive. But, under Fitzgerald, it is not.

Fitzgerald instructed” lower courts to compare

“‘rights and protections’ offered by the Constitution

and the statute in question.” Id. at 1245.

The Stillwell dissent, pointing to Ahlmeyer, did

not believe the ADEA precluded § 1983 claims

asserting age discrimination but did not preclude

§ 1983 claims alleging retaliation. Id. at 1253

(Fernandez, J., dissenting). Citing Sea Clammers

and Fitzgerald, the dissent did not compare rights

and remedies but instead relied on the overall

scheme evidencing congressional intent to preclude

and was not persuaded the Congress had two

27

differing purposes when enacting the ADEA: one

intent relating to individuals being discriminated

against, and a separate, different intent relating to

individuals who opposed age discrimination by

others. Id. at 1252–53.

There is no principled reason preclusion outcomes should differ simply because the asserted

right underlying a § 1983 claim flows from a

statutory provision rather than a constitutional

provision. As the Seventh Circuit recognized preFitzgerald, when “Congress enacts a comprehensive

scheme for enforcing a statutory right that is identical to a right enforceable under 42 U.S.C. § 1983,

which creates a civil remedy for violations of federal

rights (including constitutional rights) under color of

state law, the section 1983 lawsuit must be litigated

in accordance with the scheme.” Williams v. Wendler,

530 F.3d 584, 586 (7th Cir. 2008) (relying on Sea

Clammers). If a plaintiff with an ADEA claim cannot

expand her remedies by asserting a § 1983 claim

based on an ADEA violation, she should not be

allowed to do so by asserting the same § 1983 claim

based on a violation of the Equal Protection Clause.

Either result undermines the statutory scheme, as

the Third Circuit recognized in Hildebrand. 757 F.3d

at 109 (applying the same comprehensiveness test

that circuits typically applied to statutory-based

§ 1983 claims pre-Fitzgerald).

28

IV. The questions presented are recurring and

of national importance, and this case is an

ideal vehicle for resolving them.

As explained above, the numerous conflicting

circuit decisions analyzing federal preclusion of

§ 1983 claims by comprehensive, remedial, federal

statutory schemes are recurring and creating

unnecessary district- and circuit-court litigation. The

Court should grant the petition and resolve those

conflicts now.

First, the circuit splits are deep and mature, with

the Sixth and Seventh Circuits applying the

comparison-of-the-rights-and-remedies

test,

the

Third, Fourth, Fifth, and Tenth Circuits applying the

comprehensive remedies test, and the Ninth Circuit

applying both tests. There is little chance that

subsequent circuit decisions or en banc proceedings

will resolve these conflicts, or even provide helpful

additional analysis. The Sixth Circuit in this very

case could have followed the First Circuit’s decision

in Mattoon, which addressed the same statutory

scheme, and the Third Circuit’s decision in

Hildebrand that analyzed preclusion in the broader

context, but instead built on the minority position

the Seventh Circuit articulated in Madigan.

Second, further delay in resolving the conflicts

harms parties and the justice system. If the Sixth

Circuit is correct here, then plaintiffs asserting

§ 1983 claims based on federal constitutional rights

are being wrongfully deprived of the ability to pursue

their claims in numerous other circuits. other hand,

if the Third Circuit is correct in Hildebrand, then

defendants (like Petitioners) are being wrongfully

subjected to § 1983 claims when Congress intended

29

the more limited remedies of a statutory scheme to

be the only remedies available. Either way, the

circuits splits are producing widely divergent results

for similarly situated parties.

Third, the issues presented are of sufficient legal

and public importance that they should be resolved

immediately, notwithstanding that this dispute is in

an interlocutory posture. The purpose of the federalpreclusion doctrine is to prevent defendants from

having to litigate § 1983 claims which Congress

intended to displace through the enactment of a comprehensive remedial scheme. If forced to litigate to

judgment, Petitioners will have been deprived of the

very protection Congress intended. Presumably that

is why this Court granted the petition in Madigan,

which was also interlocutory. So too in Sea

Clammers and Rancho Palos Verdes, where the

Third and Ninth Circuits, respectively, had

remanded for further proceedings prior to this

Court’s grant of a petition. Interlocutory review is

warranted for the same reason here. In this litigation

alone, stemming from the alleged contamination of

Flint’s water system, resolving the circuit split is the

difference between litigating thousands of § 1983

claims and none.

