forty minutes for the athletes and forty minutes to be shared by the snyder at all good afternoon your owners this is assistant attorney general margaret benton housen i am here on behalf of governor gretchen whitmer former governor rick snyder and former state treasure and i have been allocated a total of sixty minutes of appellants forty minutes i would like to reserve three minutes for my rebuttal may it please the court the district court's qualified immunity and th amendment immunity ruling should be reversed for two primary reasons st the qualified immunity ruling should be reversed for the same reasons that the high ranking officials including governor snyder were dismissed in girton point of own allegations show that the information available to governor snyder and treasurer dillon was complex and contradictory choosing between difficult policy options does not show deliberate indifference or violation of a clearly established constitutional right even if those choices turn out to be gravely wrong in hindsight qualified immunity gives government officials reading room to make mistakes in judgment and nd the district court's eleven some m and immunity ruling should be reversed because unlike in the case here the district court put parameters on the alleged constitutional violation and it and held that it incurred it occurred entirely in the past therefore this case is allegations that were different in this case the same conclusion should be reached the fact is the complaint in this case shows that govern governor snyder had conflicting information about the water quality infl governor snyder is not a water treatment expert he has no expertise in led or legionella to the department heads that he would rely on for this information director wyatt and director why and have well with respect to the emergency managers who are also not experts on the science for this and the courts still allow the claims against the non expert i'm urgency managers to proceed so why in some managers that were allowed to proceed it's because of the connection to the water treatment decisions and the allegations against the emergency managers stablish they are involved in the day to day operations of a water plant that's very similar to the water engineers veolia inland and very similar to the individual and to you to regulators those are all individuals that dealt with the day to day operations unlike those individuals these high ranking officials director y and the governor they were not involved in the day to day operations plus there's additional allegations but with respect to the emergency managers such as they made statements about the water safety there is no allegation that governor snyder ever made any statements to the public about the water safety and that's actually an error in the district court's opinion on page the water into the hearing experts and the individual entity to regulators were all saying publicly that the water were safe there's numerous allegations out the complaint of them  directing this information and and and given that that these these were the experts that were at the point they were closest to the water treatment decisions and they should have had the best information so it can't be treasurer dylan and i don't want to spend too much but you can scuse me too much time on treasure dylan for the reasons that are outlined in our twenty eight dollars j letter we think that those reasons warrant his dismissal and basically in the recent brown decision the district court that's the same judge that ruled in this case decided that she made an incorrect ruling with regard to the treasurer deal line and that he should have been dismissed in this case because he left office before the waters which was finalized again it shows that his connection to the water treatment decisions was to be tenuous to show a callous disregard but even if he hadn't left before the switch the allegations do not show that dylan acted with callous disregard because he acted on the advice of others with typically treasure dylan much like governor snyder he's not a water treatment expert he's an i'm a little bit confused about the timing that you're arguing given recommend just snyder that he authorized the switch to plimer water don't don't when dealing did ultimately approve it but the allegations  before the switch but then you said that he did approve it so he approved it and then he left office is that your position right exactly he he was working with director lou wyatt at the time  says and one and paragraphs one hundred and seven and one hundred and nineteen that director wyant who is the director of the department of environmental quality at the time approves it and along with his approval he made a recommendation to go along with the switch as outlined in our twenty eight j letter it's clear based on the public records that bill and i actually left office before the water switch happened so his involvement with any water treatment closely related as we know a right is clearly established when every reasonable official what i understand what he was doing was violate that right and just to clarify real quickly we concede that this court burton held that a bodily integrity violation could occur in the context of water contamination and we're going to rely on our priest to preserve that argument so i don't want to spend too much time on that what i want to argue today is looking at if we were to agree with you about governor snyder would that mean that governor widmer would have no ongoing responsibility is is part one of the question in the nd is why what is your best so even if my daughter had a past violation that doesn't mess is that doesn't mean that ex parte young relief would be provided so no would be the answer to your st question the ongoing denied benefits and a way that violated federal law and during the course of that case the state opted