Walters et al v. Flint et al
Filing
1063
OPINION AND ORDER granting 1027 Motion for Partial Summary Judgment as to Adult Plaintiffs. Signed by District Judge Judith E. Levy. (WBar)
Case 5:17-cv-10164-JEL-KGA ECF No. 1063, PageID.72421 Filed 05/04/23 Page 1 of 22
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
In re Flint Water Cases.
Case No. 16-cv-10444
(consolidated)
________________________________/
Judith E. Levy
United States District Judge
This Order Relates To:
Walters, et al. v. City of Flint, et al.
Case No. 17-10164
Meeks, et al. v. United States,
Case No. 19-13359
________________________________/
OPINION AND ORDER GRANTING THE UNITED STATES’
MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO ADULT
PLAINTIFFS [1027]
This is one of many cases collectively referred to as the Flint Water
Cases. Before the Court is Defendant the United States’ motion to
dismiss 350 adult Plaintiffs for failure to provide adequate notice of their
claims before filing this lawsuit, as required under 28 U.S.C. § 2675(a).
(ECF No. 1027.) Plaintiffs filed their response to the United States’
motion on February 22, 2023. (ECF No. 1059.) The United States filed its
reply brief on March 15, 2023. (ECF No. 1060.)
Case 5:17-cv-10164-JEL-KGA ECF No. 1063, PageID.72422 Filed 05/04/23 Page 2 of 22
For the reasons set forth below, the Court grants Defendant’s
motion and the 350 adult Plaintiffs are dismissed.
I.
BACKGROUND
A. The FTCA and Its Notice Requirement
Before Congress passed the Federal Tort Claims Act (“FTCA”),
sovereign immunity barred individuals from suing the federal
government for tort claims. See Millbrook v. United States, 569 U.S. 50,
52 (2013). Congress passed the FTCA to allow individuals “easy and
simple access to the federal courts for torts within its scope.” Dalehite v.
United States, 346 U.S. 15, 25 (1953), rev’d on other grounds by Rayonier,
Inc. v. United States, 352 U.S. 315, 377 (1957).
Congress included a provision in the FTCA requiring claimants to
present their claim to the appropriate federal agency before filing suit.
28 U.S.C. § 2675(a). The provision states, in relevant part:
An action shall not be instituted upon a claim against the
United States for money damages for injury or loss of property
or personal injury or death caused by the negligent or
wrongful act or omission of any employee of the Government
while acting within the scope of his office or employment,
unless the claimant shall have first presented the claim to the
appropriate Federal agency and his claim shall have been
finally denied by the agency in writing and sent by certified
or registered mail.
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If the claimant is not satisfied with the agency’s decision, the claimant
may file a lawsuit.1 Id.
At the heart of the FTCA’s notice requirement are two principles:
“efficiency and fairness.” Copen v. United States, 3 F.4th 875, 882 (6th
Cir. 2021). The notice requirement of § 2675(a) was intended to “‘reduce
congestion of federal courts’ dockets and to speed fair treatment of those
asserting claims against the federal government.’” Id. (quoting Douglas
v. United States, 658 F.2d 445, 447 (6th Cir. 1981)). The notice
requirement in § 2675(a) was also intended to provide federal agencies
with “‘a fair opportunity to investigate and possibly settle the claim
before the parties must assume the burden of costly and time-consuming
litigation.’” Id. (quoting McNeil v. United States, 508 U.S. 106, 111–12
(1993).
B. Meeks Procedural Background
The Meeks Plaintiffs consist of 1,078 Flint residents, 728 of whom
are minor children (“Minor Plaintiffs”) and the remaining 350 are adult
parents and next friends of Minor Plaintiffs (“Adult Plaintiffs”). (See ECF
An agency’s failure to issue a final disposition within six months of filing is
also considered a final denial under § 2675(a). 28 U.S.C. § 2675(a).
1
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No. 1059, PageID.72395–72396). All Plaintiffs allege that they suffered
harm from exposure to contaminated drinking water during what is now
known as the Flint Water Crisis.