Fourth, this case is an ideal vehicle to resolve the

questions presented because they are outcome dispositive. The Sixth Circuit ruled in favor of Plaintiffs

based on its comparison-of-the-rights-and-remedies

test. Under the comprehensive-remedial-scheme test,

Petitioners would have prevailed because, in the

Sixth Circuit’s words, the SDWA “remedial scheme

contains a number of similarities to the schemes in

the pollution statutes in Sea Clammers.” App. 23a.

30

As the district court explained, “Plaintiffs’ allegations are addressed by regulations that have been

promulgated by the EPA under the SDWA. App. 53a

(numerous citations omitted). “Indeed, the safety of

public water systems is a field occupied by the

SDWA.” App. 53a (citing Mattoon, 980 F.2d at 4).

Accordingly, “Plaintiffs’ federal remedy is under the

SDWA, regardless of how their legal theories are

characterized.” App. 53a.

That Plaintiffs have alleged an SDWA action in

§ 1983 clothing is self-evident from the Complaint.

Plaintiffs allege that:

•

“Defendants . . . expos[ed] Plaintiffs to

contaminated water.” 1st Am. Compl.

¶ 1.

•

“Plaintiff representatives . . . were

exposed and continue to be exposed to

highly dangerous conditions created” by

“use [of] the toxic Flint River as a

primary drinking source.” Id. ¶ 8.

•

Plaintiffs “regularly used the water for

drinking, cooking, washing, bathing and

clothes washing. . . .” Id. ¶¶ 13, 16, 19,

23.

•

“[T]he State created a dangerous public

health crisis for the users of Flint tap

water when it and Kurtz and Earley

ordered and set in motion the use of

highly corrosive and toxic Flint River

water knowing that the WTP was not

ready.” Id. ¶ 69.

31

•

“[C]itizen complaints about contaminated

water continued without the State doing

anything to address these complaints”

and that “[m]any Flint water users

reported that the water was making

them ill.” Id. ¶ 72.

•

There was a “threat of Legionnaires

disease resulting from the use of Flint

River water.” Id. ¶ 77.

•

There was an “ongoing threat to public

health posed by the Legionella bacteria

in the Flint River Water.” Id. ¶ 79.

•

A “public health crisis was caused by the

corrosion of the entire infrastructure of

the Flint water system” and that “[n]o

action was taken to . . . correct the harm

caused by the State’s decision to switch

from DWSD water to Flint River water.”

Id. ¶ 83.

•

“Given the months of complaints from

Flint water users that the water was . . .

making them visibly sick, the Governor

knew that there was an imminent threat

to the people of Flint.” Id. ¶ 87.

•

“[I]ron contamination was so high that

the testing instrumentation could not

measure it.” Id. ¶ 90.

•

The City of Flint was not “using corrosion

control.” Id. ¶ 92.

32

•

“[O]fficials in the Governor’s office

realized that they had a massive public

health

emergency

which

probably

included widespread lead poisoning . . . .”

Id. ¶ 93.

•

There was a “public health emergency

involv[ing]

lead

poisoning,

deadly

Legionella bacteria and a host of other

ailments.” Id. ¶ 95.

•

Plaintiffs seek to certify a class of “all

individuals and entities who from April

25, 2014 to present were exposed to toxic

Flint water.” Id. ¶¶ 122–23.

•

There were “dangers and risks of harm to

Plaintiffs from the ongoing exposure to

the water toxins.” Id. ¶ 138.

•

And “Defendants deliberately and knowingly breached the constitutionally protected bodily integrity of Plaintiffs by

creating and perpetuating the ongoing

exposure to contaminated water. . . .” Id.

¶ 146.

Based on these allegations, there are no relevant

scenarios where Plaintiffs’ § 1983 due-process claims

against Petitioners (state created danger and bodily

integrity) could be pursued without an SDWA

violation. Plaintiffs’ § 1983 claims against Petitioners

and the citizen suit they could have filed under the

SDWA require a virtually identical foundation—a

violation of the regulations promulgated under the

SDWA—which is easily distinguished from any other

type of constitutional § 1983 claims. Plaintiffs’ claims

are seeking to recover damages for Petitioners’ roles

33

in allegedly providing Plaintiffs with contaminated

drinking water that was not safe—with the concept

of “safe” water necessarily created and defined by the

SDWA—and failing to remedy the situation.