to change how it would apply at law to comport with federal law and what the court held was since they were now enforcing that law in compliance with federal law they couldn't go back and award the the benefits wrongly withheld in the past affects of that previous finalization a federal law lets the harm on those pinned on those plaintiffs that did not get their benefits they still didn't have their benefits but the federal court was without authority without jurisdiction patrick cook mr cook an employee of the michigan department of environmental quality he has been dismissed in the girton case which was referenced by sister counsel and also in the brown case which i have referenced in supplemental authority submitted to your honor's we submit that in the carson way case that the circumstances of the allegations do not show th he either created or perpetuated any alleged exposure by any conscious shot being conned st the only allegations that apply to him relate to whether he somehow misled the e p a about the use or need of corrosion control chemicals quite frankly the only document that verifies his involvement in communications with the e no i don't believe so because a you have to keep it in context certainly he believed that you only needed twenty six month round of lead testing results from residential drinking water supplies but in communicating that to the particular e p a ploy here that e t a employed both before and after still held to the view that the lead  the agency was not dissuaded from that view notwithstanding cook statement so cook taking the position that he did he was forthright he told them they were using it and explained why now this is reinforced by what you can take your dish  of and that's the u s e p a s november three two thousand and fifteen member random which clearly acknowledges that the empty queues position was one that was a reasonable interpretation certainly in hindsight  has taken the position that that will no longer be a reasonable interpretation but those factors together show on implausibility that there was somehow any action by cook to mislead now the only other allegation related to cook is the fact that he signed the car met as a reviewer before the water switch occurred and quite frankly that's not tied to any allegations that cook knew about any risks posed by erred in finding that there was some conduct that was conscience shocking there is not in the case of patrick cook let me turn briefly to the other defendants let me just focus very briefly on mr well that's an interesting issue we believe that they mis understood the import of the nd circuit cases that were cited to the court and are also at issue here in the  judge moore in other words we would have to effectively as one panel overturn gorton because you're saying gordon is wrong as opposed to saying that this case the allegations in this case are any different well i think curtains drawn for several reasons among those being the one you just mentioned your honor and i suspect that your point is that was argued before it was argued and for in part i concur in that cessna and certainly that's true of the other defendants to that they made similar points with bush in prison be and schecter smith however i would invite you to really analyze it in their particular instances that the allegations are not the same as water analyst and censor what his job is he gets the data from the city and he analyzes that make sure that that it complies with the the copper and lead role now and analyzing the results that he received from the city several of the results did not comply with the copper and lead role and that's a rule that he had followed for the entire seventeen years he had worked in that department and that rule request requires that any test be a single family residence will property and the test test be taken from either a bathroom or sink in the kitchen and it cannot be taken from a business site now the tubes the two samples that he rejected did not comply one was from a business and the nd one was from the basement entry so on that should say every one but on numerous occasions samples did not comply and according to the rule they have to be rejected now in this as far as his his his bid for qualified immunity  district court judge did not really come out in her finding with any real example of any deliberate indifference were deployed city that he can get that can be ascribed to mr rosenthal  but i was i was i felt i had filed a timely i really you know i've always accept this is a timely appeal that was accepted by the court and this is the  pursuing this appeal here and i think this appeal present before the panel and respect may please this honorable court that i think this appeal is driven by a case that says we cannot ascribe the acts of individual defendants to each individual and i think that compliments that's that's hanging the metropolitan nashville public schools and i feel it really compliments what grit requires now we have five questions presented in our brief we reserve and  and i think this compliment that case complements clinton in that it requires the assessment of each individual's awareness of the substantial risk of serious injury and what we're going to see in the complaint here is that as far as johnson in glasgow though it's not alleged understanding reason inferences are approach are appropriate they must be reasonable and they must be driven by the factual allegations as presented and as what we have in this case specifically timing action and knowledge what action was taken  with what knowledge i'm looking to what is alleged in the complaint johnson has very very skeletal in the body of the complaint but there's two bookends that i think relate to date that's june of two thousand and thirteen where the city of flint the other book and in this case i think it's driven by paragraph two hundred and fifty