Before filing this case, from March through June 2017, Plaintiffs’
counsel sent six batches of FTCA claims (totaling over 8,000 pages) to the
Environmental Protection Agency (“EPA”) seeking compensation on
behalf of claimants. (ECF No. 1027-1, PageID.70897.) Plaintiffs made
these submissions pursuant to 28 U.S.C. § 2675(a), described above.
On November 13, 2019, the Meeks Plaintiffs filed their complaint
against the EPA. (Case No. 19-13359, ECF No. 1; Case No. 17-10164,
ECF No. 315-1.2) The complaint clearly states that each Adult Plaintiff
is pursuing a claim on their own behalf and on behalf of their minor
children. (Id.) On June 5, 2020, the United States filed a motion to
dismiss the complaint for lack of subject matter jurisdiction. (Case No.
In 2020, the Court consolidated the Meeks case with Walters v. City of Flint,
No. 17-10164. Thereafter, all Meeks filings were made on the Walters docket. (Case
No. 17-10164, ECF No. 294.) More recently, the Court consolidated all Flint Water
Cases, requiring all filings to be made on the docket in Case No. 16-10444. (See Case
No. 16-10444, ECF No. 2308.) The United States filed this motion in Case No. 1710164, and, for the sake of docket clarity, the Court enters this Order in both Case
No. 17-10164 and in Case No. 16-10444.
2
4
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17-10164, ECF No. 300.) In its 2020 motion to dismiss, the United States
set forth three jurisdictional arguments.3
On August 26, 2020, the Court denied the United States’ motion for
the reasons set forth in that Opinion and Order. (Case No. 17-10164, ECF
No. 318.) Then, on October 13, 2020, the United States moved for
certification of an interlocutory appeal of the Court’s August 26, 2020
Opinion and Order under 28 U.S.C. § 1292(b) (Case No. 17-10164, ECF
No. 320) and on September 7, 2022, the Court denied the motion. (Case
No. 17-10164, ECF No. 917.)
Thereafter, on October 7, 2022, the United States filed an answer
to Plaintiffs’ complaint (Case No. 17-10164, ECF No. 972) and asserted
that Plaintiffs failed to comply with § 2675(a). (Id. at PageID.69697,
69716, 69717.) On October 13, 2022, the Court entered a scheduling order
The United States made three arguments in its motion to dismiss. First, it
argued that Plaintiffs’ claims fell within the discretionary function exemption to the
limited waiver of sovereign immunity under the FTCA, 28 U.S.C. § 2680(a). This
exception to liability, the United States argued, barred Plaintiffs’ claims. Second, it
argued that Plaintiffs’ claims failed because they did not correspond to an analogous
tort claim against a private individual under Michigan law. And third, it argued that
the FTCA’s misrepresentation exception barred Plaintiffs’ claims predicated on their
alleged reliance on EPA’s misrepresentations. (ECF No. 300, PageID.8526.)
3
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applicable to Meeks v. United States. (Case No. 17-10164, ECF No. 976.)
In that Order, the Court stated:
The United States contends that the 350 adult Meeks
Plaintiffs failed to exhaust administrative remedies prior to
filing suit, and therefore this Court lacks subject-matter
jurisdiction over their claims. Within sixty (60) day[s] from
entry of this Order, the United States may file a motion to
dismiss on this issue and, if so, the Court will decide this issue
before discovery commences with respect to the adult Meeks
Plaintiffs’ claims.
(Id. at PageID.69792.)
Then, on December 12, 2022, the United States filed this motion.
(Case No. 17-10164, ECF No. 1027.) In its motion, the United States
argues that the Adult Plaintiffs failed to comply with the pre-suit notice
requirement of § 2675(a). (Case No. 17-10164, ECF No. 1027.)
II.
LEGAL STANDARD
The United States seeks dismissal of the Adult Plaintiffs’ claims
under Federal Rules of Civil Procedure 12(h)(3), 12(c), or 56. If the FTCA
notice requirement is a jurisdictional rule, then the Court applies Rule
12(h)(3) to its analysis. Rule 12(h)(3) governs subject matter jurisdiction,
and states: “If the court determines at any time that it lacks subject-
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matter jurisdiction, the court must dismiss the action.” Fed. R. Civ. P.