In sum, Plaintiffs’ claims against Petitioners,

regardless of how they are framed, are based on

Plaintiffs’ alleged “expos[ure] to contaminated water”

and Petitioners’ alleged failure to adequately regulate the Flint water supply. 1st Am. Compl. ¶ 1. Such

conduct falls squarely within the SDWA’s ambit,

which limits private remedies to citizen suits after

compliance with the SDWA’s notice provisions and

does not authorize claims for damages. 42 U.S.C.

§ 300j-8. Allowing Plaintiffs “to circumvent the

[SDWA’s] provisions in this way would have been

inconsistent with Congress’ carefully tailored

scheme.” Fitzgerald, 555 U.S. at 254–55 (citations

and quotations omitted). Thus, as the district court

held, these claims are precluded by the SDWA.

Accord Mattoon, 980 F.2d at 5–6.

Finally, as the Court may be aware, the federaland state-court litigation involving the contamination of Flint water is massive. There are seven

pending SDWA citizen-suit enforcement actions,

more than 400 actions pending in state court, and

about 50 more pending in federal court, along with a

Master Individual Complaint anticipated to result in

hundreds of additional plaintiffs.3 This is not a

situation where Plaintiffs will be deprived of any

remedy if the Court grants the petition and rules in

favor of Petitioners. Plaintiffs have many other

3 See generally https://goo.gl/m7tFbE.

34

federal and state tort claims pending in both state

and federal court. Rather, a grant and reinstatement

of the district-court decision will simplify what is

already over-complicated litigation, by removing

§ 1983 claims that Congress never intended to allow.

The result may be a close call when a § 1983 claim is

based on the Equal Protection Clause in an SDWA

case. But it is not a close question when the § 1983

claim is based on the Due Process Clause in an

SDWA case, the claim that the Sixth Circuit allowed

to go forward against Petitioners here.

***

The Court should grant the petition, resolve the

patchwork and haphazard decisions that characterize how lower courts resolve preclusion questions,

reverse the Sixth Circuit, and reinstate the district

court’s judgment of dismissal with respect to the

seven individual Petitioners. Allowing Plaintiffs to

pursue their claims will undermine the carefully

reticulated remedial scheme that Congress put in

place by enacting the SDWA.

35

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

JOHN J. BURSCH

Counsel of Record

BURSCH LAW PLLC

9339 Cherry Valley

Avenue SE, #78

Caledonia, MI 49316

(616) 450-4235

jbursch@burschlaw.com

Counsel for Petitioners Busch,

Cook, Prysby, Rosenthal,

Shekter-Smith, Wurfel &

Wyant

MICHAEL JOHN PATTWELL

JAY M. BERGER

CHRISTOPHER B. CLARE

CLARK HILL PLC

500 Woodward Ave.

Suite 3500

Detroit, MI 48226

(517) 318-3043

mpattwell@clarkhill.com

Counsel for Petitioners

Wyant & Wurfel

36

CHARLES E. BARBIERI

ALLISON M. COLLINS

FOSTER, SWIFT, COLLINS

& SMITH

313 S. Washington Square

Lansing, MI 48933

(517) 371-8155

CBarbieri@fosterswift.com

Counsel for Petitioners

Rosenthal, Cook & Prysby

THADDEUS E. MORGAN

FRASER TREBILCOCK

124 W. Allegan Street

Suite 1000

Lansing, MI 48933

(517) 377-0877

tmorgan@fraserlawfirm.com

Counsel for Petitioner

Shekter-Smith

DECEMBER 2017

PHILIP A. GRASHOFF, JR.

DENNIS K. EGAN

KRISTA A. JACKSON

KOTZ SANGSTER WYSOCKI

36700 Woodward Ave.

Suite 300

Bloomfield Hills, MI 48304

(313) 965-8300

pgrashoff@kotzsangster.com

Counsel for Petitioner

Busch