one which states as far as march th two thousand and fifteen defendants knew that the extreme public health emergency involved lead poisoning deadly legionella bacteria and a host of other ailments allegation that action was taken by dorothy johnson after march th two thousand and fifteen so there's nothing specifically stating that he had knowledge and took action with that knowledge what we have is simply again a skeletal he did send that to the city of flint already johnson defended it said that he would follow up with them but nothing is alleging the complaint saying that he did in fact follow up with them again this information is that  michael glass gal to make this switch that was the e mail and there's an allegation pressuring someone is distinctly different than forcing the switch but moving forward everything was done with land in conjunction with the state to give one specific knowledge that the water was safe the actions in which mr glasgow took at the time of which you took them was based on the knowledge that the water was safe because of land as alleged in the complaint providing this information and empty queues approval tasked to review flint public water system including treatment process maintenance procedures and actions taken as a water treatment professionals veolia defendant had the opportunity to catch what land defendants had missed or refused to warn about again putting in the book and of time there's nothing indicating that land actually told city of flint specifically dorothy johnson or michael glasgow all the things were not safe there was no way he had based on the four corners of the complaint there's no allegation that dorothy johnson had specifically new facts which could infer the substantial risk of harm and that coupled with that he didn't for it and then acted with the indifference towards the individual right the only information what i'm driving as to what actually can contain in the complaint our land the olia and d e q all were saying this information was that i don't believe as an allegation the contrary as it's  acronym of cack timing action and knowledge clearly after the march th the day it's alleged that people knew about this prior to that there's no allegation and i just like to touch there's also indication of a press release foyer the press releas allegation the press release was actually issued there's no indication that the plaintiffs relied on that press release or that as a result of that press release they sustained injury the foyer again there's no indication that johnson no allegation that johnson knew of any delay responding to the foil would cause any harm to anyone or that johnson's alleged delay in responding to the foyer actually resulted in injury which leads us to the failure in the blatant failure and i think the requirement that causation  in actual switch whether he had the ability to make the switch or decide on the switch or in fact the opposite to stop the switch and that's the big challenge and in summation as far as causation that serves true also with mr glas from his perspective the information available to these individuals only show that the matters are safe and they cannot sustain any and there was absolutely no allegation whatsoever that these individuals johnson in glasgow knew a fact from which they could marker ok so you're the only person you're representing is there already johnson yes your honor and i took a little extra time because i think that they kind of connected and very appropriate spots as to what information was available to these individuals michael glasgow city of flint a former city of flint employee and the court is accurate that mr glasgow was originally named as a defendant in the quirin matter the district court dismissed him finding that  he had not violated any clearly established law by sending an email stating that if water was distributed from the plant the coming weeks it would be against his direction and therefore this court had not addressed his right to governmental immunity and that's what we're here to discuss claim that he was deliberately and different to their right to bodily integrity in order to prove that his actions were of the type that chocolate conscience rather he showed deference to these rights when he has the plaintiffs allege notified the d e q his regulators that the plant was not ready to begin operation and then following the switch as the plaintiffs allege mr glasgow tested for lead and copper and reported its findings them the q finally as noted earlier in argument today two samples were rejected from from what he had reported he reported those samples on the left because he reported what he received but these were not removed by mr glasgow and said they were moved at the specific direction honor i don't have an accurate count at this moment i can't say for certain i can tell you that it is many and the allegations contained in this complaint says that i believe rd or th time that it's been amended question i was just going to ask briefly it seemed to me the most concerning allegations where the ones about telling residents to flush their water to manipulate the tests i wonder if you could respond to that  that he had instructed the plaintiffs to do so but if he did you know there's already been testimony this effect but essentially it was based upon the information that he received from the  choose web site and was later amended after the date of this after everything that is being litigated here was brought to light it was based upon those specific instructions from the  thank you i guess mr young is not arguing so i mean mr camp is not arguing so we are through am i correct with the appellate correct o you know well your honor the need at the risk of being slightly humorous cancer is almost all of them i believe there are well in excess of sixty or seventy different cases most of the cases that were individual