Michigan Department of Environmental Quality v. City of Flint
OPINION AND ORDER Denying Intervening Defendant's Emergency 40 Motion for Reconsideration, to Alter or Amend Judgment, for Relief from Judgment, and for Stay of Proceedings. Signed by District Judge David M. Lawson. (SPin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
MICHIGAN DEPARTMENT OF
Civil Case Number 17-12107
Honorable David M. Lawson
CITY OF FLINT,
FLINT CITY COUNCIL,
OPINION AND ORDER DENYING INTERVENING DEFENDANT’S EMERGENCY
MOTION FOR RECONSIDERATION, TO ALTER OR AMEND JUDGMENT,
FOR RELIEF FROM JUDGMENT, AND FOR STAY OF PROCEEDINGS
The Court entered judgment in this case on October 17, 2017 directing defendant City of
Flint to execute a long-term contract providing for a source of water for its water distribution by
October 23, 2017. The contract must comply with an Emergency Administrative Order that had
been issued several months earlier by the Environmental Protection Agency (EPA). The delay in
finalizing such an agreement imperiled the solvency of Flint’s water system and its future capacity
to deliver safe drinking water to Flint’s residents. The City of Flint has now concurred in the
judgment’s order for relief. Its City Council — an intervening defendant — has filed a motion for
relief from that judgment, or to amend the judgment, or to stay the proceedings, because, it says
(among other things), it wants more time to gather information and mull this over. Plaintiff
Michigan Department of Environmental Quality (MDEQ) argues that much of the information that
the City Council presents to support its new arguments comes too late in this litigation, and the
urgent need for a long-term contract still exists. With one exception, the Court agrees. And that
exception consists of a subject matter jurisdiction argument that is unpersuasive. Therefore, the
Court will deny the City Council’s motion.
MDEQ discussed in its response to the motion various options for enforcing the judgment.
But the Court does not act on its own in that realm. If the judgment remains unsatisfied, the plaintiff
must take the initiative to file an appropriate motion for enforcement.
The City Council presents six arguments: (1) there is no subject matter jurisdiction because
MDEQ did not satisfy the 60-day notice provision of the Safe Drinking Water Act’s citizen suit
section; (2) Flint’s rate of collecting water bills could improve to the point that insolvency of the
water fund is not inevitable; (3) there are factual disputes that should have precluded summary
judgment; (4) the Court was required to hold an evidentiary hearing before issuing a permanent
injunction; (5) forcing Flint’s legislative body to sign a contract violates certain state laws; and (6)
a stay of the judgment is appropriate because Flint is not in danger of losing its source of drinking
water. These arguments purportedly are based on Federal Rules of Civil Procedure 59(e), 60(b)(1),
60(b)(6), and 62(b), and Local Rule 7.1(h). Other than citing those rules in the first paragraph of
its motion, the City Council does not discuss the requirements of those rules or mention them again
in its brief. Appreciating those rules’ requirements, however, is necessary to applying them.
A party seeking relief under Rule 59(e) must show one of four things: “(1) a clear error of
law; (2) newly discovered evidence; (3) an intervening change in controlling law; or (4) a need to
prevent manifest injustice.” Intera Corp. v. Henderson, 428 F.3d 605, 620 (6th Cir. 2005) (citing
GenCorp, Inc. v. Am. Int’l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999)). The “newly
discovered evidence,” though, “‘must have been previously unavailable.’” HDC, LLC v. City of Ann
Arbor, 675 F.3d 608, 615 (6th Cir. 2012) (quoting GenCorp, 178 F.3d at 834). “[T]he newly
discovered evidence also ‘must be of such a nature as would probably produce a different result,’
and it is well-settled that the requirements for newly discovered evidence are essentially the same
under Rule 59(e) and 60(b)(2).” F.D.I.C. v. Arciero, 741 F.3d 1111, 1117 (10th Cir. 2013) (quoting
Devon Energy Prod. Co., L.P. v. Mosaic Potash Carlsbad, Inc., 693 F.3d 1195, 1213 (10th Cir.
2012); 11 Charles A. Wright, Federal Practice and Procedure § 2859 (2012) (“The same standard
applies to motions on the ground of newly discovered evidence whether they are made under Rule
59 or Rule 60(b)(2).”). However, “parties cannot use a motion for reconsideration [under Rule
59(e)] to raise new legal arguments that could have been raised before a judgment was issued.”