12(h)(3).
If the FTCA notice requirement is non-jurisdictional (also known as
a claim-processing rule) then the Court cannot apply Rule 12(h)(3), and
instead must apply either Rules 12(c) or 56. Rule 12(c) governs motions
for judgment on the pleadings and Rule 56 governs motions for summary
judgment.
The Court will apply Rule 56 because the analysis considers
matters outside the pleadings, specifically, the claimants’ submissions to
the FTCA and EPA employee Kenneth Redden’s affidavit. See Heinrich
v. Waiting Angels Adoption Servs, Inc., 668 F.3d 393, 405 (6th Cir. 2012)
(“A district court generally may only consider matters outside the
pleadings if they treat the motion “‘as one for summary judgment under
Rule 56.’” (quoting Fed. R. Civ. P. 12(d) 4)).
Rule 12(d) states that: “If, on a motion under Rule 12(b)(6) or 12(c), matters
outside the pleadings are presented to and not excluded by the court, the motion must
be treated as one for summary judgment under Rule 56. All parties must be given a
reasonable opportunity to present all the material that is pertinent to the motion.”
4
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III.
ANALYSIS
A. The FTCA Notice Requirement is Jurisdictional
The United States argues that § 2675(a)’s notice requirement is
jurisdictional. (Case No. 17-10164, ECF No. 1027.) In the alternative, the
United States argues that, even if the Court were to find that the notice
requirement is not jurisdictional, it is still a mandatory requirement that
the Adult Plaintiffs failed to comply with. The United States argues that
the Adult Plaintiffs’ claims are subject to dismissal whether or not the
Court finds the notice requirement to be a jurisdictional prerequisite.
(Id.)
Plaintiffs argue that the notice rule is neither jurisdictional nor
mandatory, and in any event, the United States was on notice of the
Adult Plaintiffs’ claims before the suit was filed. (Case No. 17-10164, ECF
No. 1059.) In other words, they argue that the Court need not determine
whether the FTCA’s notice requirement is jurisdictional or not because
the Adult Plaintiffs satisfied all pre-suit filing requirements. (Id.)
The Sixth Circuit has long considered § 2675(a) to be a
jurisdictional requirement. See Exec. Jet Aviation, Inc. v. United States,
507 F.2d 508, 514–15 (6th Cir. 1974) (finding the entirety of § 2675 to be
“jurisdictional” and stating that as a result, its requirements “cannot be
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waived by the Government.”); Glarner v. United Sates Dep’t of Veterans
Admin., 30 F.3d 697, 698 (6th Cir. 1994) (upholding the district court’s
dismissal of the lawsuit because the plaintiff’s failure to provide pre-suit
notice of his negligence claim “failed to satisfy the jurisdictional
requirements of the Federal Tort Claims Act.”); Blakely v. United States,
276 F.3d 853, 864 (6th Cir. 2002) (“Plaintiffs failed to exhaust their
administrative remedies in a timely fashion in accordance with the
Federal Tort[] Claims Act (‘FTCA’) prior to bringing the instant claim
against the government, which deprived the district court of jurisdiction
to entertain their claims.”).
More recently, the Sixth Circuit held that a different aspect of the
FTCA’s exhaustion requirement—that a plaintiff specify the dollar
amount they seek to recover in their administrative claim before filing
suit—is a non-jurisdictional claim-processing rule. Copen, 3 F.4th at 880–
81. The dollar specification requirement in the FTCA is set forth in §
2675(b)—not § 2675(a), which is at issue here. Therefore, Copen did not
change the jurisdictional holding regarding the remainder of § 2675
under Exec. Jet, Glarner, and Blakeley.