plaintiffs in which there are ten dozens if not hundreds of plaintiffs in the in the individual case so  type cases with with significant numbers of plaintiff in each individual case well i follow those cases i have a plan to handle many cases of potential class actions those potential class actions have all been consolidated into a single case which is the case with none of that that's the case here that's currently on appeal the individual cases i believe th the parties in the quarter are preparing to proceed under a bellwether trial type structure where the where a certain number of individual cases will be selected and tried to the parties trying to narrow down cases in that we can select as are reasonably typical of the cases that are that are arising out of these circumstances with the intention of those cases that those cases that are individual cases and given the extremely fact specific nature of of the claims by each individual plaintiffs we would likely oppose any such consolidation just  because for one reefing the damages element is very specific towards each potential plaintiff how one person what injuries one person may may have suffered as a result of this could be entirely stock yes thank you your honor my name is samuel bag and stuff and i represent the athletes who are the plaintiffs in the consolidated flint water cases when water class passions which is which is this case  and you know what i one little coda i just want to add to what mr what mr tim said there are a number of cases the class actions have essentially been consolidated in this action interim coach lead counsel in coordinating council ha been appointed by the district court for that there are also a number of individual cases pending in state court and so there's a lot going on i will note that the district judge did also appoint a special master for that long time ago for the purposes of exploring how to resolve this i don't have anything i can report about that but you should know that i believe the district court is trying to proceed in the diligen manner in this matter what i would like to do today you know obviously there were a number of counsel who spoke on that in the st half of the argument and i want to respond to each of their arguments i want to make one global point  st and then i think what i'll do is just respond in the order in which counsel appeared in the st half of the argument obviously unless the panel has any questions that would like to divert me  but the global point is this so it is taken it's a given here it should be taken as a given here that girton is binding law in this circuit girton involves allegations against many of the same defendants as this case involving the same factual circumstances in this case if anything the allegations in this case are stronger and more extensive than in that case and obviously the st half of the argument focused to a great extent on the defendant now back from the supreme court right yes so so exactly to score tonight on bonds the supreme court denied cert the case is back in the district court you know for for discovery and as mr kim said you know i suspect the defendants will will move for summary judgment before the same district judges before judge levy and so i i anticipate going forward that judge levy is likely to ali the procedures of these cases so it's not the same litigation over and over again but i think that you know that that's where it is and this case was on an interlocutory appeal before this court which you know could could be resolved quickly and then it would be easy to consolidate let me talk about the individuals who are different if i might so i'll start with the snyder defendants and former governor snyder i to correct one thing you're not quite correct but just further further elaboration one thing my colleague on the other side said about former governor snyder and burton it was the district court and who dismissed snyder snyder was not before this court and burton and there were different allegations against snyder in that case then in this case which is what the district court explained in its opinion from which the defendants  and i'll happily go through each of the argument each of the allegations against against former governor snyder that were present in this case which demonstrates that under the analysis set forth in the complaint against snyder states a claim for a violation of clearly established constitutional rights and but the overall point about under the analysis set forth in girton is this and i think judge murphy your honor with your question kind of it hit the nail on the head in the st half of the argument which is to say what the defendants are arguing is that snyder couldn't have been deliberately indifferent because he was relying on the advice of experts and what this court is the question of reliance on on the advice of experts is a factual question not to be determined on a motion to dismiss and certainly not to be assessed on an interlocutory appeal from a motion to dismiss when factual questions are doubl caused and extended and exacerbated the crisis and of course as our twenty ajay letter last week point out we know more now we will seek to develop that information before the trial court which underscores the wisdom of girton and suggesting we can't freeze the records as of the particular point that the complaint was filed but even based on the complaint what we know is snyder's actions here began as early as the spring of two thousand and thirteen when he specifically years from the from mid twenty's fourteen until the end of two thousand and sixteen was the was the plan and the you know there's additional information is coming out about snyder's knowledge of the risks of using the river which we want to develop below but even that  action as of as of april rd making the switch at least as of june of two thousand and thirteen of