Roger Miller Music, Inc. v. Sony/ATV Publishing, LLC, 477 F.3d 383, 395 (6th Cir. 2007) (citing
Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998) (stating that
“[a] motion under Rule 59(e) is not an opportunity to re-argue a case”).
A motion based on Rule 60(b)(1) is “intended to provide relief to a party in only two
instances: (1) when the party has made an excusable litigation mistake or an attorney in the litigation
has acted without authority; or (2) when the judge has made a substantive mistake of law or fact in
the final judgment or order.” Cacevic v. City of Hazel Park, 226 F.3d 483, 490 (6th Cir. 2000)
(internal quotation marks omitted). As with a Rule 59(e) motion, a party may not use Rule 60(b)
“as an occasion to relitigate its case.” General Universal Systems, Inc. v. Lee, 379 F.3d 131, 157
(5th Cir. 2004).
The Sixth Circuit has held that a court may grant relief under Rule 60(b)(6) “‘only in
exceptional and extraordinary circumstances,’ which are defined as those ‘unusual and extreme
situations where principles of equity mandate relief.’” Export-Import Bank of U.S. v. Advanced
Polymer Sciences, Inc., 604 F.3d 242, 247 (6th Cir. 2010) (quoting Jinks v. AlliedSignal, Inc., 250
F.3d 381, 387 (6th Cir. 2001)). In addition, “something more than one of the grounds in subsections
(1) through (5)” must be shown to justify relief under Rule 60(b)(6). East Brooks Books, Inc. v. City
of Memphis, 633 F.3d 459, 465 (6th Cir. 2011).
Rule 62(b) allows a court to stay the execution of a judgment in the short term if a postjudgment motion is pending under, among others, Rules 59 or 60. But such a stay must be “[o]n
appropriate terms for the opposing party’s security.” Fed. R. Civ. P. 62(b). “What constitutes
‘appropriate terms’ is a matter left to the trial court’s discretion, but normally the party seeking a
stay is required to post a bond sufficient to protect fully the prevailing party’s interest in the
judgment.” Newburgh/Six Mile Ltd. P’ship II v. Adlabs Films USA, Inc., No. 09-11067, 2010 WL
3167393 at *1 (E.D. Mich. Aug. 9, 2010) (internal quotation marks and citations omitted). To
obtain a longer stay, the moving party must show that four factors, in balance, favor that relief.
Those factors are: “(1) the likelihood that the party seeking the stay will prevail on the merits of the
appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the
prospect that others will be harmed if the court grants the stay; and (4) the public interest in granting
the stay.” Service Employees Int’l Union Local 1 v. Husted, 698 F.3d 341, 343 (6th Cir. 2012)
(citing Michigan Coalition of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153
(6th Cir. 1991)); see also Jpmorgan Chase Bank, N.A. v. Winget, No. 08-13845, 2016 WL 627755,
at *1 (E.D. Mich. Feb. 17, 2016). The factors are “interrelated considerations,” ibid. (quoting
Griepentrog, 945 F.2d at 153), meaning that a strong showing of irreparable injury, for example,
might make up for a modest showing of likely success. Griepentrog, 945 F.2d at 153-54 (observing
that “more of one excuses less of the other” (citations omitted)). However, a defendant seeking to
stay a district court’s judgment “is still required to show, at a minimum, ‘serious questions going
to the merits.’” Ibid.
Finally, under Local Rule 7.1(h), the moving party must show (1) a “palpable defect,” (2)
that misled the court and the parties, and (3) that correcting the defect will result in a different
disposition of the case. E.D. Mich. LR 7.1(h)(3). A “palpable defect” is a defect which is obvious,
clear, unmistakable, manifest, or plain. Mich. Dep’t of Treasury v. Michalec, 181 F. Supp. 2d 731,
734 (E.D. Mich. 2002) (citations omitted). “Generally . . . the court will not grant motions for
rehearing or reconsideration that merely present the same issues ruled upon by the court.” E.D.
Mich. LR 7.1(h)(3).
There is a common denominator among most of these rules: a party that has had a fair chance
to present its arguments ought not have a second bite at the apple. Most of the City Council’s
present arguments could be dispatched under this rubric. However, the contention that the MDEQ
failed to abide by the SDWA’s citizen suit 60-day notice requirement requires special attention,
because if subject matter jurisdiction is implicated, the issue can be raised at any time, even if a
party passed on the opportunity earlier in the case.
