482 F.Supp.3d 601
E.D. Mich.2020Background
- Flint switched water source to Flint River in April 2014 without corrosion control; residents experienced bacteria and elevated lead levels (e.g., Walters’ tap 104 ppb vs 15 ppb limit).
- EPA Region 5 staff investigated, conducted sampling, warned MDEQ and offered technical assistance in 2015 but did not issue an emergency order until January 21, 2016.
- Internal EPA communications (e.g., Del Toral reports) indicated knowledge of noncompliance and that Flint’s sampling practices (pre-flushing, excluding high-lead samples) understated lead exposure.
- EPA Office of Inspector General concluded Region 5 had authority and information to issue a Section 1431 emergency order as early as June 2015.
- Plaintiffs sued under the Federal Tort Claims Act alleging EPA negligence (invoking Restatement §324A Good Samaritan theory); United States moved to dismiss asserting lack of private-person analog liability, the FTCA discretionary-function exception, and the misrepresentation exception.
- Court denied the Government’s motion, holding plaintiffs plausibly stated Michigan-law claims under §324A and that FTCA exceptions did not apply.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs meet FTCA private-liability requirement (Mich. law) via Good Samaritan (§324A) | EPA undertook services (oversight, sampling, citizen responses), was negligent, and its acts/omissions increased risk, substituted for MDEQ duties, and induced reliance | Government: EPA actions were regulatory/monitoring and thus not an actionable undertaking; plaintiffs merely allege inaction | Held: Plaintiffs plausibly alleged an undertaking, negligence, increased risk, performance of State duties, and detrimental reliance — §324A claim survives facial attack |
| Whether discretionary-function exception bars claims (prong 1: was conduct discretionary?) | Section 1414 imposes mandatory duties ("shall" issue order or sue after 30 days); Section 1431 and some responses were discretionary but statutory triggers may have occurred | Government: EPA choices under SDWA (whether/when/how to act, resource allocation, responses) are discretionary and shielded | Held: Section 1414 (post-notice 30-day response) imposes mandatory duties if noncompliance was found; thus discretionary-function does not shield EPA for alleged failure to comply with §1414; Section 1431 is discretionary but not necessarily protected under prong 2 here |
| Whether discretionary-function exception applies (prong 2: policy-susceptible?) | EPA’s scientific/professional judgments about safety and oversight are not the sort of policy balancing the exception protects; failure to act amid blatant hazard is not protected | Government: decisions implicate policy of cooperative federalism, resource allocation, and relationships with states | Held: Many challenged acts (failure to enforce under §1414, failure to warn and negligent responses to complaints) are not the kind of policy-driven judgments the exception was designed to shield; genuine fact issues preclude dismissal |
| Whether FTCA misrepresentation exception (§2680(h)) bars reliance-based claims | Plaintiffs: alleged negligent oversight and inspections; any EPA statements are not commercial/financial and are not essential to negligence claim | Government: claims premised on reliance on EPA statements are barred by misrepresentation exception | Held: Exception inapplicable where misstatements are not commercial/financial and are not essential to the negligence claim; plaintiffs’ negligence theory survives |
Key Cases Cited
- United States v. Gaubert, 499 U.S. 315 (1991) (two-step test for FTCA discretionary-function exception)
- Berkovitz v. United States, 486 U.S. 531 (1988) (discretionary-function framework and role of mandatory directives)
- Myers v. United States, 17 F.3d 890 (6th Cir. 1994) (Good Samaritan analysis and actor/monitor distinction)
- Indian Towing Co. v. United States, 350 U.S. 61 (1955) (once government undertakes a service it must perform without negligence)
- Heckler v. Chaney, 470 U.S. 821 (1985) (presumption of unreviewability for agency enforcement declinations, rebuttable by statutory guidelines)
- Block v. Neal, 460 U.S. 289 (1983) (scope of FTCA misrepresentation exception and commercial-character focus)
- United States v. Neustadt, 366 U.S. 696 (1961) (FTCA misrepresentation exception covers negligent and willful misrepresentations)
- A.O. Smith Corp. v. United States, 774 F.3d 359 (6th Cir. 2014) (discretionary-function application and presumption on prong two)
- Burgess v. United States, 375 F. Supp. 3d 796 (E.D. Mich. 2019) (companion Flint Water opinion adopting factual record and assessing FTCA defenses)
- Lockett v. United States, 938 F.2d 630 (6th Cir. 1991) (EPA prioritization and resource-allocation decisions may be discretionary)