knowing that the river is going to be used as the water source but it doesn't stop there in october of and fourteen after a summer in which we had substantial indications of corrosion throughout the water system in plant because of the legionnaires outbreak because of a spike in lead poisoning because of fecal coliform in pest station that responded to by adding chlorides which led to total try helen methane contamination in the water system a clear sign of corrosion after the highly publicized decision of general motors point they make the decision that they're going to stick with providing water from the flint river for cost reasons ok so that's that's whenever snyder might have no heard from experts we know that he was hearing as of october s and snyder himself here and that is they had no line authority over the emergency manager where snyder did it the emergency manager ultimately reported to snyder and so and so you know what the court said in this court s about the about why it's in lyon is they didn't have any authority that taken the actual action here you know there might have been a failure to act on their part but they weren't responsible for providing the dirty water in the st place but snyder was because because it was early who did it obviously snyder who made the decision the st place to switch to the plant river it was snyder who made the decision in october th teen to switch back to clean lake huron water and it was snyder in october twenty four teen who dispatched his top aide to talk to the person who reported to him about switching back to detroit and they ultimately decided not to do that so i think there's a crucial difference there but it doesn't it doesn't stop in october t team that we and again there's further information that we would like to develop in the district court about snyder but but in in january of two thousand and fifteen we know snyder's meeting with other government officials about these issues as further evidence of corrosion continues to appear very publicly we know that and we specifically allege that in march of two thousand and fifteen snyder meets with his aides and asks whether they should distribute where they should distribute water filters to the people of flint ultimately decides not to do that even though by that point there is massive accumulating evidence of contamination within the water system he get advised in he gets advised to april th seen by by his chief of staff  and fifteen he continues to provide flint river water to the people when it's only when he makes the decision again it was his decision to switch to the point river in the st place it was his decision to switch back in the end it was only when he made the decision to switch back in october t supervises want lion but he had knowledge and he took action and they couldn't take the same kind of action so i think that's why and the question about reliance on experts you know i think it's a factual question whether it's deliberately indifferent to rely on what some people are saying when there's all this evidence of both risk and the actual eventual ition of that risk staring him right in the face and staring every day so this is just a mark i wonder if you could comment on another point of a district court those were the points that supported the idea that governor snyder former governor snyder was engaged in conscious shocking conduct or callous and difference but then when the district court went to the equal question of what's a rational basis for purposes of equal protection is them minimal rationality standard which requires the courts to indulge every every every possible inference in support of what the what the government after might have done including indulging post hoc rationalization but when we're talking about deliberate indifference and and conscious shocking behavior you know we're talking in particular about what the actual facts were and here here content shocking behavior we would submit and i think the district court's opinion is best read this way the conscience shocking behavior begins way before the switch back in the delay in calling the state of emergency and the delay in calling  seaman underscored that behavior may be really important actually for the ex parte young claim with want to get to but it has a very different role here than it might under the equal protection claim counseling brown we did not have an opportunity to brief the issue in brown and so you know we need to have that opportunity i will say the fact that dillon wasn't the treasurer anymore at the time that the switch was on water quality grounds but also on cost grounds but again i and that had that decision not been made we would not be here today so i think whether or not dillon was there in april th teen is less relevant and we would like to make that case to the district court particularly in light of the further information of that deal and that's also emerged through the attorney general's own investigative files and that's criminal action which we would like to develop further but you know for this court's purposes i think we would agree with  that i think that my colleague who has bet in the house and might be confusing a fact question and a lot of question here has been hasn't says correctly the question is was is there a fair warning girton establishes their spare warning that deliberately difference in this context is unconstitutional the question is do the allegations make out a claim of deliberate indifference i just went through the allegations against snyder we believe the talk back to a question whether those allegations or snyder snyder's response in briefing and in argument that he was relying on experts whether which of those try or fashion believe and they should be tested in discovery as to ex parte young so a couple of points st of all i heard my colleague acknowledged that the ex parte young question is