A. 60-day Notice Provision
The SDWA’s citizen suit provision contains this caution:
No civil action may be commenced--
(1) under subsection (a)(1) of this section respecting violation of a requirement
prescribed by or under this subchapter-(A) prior to sixty days after the plaintiff has given notice of such violation (i)
to the Administrator, (ii) to any alleged violator of such requirement and (iii)
to the State in which the violation occurs . . . .
42 U.S.C.A. § 300j-8(b)(1)(A). Citing Hallstrom v. Tillamook County, 493 U.S. 20 (1989), the City
Council contends that this statute is “jurisdictional,” and that the MDEQ did not comply with it.
Whether the 60-day notice requirement is a jurisdictional requisite on one hand, or a claim
processing rule on the other, is an important consideration. If the former, the issue can be raised at
any time. Schultz v. Gen. R.V. Ctr., 512 F.3d 754, 756 (6th Cir. 2008). If the latter, then the
question must be raised under Rule 12(b)(6) or Rule 56. A motion under Rule 12(b)(6) “must be
made before pleading if a responsive pleading is allowed.” Fed. R. Civ. P. 12(b). And a motion
under Rule 56 may be filed “at any time until 30 days after the close of all discovery.” Fed. R. Civ.
P. 56(b). A challenge to the notice requirement after judgment is entered comes too late, unless
subject matter jurisdiction is implicated.
In Hallstrom, the Supreme Court considered the notice requirement in the citizen suit section
of the Resource Conservation and Recovery Act (RCRA), found at 42 U.S.C. § 6972(b)(1), which
reads similarly to its counterpart in the SDWA. The defendant timely raised the notice defect in a
motion for summary judgment, but the district court found that the purpose of the statute had been
satisfied because the state agencies had notice of the claim for 60 days while the lawsuit had been
pending and chose to take no action. 493. U.S. at 24. The Court held that the notice and delay
requirements “are mandatory conditions precedent to commencing suit” under that statute, which
the “district court may not disregard.” 493 U.S. at 31. However, the Court did not answer the
question that is important here, as it decided that it “need not determine whether § 6972(b) is
jurisdictional in the strict sense of the term.” Ibid.
In Board of Trustees of Painesville Twp. v. City of Painesville, Ohio, 200 F.3d 396 (6th Cir.
1999), the Sixth Circuit discussed the citizen suit notice provision in the Clean Water Act in
jurisdictional terms. 200 F.3d at 400 (“This circuit has always required plaintiffs to adhere to §
1365’s notice provision because compliance with the notice requirement is a jurisdictional
prerequisite to recovery under the statute.”) (emphasis added). In that case, the notice defect was
raised in a timely motion to dismiss under both Rules 12(b)(1) and 12(b)(6). The district court
granted the motion, and the Sixth Circuit affirmed because Supreme Court precedent “clearly
precludes us from implying a private right of action against the defendant under the CWA.” Id. at
397. The court also discussed an alternate ground that failure to abide by the notice provision
“deprives us of jurisdiction.” Ibid. But that finding was not necessary to the holding in that case,
and the court cited Hallstrom for that proposition, which does not support it.
The eighteen-year-old Painesville dictum has been called into question. More recently, the
Sixth Circuit has warned that attacks on the merits should not be confounded with jurisdictional
challenges, admonishing courts to be more exacting when addressing challenges that are phrased
as an attack on jurisdiction. Primax Recoveries, Inc. v. Gunter, 433 F.3d 515, 518-19 (6th Cir. 2006)
(“‘Clarity would be facilitated . . . if courts and litigants used the label ‘jurisdictional’ not for claimprocessing rules, but only for prescriptions delineating the classes of cases (subject-matter
jurisdiction) and the persons (personal jurisdiction) falling within a court’s adjudicatory authority.’”