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The Sixth Circuit recently determined that § 2675(a)’s notice
requirement is a non-jurisdictional claim-processing rule in an
unpublished, non-binding decision. Kellom v. Quinn, No. 20-1003/1222,
2021 WL 4026789, at *3 (6th Cir. Sept. 3, 2021). The Sixth Circuit’s
decision in Kellom is consistent with the Supreme Court’s “clear
statement rule.” Under the clear statement rule, the Court will “treat a
procedural requirement as jurisdictional only if Congress ‘clearly states’
that it is.” Wilkins v. United States, 598 U.S. ---, 143 S. Ct. 870, 876 (2023)
(citing Boechler v. Comm’r, 596 U.S. ---, 142 S. Ct. 1493, 1497 (2022) (slip
op., at 3) (quoting Arbaugh v. Y & H Corp., 546 U.S. 500, 515 (2006)));
and see Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 166 (2010) (stating
that a statutory condition requiring a party to take an action before filing
a lawsuit is “not automatically a jurisdictional prerequisite to suit.”
(emphasis in original) (internal citations omitted); and see MOAC Mall
Holdings LLC v. Transform Holdco LLC, 598 U.S. ---, 2023 WL 2992693
at *2 (April 19, 2023) (stating that “important and mandatory
preconditions to suit, “like exhaustion requirements” are not, in
themselves, “jurisdictional.”). Kellom, though not binding, is instructive
and consistent with both the published decision in Copen, discussed
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above, and the direction that the Supreme Court is taking with respect
to pre-suit notice requirements in other statutes.
Jurisdictional rules cannot be waived. Henderson v. Shinseki, 562
U.S. 428, 435 (2011)). Claim-processing rules, even mandatory and
important ones, can be waived. If Kellom had been a published and
therefore binding decision, then § 2675(a) would be a non-jurisdictional
claim-processing rule, and the United States might have waived this
argument when it failed to raise it in its 2020 motion to dismiss. See
United States v. Alam, 960 F.3d 831 (6th Cir. 2020) (finding that the
administrative exhaustion requirement of the Prison Litigation Reform
Act, 18 U.S.C. § 3582, governing motions for compassionate release, is
mandatory but not jurisdictional, and therefore the government can
waive this argument if it fails to properly or timely invoke it). However,
that issue is not before the Court today. Under binding precedent, §
2675(a) remains jurisdictional, though this may not be the case for much
longer.
B. Adequate Notice Under § 2675(a)
Having found § 2675(a)’s notice requirement to be jurisdictional,
the Court will analyze whether the Adult Plaintiffs provided adequate
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notice to the EPA regarding their claims before filing their lawsuit. For
the reasons set forth below, the Court finds that the Adult Plaintiffs’
notices were inadequate.
1. Adequacy Standard
To comply with § 2675(a)’s notice requirement, a claimant must
provide “written notice of a claim sufficient to enable the agency to
investigate the claim.” Glarner, 30 F.3d at 700. One method for a
claimant to submit a notice to an agency is to use a three-page form titled
Standard Form 95 (“SF-95”). Claimants in this case used SF-95s as a
portion of their submissions to the EPA. They also included another
document entitled “Statement of Facts and Basis for Claim.” The
contents of both are discussed further below. (See ECF No. 1027-1,
PageID.70897.)
The Sixth Circuit discussed the adequacy of a § 2675(a) notice in
Copen v. United States. In Copen, an individual, Kelly Copen, and her
father, were involved in a car collision with a U.S. Postal Services vehicle.
Copen, 3 F.4th at 878. Ms. Copen submitted a single SF-95. Id. Ms. Copen
included her father’s name on the form but did not name her father
explicitly in the portion of the SF-95 labeled “claimant.” Rather, in that
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portion of the form, only Ms. Copen’s name appears. Id. at 884. Regarding
her father, Ms. Copen explained on the form that her father was the
driver of the vehicle in the collision, that he had been hospitalized, and
that the extent of his injuries were yet to be determined. Copen, 3 F.4th
at 884.
The Sixth Circuit concluded that both Ms. Copen and her father
provided adequate notice of their claims to the government on their
shared SF-95 form. Even though Ms. Copen’s father’s name was not listed
on the form as a “claimant,” the explanation of his injuries included on
the form provided the government with enough information to satisfy the
notice requirement as it related to him. Id.