disconnected from whether there's a claim against snyder him sell it personal half the claim against either and i want to underscore that you know and just make the argument affirmatively in response to the question that judge moore had asked that there that there is no connect no particular to action between them ex parte young is the vehicle by which  individuals who have been harmed by the state can force the state going forward to do things to fix the harm and put them in the position they would rightfully have been and absent the action taken by absent the constitutional violation and so here whether snyder personally committed the constitutional violation or the state committed the constitutional violation ex parte young is the vehicle to get a change in the future that fixes the problem and i want to say two things about ex parte young on the merits one is this case is exactly millikan too if you look at the very st paragraph of chief justice burger's opinion for the court in millikan to what the court says is the question present is whether a district court can as part of a desegregation agree order compensatory or remedial educational programs for schoolchildren who have been subjected to past acts of these are segregation ok past acts and these are segregation so the court in milliken in the very st paragraph acknowledged that this was about providing a prospect of remedy to eliminate the ongoing effects of a past by a late show of the same language and it's the exactly same language in the request for relief and the reason why it's exactly the same language in the request for relief is because this case in replete water cases case folded in th that they were owed in the past is not something that is consistent with the th amendment it's not prospective that the line of taking money from the state's pocket and giving it to the injured directly versus requiring the state to do and perhaps pay for some action going forward that's going to fix the underlying problem that's the law in millikan too that's a line this court applied in boulder and the the line this court applied in gary b just i just stated so as to the claims against snyder in this individual capacity and that's the claims against the sitting governor in her official capacity we believe that the claims should be upheld the judgment should be heard of the judgment as to bill cook there is what my colleague on the other side arguing for cook says is well he acknowledged that it was not using corrosion control and that's correct two whether that was you know a misinterpretation that was that that was actually a misinterpretation or whether was just misleading is really a matter of fact to be determined by a trier of fact after an opportunity to test cook assertion that he was acting in pure good faith but that's not the only thing that made in this leading the other thing that made it misleading is that cook's assertion that they didn't need to use corrosion control was based on lead tests that in the city of under counted the amount of lead because the risk lushness judge murphy pointed out before before collecting the samples and also because they didn't collect lead from the highest highest risk places and so again you know these are m factual matters and that's exactly why this should be determined after discovery and not on the basis of a motion to dismiss as for rosenthal everything i heard my colleague on the other side say about rosenthal was an argument about the facts it was an argument about it was an argument about whether rosenthal was just doing his job or not and you know you heard a lot about well he just removed high lead levels because they should have been removed because they were in violation of protocol that they were they were from areas that should be tested so here's what we would seek to prove below and which is which which is a different spin on the story and w believe is correct the truth to spend on the story there were what this is what the city of flint did is it collected lead from seventy one or collected lead readings from seventy one different locations in the city they were supposed to have one hundred they only collected seventy one when bush sent prince b and rosenthal were presented by glasgow with those with those lead read what they did and once they looked at those lead readings the seventy one dollars locations aggregated together put the city over that is failing squeaked under the actual level for lead now the crucial point here is that you know whether or not those those two readings should have been taken because they were taken from the correct places rosen's and bush in prison he never under any effort to go through the rest of the seventy one to see whether those were taken from improper places and of course if they knocked out some that were at the bottom that would that would raise that would raise the risk but  raises the reading but in any event these are all factual issues that need to be determined before trial or fact as as rosenthal point that is result counsel points out he has been deposed about this in actions proceeding against other defendants there's really no reason not to let the district judge actually assess the factual arguments here let me talk about the two twin defendants who were not before the court in the girton case so darty johnson utilities supervisor for the city of flat this is not a case as my colleague argues of guilt by association there are two specific allegations with regard to johnson both of which are inconsistent with the idea that he was merely relying on land or or otherwise you know he didn't know what the nature of the problem was so one specific allegation against against johnson which we talk about of page eleven of our brief we cite the relevant the relevant complaint pages in our brief page eleven is that as the time for the switch was approaching in april twenty four to it was