(quoting Eberhart v. United States, 546 U.S. 12, 16 (2005) (per curiam), and citing Kontrick v. Ryan,
540 U.S. 443, 453 (2004))). The embodiment of that admonishment most recently is found in
United States v. Kwai Fun Wong, 135 S. Ct. 1625 (2015), where the Supreme Court held that the
time limits in the Federal Tort Claims Act (FTCA) are nonjurisdictional and subject to equitable
The Kwai Fun Wong Court explained that absent a clear statement from Congress,
procedural rules are nonjurisdictional, and accordingly do not “deprive a court of authority to hear
a case.” Id. at 1632. “In recent years, we have repeatedly held that procedural rules, including time
bars, cabin a court’s power only if Congress has ‘clearly stated’ as much.” Ibid. The Court reasoned
that only a jurisdictional time bar would forbid equitable tolling. In concluding that the time bar at
issue was not jurisdictional, the Court found that the provision “does not speak in jurisdictional
terms or refer in any way to the jurisdiction of the district courts.” Id. at 1633.
Similarly, section 300j-8(b) does not speak in jurisdictional terms and is housed in a
provision separate from section 300j-8(a), which confers upon federal courts jurisdiction over these
citizen suits. Section 300j-8(b) does not include any clear statement from Congress that would limit
the Court’s authority to hear this case. It simply prescribes a condition precedent to filing a suit,
which, absent jurisdictional language, probably is subject to forfeiture. Kwai Fun Wong cuts against
the Sixth Circuit’s jurisdiction-based statements in Painesville and supports the proposition that
notice requirements fall under the label of “quintessential claim-processing rules,” which “seek to
promote the orderly progress of litigation,” speaking “only to a claim’s timeliness, not to a court’s
power.” Id. at 1632 (internal marks and citations omitted). See also Boler v. Early, 865 F.3d 391,
405 (“Plaintiffs bringing claims under the SDWA must also comply with certain procedural
requirements, including providing a notice of intent to potential defendants 60 days prior to filing
suit.”) (emphasis added).
In asserting that the Court lacks jurisdiction, the City Council also relies on Judge O’Meara’s
opinion in McMillian v. Snyder, No. 16-10796, 2017 WL 492077 at *1-2 (E.D. Mich. Feb. 7, 2017),
where the court, citing Hallstrom, granted the defendants’ motion to dismiss in part based on the
plaintiffs’ failure to comply with section 300j-8(b)’s 60-day notice provision. Contrary to the City
Council’s position, McMillian actually supports the proposition that the notice provision is
procedural — and accordingly subject to forfeiture — because the defendants there properly raised
the issue in Rule 12(b)(6) motions to dismiss. See Briefs of Defendants, McMillian v. Snyder, No.
16-10796, 2017 WL 492077. Although Judge O’Meara styled the defendants’ argument as the
plaintiffs’ failure to comply with “the statute’s jurisdictional arguments,” the basis for dismissal on
most of the nine motions the defendants filed was a failure to state a claim, not a lack of subject
The weight of authority favors the view that the 60-day notice requirement in section 300j8(b) is a claim processing rule that imposes a procedural requirement. To be sure, it is a requirement
that a district court may not disregard. Hallstrom, 493. U.S. at 31. But a defendant also must raise
the issue on time, and failure to do so will result in a forfeiture. The intervening defendant did not
raise the issue until after judgment was entered, despite the opportunity to do so earlier in the case.
Because Congress has not made the SDWA’s notice provision a condition of subject matter
jurisdiction, it is not an issue that the City Council was free to raise “at any stage in the
proceedings.” See Schultz, 512 F.3d at 756. Waiting until now to raise the issue forfeits it. United
States v. Huntington Nat. Bank, 574 F.3d 329, 331-32 (6th Cir. 2009) (stating that “absent a
legitimate excuse, an argument raised for the first time in a motion for reconsideration at the district
court generally will be forfeited“) (citing Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 553 (6th Cir.
Moreover, section 300j-8(b) only obligates “the plaintiff” to give “notice of such violation”
“to the [EPA] Administrator,” the “alleged violator,” and “the State.” The City Council argues that
the September 2016 letter to Flint from the EPA does not satisfy that requirement because it did not
come from the plaintiff. But according to the MDEQ, its own administrator also sent Flint a letter
in September 2016 that echoed the EPA’s concerns. That letter, coupled with the many expressions
of concern about the potential failure “to make changes in operations” so that its “waterworks
system [would be] operated as to . . . adequately protect the public health,” Mich. Comp. Laws §
325.1015(1), (2), provides notice to the “alleged violator.” Additional and separate notice to the
EPA and the state certainly was not required, since those entities generated the notice to begin with.