In contrast, the Sixth Circuit found that the plaintiff’s pre-suit
notice in Rucker v. United States Dep’t of Lab., 798 F.2d 891 (6th Cir.
1986) did not comply with the requirements of § 2675(a). In Rucker, the
plaintiff, Kenneth Rucker, fell down a stairway in a government-owned
building. Id. at 892. He submitted an SF-95 to the government agency.
Id. He included his wife’s name on the SF-95 form and he identified her
as his wife. Id. at 893. However, he did not provide any other details
regarding his wife’s involvement or injuries.
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When analyzing the adequacy of Mr. Ruker’s wife’s notice, the Sixth
Circuit found that her notice was inadequate and held that “identifying
a claimant’s wife on a Standard Form 95, without more, is not sufficient
to fulfill the jurisdictional requirement of 28 U.S.C. § 2675(a).” Id.
The United States argues that the Adult Plaintiffs, like Mr.
Rucker’s wife in Rucker, merely placed their names on form SF-95
without more, which does not comply with the requirements of § 2675(a).
(ECF No. 1027, PageID.70887). Plaintiffs argue that the forms and
information they provided to the EPA are more akin to that provided in
Copen, and therefore the government was on notice of the Adult
Plaintiffs’
claims
and
requested
damages.
(ECF
No.
1059,
PageID.72399.)
2. Discussion
The United States submitted an affidavit with its motion. The
affidavit is from Kenneth Redden, who is the Claims Officer for the EPA
and is responsible for processing, monitoring, and resolving all
administrative claims presented to the EPA under the FTCA. Mr. Redden
attests that he has reviewed all of the claims that Plaintiffs’ counsel
submitted and, “the following paragraphs are identical for all the Claims:
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(a) ‘Appropriate Federal Agency’ (Paragraph 1); (b) ‘Marital Status’
(Paragraph 5); (c) ‘Date and Day of Accident’ (Paragraph 6); (d) ‘Times of
[A]ccident’ (Paragraph 7); (e) ‘Basis of Claim’ (Paragraph 8); and (f)
‘Witnesses’ (Paragraph 11).” (ECF No. 1027-1, PageID.70897.)
Mr. Redden also sets forth that the following portions of the SF-95s
differ
among
the
claimants:
“(a)
‘Claimant
and
Claimant’s
Representative’ (Paragraph 2); (b) ‘Type of [E]mployment’ (Paragraph 3);
(c) ‘Date(s) of Birth’ (Paragraph 4); (d) ‘Nature and [E]xtent of [E]ach
[I]njury’ (Paragraph 10); and (e) [‘][D]amages[’] (Paragraph 12).” (Id. at
PageID.70898.)
The following are Mr. Redden’s additional observations, which
correspond with the claim forms the United States attached as exhibits
to its motion. (ECF Nos. 1027-4, 1027-5, 1027-6, 1027-8, and 1027-9.)
In Paragraph 2, for “Claimant and Claimant’s
Representative,” counsel listed adults’ names. However, in
the same paragraph, the adults qualify their role as “next
friend and mother of” or “next friend and father of” the
minor child or children listed. (Id. at PageID.70898.) The
adults do not state that they are seeking relief individually
or on behalf of themselves. (See, e.g., ECF No. 1027-3,
PageID.70922, 70925.) Paragraph 2 also states that the
adults “ha[ve] authorized the attorney and law firm listed
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on the attached SF-95, Exhibit 2, to represent [her/his]
child[ren] and act on their behalf.”5 (Id.)
In paragraph 3 for “Type of Employment,” depending on
whether there is one child listed or multiple children listed
in paragraph 2, claimants state either “Minor Child – No
Employment” or “Minor Children – No Employment.” (ECF
No. 1027-1, PageID.70898.) There is no employment
information listed for any of the adults.
In paragraph 4 for “Date of Birth,” claimants set forth only
the birthdays of the minors, and not the birthdays of any of
the adults. (Id.)
In paragraph 5 for “Marital Status,” all SF-95s state
“single.” (See, e.g., ECF No. 1027-3, PageID.70922, 70925.)