glasgow who i'll talk about in a nd in glasgow who was sounding the alarm bell saying our water treatment plant isn't ready and remember when when land had been involved in the past when it went when the engineering company dependents had been involved in the past what they said was yeah you could use the point river as a water source but only if you make sixty nine million dollars worth of improvements to the water treatment plant and what glasgow was telling his supervisors concluding johnson including croft including early was this plant isn't ready and if this happens he tells the m d two officials if this happens next week it's going to be over my objections with management have have their own agenda and glasgow later testifies in separate proceedings than the is that that johnson and crossed specifically pressured to make the switch even though he was specifically advising them that the plant wasn't ready that the that to the extent they were relying on the engineering company defended who said it would be ok to use flint river water that was based on a particular condition that was not being satisfied and so when johnson in the face of glasgow warning him that actually you can't rely on the engineering company but then this now says i don't care do it anyway and of course johnson is a supervisor glasgow so johnson has the power over him this is an action that played a key role in causing the crisis and the nd independent allegation against against johnson which again is not was some connection to the change in water source it was it was johnson who sat on a four year request and said he would get to it and ultimately didn't get to it now i heard johnson's attorney say well there's no reason to think that he  knew that there was a problem into laying on this request that's exactly the kind of actual argument he should present to a trier of fact after it has an opportunity to be tested in discovery it's not the kind of argument that should be made it's not the kind of thing that should be assert the defendants make various causation arguments but of course all these causation arguments are as well factual and you know this was this was a case this was a water crisis that was caused and extended and exacerbated due to the actions of multiple individuals we can point to knowledge and culpable actions as to each of the dependent sure here which we believe we're required to do under girton and we have done but even girton itself recognized that you don't have to for one hundred and eighty three purposes show that any one defendant was was the reason why why the plane of class got injured because of course the court upheld the claims against multiple of the defendants who are before this court today even though you know when bush lied to the e p a in february of twenty of two thousand and fifteen that extended the crisis but there were other things that extended that later these are really questions about how to a so and so with respect to glasgow i want to make clear that we do not allege and we do not argue that glasgow's actions in april of twenty four teen at the moment the switch were deliberately indifference or deliberately indifferent or conscience shocking and in fact as your honor points out and as alaska's attorney points out throughout the course of the crisis from april t  teen for many months you see glasgow actually trying hard to address the problem or to at least call people's attention to the problem so you know our point our concern about glasgow is the reason why the court to go to glasgow who is the person responsible for water quality for the city of flint at the pool at the water treatment plant so he doesn't work for them and they direct him to remove the highest lead levels and i've just talked about th complicated facts there that we need to work out in the district court but because glasgow unlike when he was an april th teen pushing back against his superiors and his superiors said do it anyway because glasgow did not work for any of the people at m d q his going along with this in going along with changing lead levels to suppress to the public and to and to regulators what the nature of the lead problem  that action was deliberately indifferent and this court has established that when there's time to deliberate and he certainly knew of the risks we know he knew of the wrist so the paragraph two hundred and seventy three of the complaint it shows that he that he did  to to the people who didn't actually supervise him at that point and it paragraph two hundred and sixty seven of the complaint that shows that miles go specifically knew of the risks that were occurring to the people of flint at that point because of the potential of lead in the water the likelihood of lead in the water that was discovered precisely because he said let's test me and walter's house and found a lead level of over one hundred dollars parts per one billion in that house even though you know the actual level for lead is fifteen part billion so so that's the basis on which we seek to hold glasgow liable i you know i would agree for a portion of the liability here you know that he's in a different place than the other defendants but he did take action knowing full well of the risks and he took action that was the fact that he wants to make arguments about why he couldn't help but go along then those are arguments to be made before trier of fact and to be tested in discovery and we'd be happy to proceed on that and obviously accept the resolution whichever way it goes and those are essentially your honor the points that i wanted to make about the specific defendants before the court i do want to allegations are against the m d q defendant here and i would encourage you to look carefully at that because what you'll find as we detail in our brief is that the allegations against the and the defendants are either the same as in girton the