The City Council’s challenge to the Court’s subject matter jurisdiction must fail.
B. Projected Water Fund Insolvency
Based on the declaration of William Scott Kincaid, the City Council constructs a scenario
in which the impending insolvency of Flint’s water fund would not be inevitable. According to Mr.
Kincaid, the root of the problem is the mistrust engendered among Flint’s residents by the
catastrophic failure of the water system under the guidance of the state-appointed emergency
manager. He explains that before April 2014, the collection rate was 90%. But after the City
switched its water source to the Flint River, drinking water quality plummeted and many residents
quit using the water and paying their bills. In addition, Mr. Kincaid points out that the City
unlawfully raised water rates, a position ultimately sustained by the Michigan Court of Appeals.
He says that if things are made right — that is, water rates are reduced and trust is restored —
collection rates will rise and the insolvency of the water fund is not inevitable.
The City Council seems to think that Mr. Kincaid’s speculation undermines the finding that
the injury identified by the MDEQ is imminent. It does not, for several reasons. First, there is no
evidence that a rise in collection rates, coupled with a restoration of water rates — which Mr.
Kincaid would calculate as a reduction of about 36% — would cause a marked increase in water
revenue. It might even result in a reduction in revenue. But it is hard to say, because the statements
in the declaration are quite general and not focused on concrete financial analysis. Second, there
is no evidence that accomplishing those goals could take place in the near future, or at any time
before the water fund runs out of money. Third, the collection rates are not Flint’s only problem.
As outlined in the summary judgment opinion, Flint also is on the hook now for monthly bond
payments to the Karegnondi Water Authority (KWA), and there is a need to spend for infrastructure
improvement to ensure the safety of the water delivery system. An increase in the rate of collecting
water bills that charge a third less for the service is, one might say, but a drop in the bucket.
The reasoning behind Mr. Kincaid’s declaration also is cause for concern. The facts laid out
by the MDEQ portend dire consequences for Flint residents if its government does not act — and
soon — to address their long-term water needs. Mr. Kincaid proposes a solution that has no
apparent basis in actual city finances. He asserts that he has been a member of the City Council for
over thirty years and has been “directly involved in the finances of Flint.” He does not profess any
special knowledge or expertise in accounting or finance. And his analysis fails to focus on the
several interrelated factors that impact the solvency of the Flint water fund. The Court does not
deem it prudent to rely on that declaration to find “newly discovered evidence” (Rule 59(e)), or “a
substantive mistake of . . . fact” (Rule 60(b)(1)), or “exceptional and extraordinary circumstances”
(Rule 60(b)(6)), or a “palpable defect” in its prior reasoning (LR 7.1(h)(3)).
C. Factual Disputes
The City Council has cataloged a list of potential issues that it has characterized as “factual
disputes,” which, it believes, ought to prevent summary judgment. None of these were raised in
response to the MDEQ’s motion for summary judgment in briefing or oral argument. The City
Council now argues that it “was not asked for, and did not provide, a stipulation or waiver
concerning facts.” But that argument intimates a fundamental misunderstanding of the summary
Under Federal Rule of Civil Procedure 56, the party bringing the summary judgment motion
has the initial burden of informing the court of the basis for its motion and identifying portions of
the record that demonstrate the absence of a genuine dispute over material facts. Mt. Lebanon Pers.
Care Home, Inc. v. Hoover Universal, Inc., 276 F.3d 845, 848 (6th Cir. 2002). The MDEQ did that
in its motion. If the defendant or intervening defendant wanted to contend that facts are in dispute,
they could not simply “rely on the hope that the trier of fact will disbelieve the movant’s denial of
a disputed fact”; instead they must make an affirmative showing with proper evidence to defeat the
motion. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989). That should have been
done by designating specific facts in affidavits, depositions, or other factual material showing
“evidence on which the jury could reasonably find for the [intervening defendant].” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). If the non-moving party is unable to meet that
burden, then summary judgment is clearly proper. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
The City Council never offered any factual material — or even raised an argument — that
questioned the MDEQ’s established assertions. Even now, the list of potential facts that might be
in dispute is entirely undocumented.