In paragraph 10 for “Nature and Extent of Each Injury,”
claimants use the singular “Claimant” when a single child
is listed on the form and “Claimants” when more than one
minor child is mentioned. (ECF No. 1027-1, PageID.70898.)
In paragraph 9 for “Property Damage,” all of the forms
state “none.” And in paragraph 10 for “Nature and Extent
of Each Injury,” the forms describe physical injuries
“caused by ingesting water contaminated with lead, copper,
The parties dispute whether the word “their” in the phrase “act on their
behalf” refers to both Adult and Minor Plaintiffs listed in paragraph two, or just the
Minor Plaintiffs listed in paragraph two. (Compare ECF No. 1059, PageID.72401, n.5
(the word “their” authorizes Plaintiffs’ counsel to represent both Minor and Adult
Plaintiffs), with ECF No. 1060, PageID.72414, n.8 (“[T]he use of “their” in this context
is entirely consistent with adults’ role being limited to a “next friend” . . . .”)). Plaintiffs
consistently use the word “their” whether there is one child listed or multiple children
listed. (E.g., ECF No. 1027-3, PageID.70922, 70991.)
5
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and other toxic
PageID.70922.)
materials.”
(ECF
No.
1027-3,
In paragraph 12 for “Personal Injury Damage Claim,” Mr.
Redden notes that a pattern appears: The aggregate
amounts in each form add up to $2 million per child listed
in paragraph 2. (ECF No. 1027-1, PageID.70899.)6
In the Statement of Facts and Basis for Each Claim, which
Plaintiffs’ counsel submitted along with the SF-95 information, the
Plaintiffs set forth the events surrounding the Flint Water Crisis. (ECF
No. 1027-2, PageID.70901–70920.) They include some facts related to Jan
Burgess, a Flint homeowner and water user, who turned to the EPA for
help regarding her poor water quality. (Id. at PageID.70902.) Ms.
Burgess reported a violation to the EPA regarding the water’s color and
smell, and she stated that the water was causing fear for the people of
Flint. (Id.) The Statement of Facts also includes some facts regarding
LeAnn Walters, who called the EPA and reported that “she and her
In their complaint, Plaintiffs allege damages of $1,456,000,000.00. (ECF No.
315-1, PageID.11867, ¶ 149–150.) This amount comes to $2 million for each of the 728
Minor Plaintiffs. Assuming the Plaintiffs intended for their compensation to be $2
million per child, the amounts for damages and compensation for Adult Plaintiffs is
$0 in the Complaint.
6
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family members were becoming physically ill from exposure to the water
coming from her tap.” (Id. at PageID.70904.)
The Statement of Facts also discusses EPA employees Jennifer
Crooks, Miguel Del Toral, Susan Hedman, and Rita Blair. It also includes
Ms. Walters’ contact with Dr. Marc Edwards of Virginia Tech University
and Mr. Del Toral’s contact with Curt Guyette, an investigative reporter.
It identifies City and State officials’, along with EPA representatives’,
reactions to these contacts. It includes Dr. Mona Hanna-Attisha’s
“dramatic” position that “every child in Flint is presumed to have
ingested lead and has been harmed by this toxic metal.” (Id. at
PageID.70914.)
The Statement of Facts lists the claims against the EPA as follows.
Count 1(a): negligent performance of an undertaking regarding corrosion
control; Count 1(b): negligent performance of an undertaking regarding
timely investigations; and Count 1(c): negligent undertaking of duty to
warn the public of environmental risks to public health. (Id. at
PageID.70916–70920.)
In the portion of the Statement of Facts describing damages,
claimants state:
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As a result of the EPA’s negligence, claimants have
experienced and will continue to experience physical injury,
illness, lead poisoning, dermatological disorders, loss of hair,
gastrointestinal disorders, out of pocket economic losses;
claimants have experienced and will continue to experience
pain and suffering, emotional distress, [and] deprivation of []
quality of life.
(Id. at PageID.70920.)