allegations against stronger for example with regard to defended schechter smith where we specifically had allegations that schecter played a key role at two crucial moments in the crisis  st in securing the administrative consent order that purported to require the city to use flint river water and secondly in the spring of two thousand and fifteen and covering up the connection between the water source which and the legionell systems sends an internal e mail to her staff which says you know actually the change in the water source might have created the conditions for the spread of legionella she had already internal e mails saying i think there might be corrosion all across the flint water system and yet she approved her office sending out a response to the genesee county health department that said that there's no connection between between the change in the flint river the flippers change the point river the plant water treatment plant and the legionella outbreak and this is not what the court relied on and it's stronger and i think as you go through we have stronger and stronger allegations against bush as well in paragraph two hundred and seventy three where he directed removing the highest lead levels from water quality reports that was not that was not information on which the court relied in girton so so yes i would you know the complaint in girton i think was eighty nine pages the complaint here is over two hundred so obviously we're not going to get to every little detail in the in our brief but i think if you do this i think you'll see that in county sacramento versus lewis which is when extended opportunities to do better are paired with a protracted failure even to care indifference is truly shocking this was conscious shako behavior we should have an opportunity to develop our claims in the district court have been tested by discovery and then assess at the next stage of the litigation and not squelch here on a motion to dismiss if the panel has further questions i'm happy to entertain them otherwise i'm also happy to submit on that ar any further questions from the judges thank you very much thank you we have a couple of bottles snyder governor snyder should be held liable because he had authority over the emergency managers but we know that there is no response yet superiority liability under one thousand nine hundred and eighty three so snyder can't be held liable for the why in line in that opinion he cannot be held liable for the conduct of others mr bagus as also stressed that he wants more factual the a development here to determine what snyder knew and when we are accepting the fact as alleged that snyder was aware of the issues with the water that his staff was discussing and worried about what was going on in flint we are not disputing that what we're saying official would know what they were doing would violate the right so he would have had to know the detour guiding the input of the experts close east to the issues so it would be the only way to avoid constitutional liability  simply can't be correct so if you put the allegations together and that's why we're saying this isn't a substance it really different than it was in girton they also discussed this competing information that was out there so that just shows that sometimes these high ranking officials are put in these impossible situations where they have to make a choice and what mr baggins this is really asking you to do when he's saying let's do some more factual development is to go back and nd guess with the benefit of hindsight whether the former governor made a good decision or not but that is not the purpose of substantive due process to fix  bad decisions and just quickly he focused on a specific word in the midst milken decision about past but he ignores what actually happened in milliken and milliken there was an order entered to stop to  segregation that was ongoing in the detroit public schools there was an ongoing violation of the law so what the court has held is when you enter that order you can also address the past affects from that violation because it was ongoing there are a lot of past unconstitutional conduct out there that have ongoing effect today the fact is with out an ongoing violation as of factual attention here i believe that on the basis of what is alleged in the cards in case it is not sufficient to show conscious shocking conduct the most that  a difference in interpretation but by citing the actual lead results that were obtained informant those same allegations were actually made in the girton case and were not found by that district court judge has made the which is more than just good say that was deemed to be a reasonable interpretation and further by the fact that the he cites the lead results those lead results were actually included in the girton case were not found to be sufficient for the same reasons here the district court should have found and we're requesting this court to reverse the conclusion that he engaged in conscious shocking cond up for the remainder i  procedure and what the plants are attempting to do with circumvent the procedural requirement that you have a properly put complaint that sufficiently lays out a right to relief that's beyond just possibility and causation is not yes there's a question of fact and causation but you have to initially plead it as an element of the claim and they blatantly failed to do that that's a challenge that's defeated in procedural grounds a question of law there the plaintiffs attempting that that's a paragraph which glasgow sounding the bell sounding the bell to m d q there's no allegation the sound of the bell to the city of flint or that and that specifically is what he sounding develop regarding with staffing issues thank you thank you i believe that we have heard from everybody in full and if that is the case not hearing any objection to that statement from any any