But, City Council argues, there was not much time for discovery and the Court moved
quickly through the procedures. Rule 56 has an answer for that: City Council could have attempted
to “show by affidavit or declaration that, for specified reasons, it cannot present facts essential to
justify its opposition” to summary judgment. Fed. R. Civ. P. 56(d). No such affidavit or declaration
was submitted. The City Council chose instead to base its opposition to MDEQ’s summary
judgment motion on legal arguments focusing mostly on justiciability issues. Relief, therefore, is
foreclosed. Unan v. Lyon, 853 F.3d 279, 292 (6th Cir. 2017) (“We have observed that filing an
affidavit that complies with Rule 56(d) is essential, and that in the absence of such a motion or
affidavit, ‘this court will not normally address whether there was adequate time for discovery.’”)
(quoting Plott v. Gen. Motors Corp., 71 F.3d 1190, 1196 (6th Cir. 1995)).
The Seventh Circuit confronted a similar circumstance in Publishers Resource, Inc. v.
Walker-Davis Publications, Inc., 762 F.2d 557 (7th Cir. 1985). The defendant appealed the district
court’s summary judgment for the plaintiff and “raised several other arguments on appeal which it
contends involve material issues of fact that make the entry of summary judgment improper.” Id.
at 561. After observing that “[n]one of these issues were raised in response to [the plaintiff’s]
summary judgment motion; they were only argued in support of [the defendant’s] motion to
reconsider,” the court quoted this language from another district court opinion:
Motions for reconsideration serve a limited function: to correct manifest errors of
law or fact or to present newly discovered evidence. Such motions cannot in any
case be employed as a vehicle to introduce new evidence that could have been
adduced during pendency of the summary judgment motion. The non-movant has
an affirmative duty to come forward to meet a properly supported motion for
summary judgment. . . . Nor should a motion for reconsideration serve as the
occasion to tender new legal theories for the first time.
Ibid. (quoting Keene Corp. v. International Fidelity Ins. Co., 561 F. Supp. 656, 665-66 (N.D. Ill.
1982) (citations and footnote omitted) (emphasis added), aff’d, 736 F.2d 388 (7th Cir. 1984).
So it is here. The City Council’s opposition to summary judgment comes too little, too late.
There is no basis to grant relief on this ground under any of the rules the City Council cited.
D. Need for Evidentiary Hearing before Permanent Injunction Issuance
Relying on United States v. Owens, 54 F.3d 271 (6th Cir. 1995), the City Council insists that
the Court was obliged to hold an evidentiary hearing before issuing a permanent injunction. That
argument ignores the idea that an evidentiary hearing is not necessary when the defendant fails to
show that there are factual disputes and does not avoid summary judgment. Moreover, Owens does
not support the City Council’s argument.
In Owens, the district court issued a preliminary injunction after a hearing, but later
converted it to a permanent injunction without notifying the parties or conducting a trial. 54 F.3d
at 276. The defendant contested that move in a motion to amend the judgment, which the district
court denied. On appeal, the court stated that “it is generally inappropriate for a federal court at the
preliminary injunction stage to give a final judgment on the merits.” Ibid. (quoting Univ. of Texas
v. Camenisch, 451 U.S. 390, 395 (1981)). That is because, “a preliminary injunction is customarily
granted on the basis of procedures that are less formal and evidence that is less complete than in a
trial on the merits.” Ibid. (quoting Camenisch, 451 U.S. at 395).
There was no motion for a preliminary injunction in this case. The MDEQ sought a
judgment as a matter of law under Rule 56. The procedure criticized in Owens was different than
that at work here. And, as the Owens court acknowledged, “when there is no dispute of material fact
alleged, then it may be appropriate for a court to decide a case without an evidentiary hearing.” Id.
at 277 (citing United States v. McGee, 714 F.2d 607, 613 (6th Cir. 1983)).
E. Injunction and State Laws
The City Council also argues to the extent the Court’s judgment forces the City to approve
a contract against its will, the judgment violates the Flint City Charter and state law contract
principles. But as the Court noted in its order, it is within the power of the federal courts to order
performance by a local government in excess of limits set by state statute. Missouri v. Jenkins, 495
U.S. 33, 57 (1990). As the court held in Bylinski v. City of Allen Park, 8 F. Supp. 2d 965, 970-71
(E.D. Mich. 1998), state law must yield when necessary to enforce federal law.