Analyzing the SF-95 forms and the Statement of Facts together, the
Court concludes that there is not a question of fact regarding whether the
Adult Plaintiffs provided notice to the EPA of their individual claims
prior to filing suit. The adults’ claims fail to provide notice in the
following ways:
In paragraph 2, adults are named on the forms, but only as next
friend, mother, or father of the minor children. To put the EPA
on notice of their claims, the adults would have needed to use
language after stating their names such as “individually and as
next friend/mother/father of” their children. Indeed, this is what
they set forth in the caption of the later-filed complaint. (See Case
No. 17-10164, ECF No. 315-1.)
In paragraph 3, no adult claimants listed their employment
under the employment paragraph of the form. While it is possible
that some parents and next friends of the minor children are not
employed, it is not probable that all of them are unemployed.
Additionally, the form specifies that the “no employment”
description applies to “Minor Children” only and is silent as to
the adults.
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In paragraph 5, no adult claimants listed their marital status.
Rather, all of the claims state that the claimants’ marital status
is single. It is not likely that all of the parents and next friends of
over 700 minor children are single.
Although a smaller issue, in paragraph 10, where there is an
adult and one child listed on the form, the term “claimant” is
singular. To put the EPA on notice of their claims, at a minimum,
the adult claimants could have used the plural “claimants” on all
SF-95 forms and not just those with more than one minor child.
In paragraph 12, Mr. Redden concludes that the claimants were
seeking damages in the amount of $2 million per child. This
assertion is unopposed by Plaintiffs. No adult claimant specified
an additional amount they were seeking on their own behalf. For
example, a form with one child claimant seeks $2 million, and a
form with two children seeks $4 million. Without more, the EPA
was not on notice that the adult claimants were seeking relief for
themselves.
Plaintiffs respond that, because of the massive scale of the Flint
Water Crisis, the United States has been on notice all along that adults
in Flint, along with their children, were exposed and injured by
contaminated municipal water. They also argue that the information set
forth in their Statement of Facts provides adequate notice if the EPA was
not already on notice from the events of the crisis itself. Plaintiffs do not
cite to any case law to support the notion that a catastrophic
environmental event in a community provides adequate notice of an
20
Case 5:17-cv-10164-JEL-KGA ECF No. 1063, PageID.72441 Filed 05/04/23 Page 21 of 22
individual’s claim against the government. Moreover, the Statement of
Facts states that 30,000 people were exposed to corrosive water. (See ECF
No. 1027-2, PageID.70901.) If the Court were to find that the Statement
of Facts provided adequate notice, the EPA would then be required to
investigate the potential claims, including the degree of exposure and
type of damages suffered by every adult and child, in the City of Flint.
There is no caselaw to support this expansive theory of how adequate
notice of individual claims can be provided to a federal agency.
In sum, the claims submitted to the EPA did not provide notice to
the federal agency that the named adults were submitting claims on their
own behalf. Neither the Statement of Facts nor SF-95s, when read
separately or together, comply with the notice requirement of § 2675(a).
In reaching this conclusion, the Court is mindful that, as the Sixth
Circuit explained in Copen, the goal of § 2675 is not to place procedural
hurdles on plaintiffs. Nor is it intended to provide the government a
mechanism to win on a technicality. See Copen, 3 F.4th at 882. Rather,
the policy rationale of § 2675 is to “facilitate early dispositions of claims.”
Id. And here, the EPA did not have enough information to facilitate early
dispositions of the Adult Plaintiffs’ claims.
21
Case 5:17-cv-10164-JEL-KGA ECF No. 1063, PageID.72442 Filed 05/04/23 Page 22 of 22
IV.
CONCLUSION
For the reasons set forth above, the United States’ motion for
summary judgment is granted and the 350 Adult Plaintiffs’ claims are
dismissed without prejudice.
IT IS SO ORDERED.
Dated: May 4, 2023
Ann Arbor, Michigan
s/Judith E. Levy
JUDITH E. LEVY
United States District Judge
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or first-class U.S. mail addresses
disclosed on the Notice of Electronic Filing on May 4, 2023.
s/William Barkholz
WILLIAM BARKHOLZ
Case Manager
22
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