Under Jenkins, when a federal court determines that a local municipality’s actions
violate a federal statute that is based on provisions of the United States Constitution
(in this case defendant municipalities violated the Federal Clean Water Act, 33
U.S.C. §§ 1251 et seq., enacted by Congress empowered by provisions in the
Constitution), the court may order a local government unit with taxing authority to
levy taxes adequate to satisfy the municipality’s debt obligations incurred in
complying with federal law, even if the taxes exceed state constitutional and
statutory limitations. In other words, Jenkins permits a federal court to enjoin
operation of state statutes and constitutional provisions prohibiting a local
government unit from levying taxes at a rate above limits set by state law without
majority electorate approval.
In that case, the court was enforcing the Clean Water Act and found authority in the
Constitution’s general welfare clause as well as the Commerce Clause to do so. As the court aptly
noted, “No more important single problem faces this country today than the problem of “good
water.” Water is our greatest single natural resource.” Id. at 971 (quoting H.R. Rep. No. 89-215,
at 1 (1965), U.S. Code Cong. & Admin. News 1965, p. 3313).
Here, the plaintiff has demonstrated, and the Court has found, that Flint’s need for a longterm agreement for a source of safe drinking water is dire. Ordering compliance with the SWDA
does not disregard principles of equity or comity.
F. Stay of Judgment
Lastly, the City Council asks the Court to stay its judgment, presumably to allow it to retain
an expert to evaluate alternatives to the erstwhile deal that the Flint administration negotiated last
April. City Council does not develop its argument, but it appears that the basis of this request is that
it has shown that Flint is not at risk of losing access to the 72-inch pipeline owned by the Genesee
County Drain Commission or its current source of drinking water.
There is no basis to conclude that the need for immediate action has diminished. In fact, as
time slips away, Flint’s opportunities for an economical long-term water supply contract are running
out. As the Flint administration has outlined in its opposition to this motion, the City Council’s
inaction has resulted in losing a favorable contract with the Great Lakes Water Authority (GLWA)
that would have provided credits — including retroactive credits — against the KWA bond debt,
relieved Flint of that obligation, provided Flint with a long-term source of safe water at predictable
rates, established a fund for those unable to pay their water bills, and freed cash for infrastructure
repair and improvement. That deal is off the table, and it is unclear whether all or part of it can be
The City Council’s water consultant wants 75 days to complete his task. During that time,
the window will close on the opportunity to refinance the KWA bond debt. Meanwhile, Flint will
pay short-term (that is, premium) rates for its water and a hefty sum to KWA each month.
And the source of Flint’s water during that period is not secure. The City Council voted to
extend its current contract with GLWA for two more years, after it expires at the end of this month.
That certainly is no long-term contract, and there is no evidence that the proposal was communicated
to GLWA, or that GLWA would be disposed to accept it. One might wonder if GLWA, which is
under an obligation to treat all of its municipal water customers with equal favor, could even accept
such a proposal; or why, as the administration points out, GLWA would allow City Council to
“string it along while it attempts to secure another water source.”
The City Council has fallen far short of proposing “appropriate terms for the opposing
party’s security.” Fed. R. Civ. P. 62(b). In fact, its actions (and inactions) since the judgment was
entered — such as they are — likely has made Flint’s situation worse. The administration suggests
that the delay caused by the stay City Council seeks would be the last brick on the road to Flint’s
bankruptcy. The evidence indicates that its assessment may be accurate.
The City of Flint’s brief includes press accounts of City Council members decrying the
Court’s intervention, complaining about the “gun [held] to [their] head,” “forced into signing a
contract.” The Court’s judgment, however, ordered the City of Flint to do what its citizens elected
their representatives to do: govern by acting in the interest of the common good. That has not
happened over the past year, and now time — which is of the essence — is in short supply.
MDEQ and the City of Flint have asked the Court to authorize the mayor to sign the Master
Agreement negotiated last spring. But that deal in no longer available, since the signature escrow
agreement expired on September 30 this year due to the City Council’s inaction. In all events, the
City Council has not offered any good reasons for reconsidering, altering, amending, withdrawing,
or staying this Court’s judgment. The parties may move to enforce it as they see fit.
Accordingly, it is ORDERED that the intervening defendant’s emergency motion for
reconsideration, to alter or amend judgment, for relief from judgment, and for stay of proceedings
[dkt. #40] is DENIED.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: October 27, 2017
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on October 27, 2017.
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