United States v. Tarkowski, John ( 2001 )


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  • In the
    United States Court of Appeals
    For the Seventh Circuit
    Nos. 00-2393 & 00-2473
    United States of America,
    Plaintiff-Appellant, Cross-Appellee,
    v.
    John Tarkowski,
    Defendant-Appellee, Cross-Appellant.
    Appeals from the United States District Court
    for the Northern District of Illinois, Eastern
    Division.
    No. 99 C 7308--Matthew F. Kennelly, Judge.
    Argued February 14, 2001--Decided April 18,
    2001
    Before Posner, Coffey, and Ripple, Circuit
    Judges.
    Posner, Circuit Judge. The government
    appeals from the dismissal of a suit by
    which the EPA sought access to the
    property of John Tarkowski, pursuant to
    section 104(e) of the Superfund statute
    (Comprehensive Environmental Response,
    Compensation, and Liability Act of 1980
    (CERCLA)), 42 U.S.C. sec. 9604(e), for
    the purpose of "remediation,"
    specifically, of investigating possible
    environmental hazards and removing
    quantities of Mr. Tarkowski’s personal
    property and other materials. The judge
    concluded that the action for which the
    EPA sought authorization would be
    arbitrary and capricious in the
    circumstances presented by this case.
    Mr. Tarkowski is an elderly, impecunious
    man who lives on a 16-acre tract in what
    was once a rural backwater in Wauconda,
    Illinois but is now an affluent suburb.
    He may be land rich as a result of the
    development of the area that surrounds
    his 16-acre tract, but this is unclear;
    he may not actually own the tract,
    although his right to its possession is
    not in doubt.
    He built the house in which he lives out
    of surplus materials, and his yard is
    full of what his upscale neighbors regard
    as junk, such as wooden pallets that he
    burns for heat because he can’t afford
    gas, tires that he uses to build
    retaining walls, drums for building a
    culvert for water runoff, barrels,
    batteries, paint cans, and other
    construction materials and supplies, some
    of them the detritus of a failed project
    to construct a subdivision on the tract;
    before being disabled by injuries many
    years ago, Tarkowski was a building
    contractor.
    Tarkowski’s neighbors have been
    harassing him for many years. In 1978 a
    letter was left in his mailbox which says
    "Hey polock [sic] we don’t want any white
    trash or white niggers here. We want you
    out--Now." The next year the neighbors
    complained about the condition of
    Tarkowski’s property to the EPA, which
    the same year made a preliminary
    assessment and concluded that the
    property posed no environmental hazard
    despite its unsightliness. In 1995 the
    EPA rated the property a zero on its
    hazard rating scale. In 1997 state
    authorities at the EPA’s request took and
    examined various soil and water samples
    on the property. Tests on the samples
    received traces of lead, but only in an
    area in which Tarkowski does some welding
    for personal, noncommercial use. Other
    metals, and pesticides, revealed by the
    tests were likewise consistent with
    household use; and other chemicals that
    the tests revealed could have come from
    petroleum products, which are exempt
    under section 101(14) of CERCLA, 42
    U.S.C. sec. 9601(14). In short, there was
    no evidence of legally significant
    contamination.
    The following year, however, the EPA,
    pursuant to an access order similar to
    the one sought in this case, took
    additional samples on Tarkowski’s
    property, some from the soil, some from
    drums, and one from a piece of pipe
    insulation. Only trace amounts of
    contaminants were found, and there was no
    indication that they exceeded the levels
    of these contaminants found in the
    surrounding properties none of which was
    deemed to pose any kind of environmental
    hazard or to require or justify remedial
    efforts. Nevertheless the EPA brought
    this suit, claiming without furnishing
    any factual basis for the claim that "the
    environmental contamination at the Site
    [Tarkowski’s property] presents an
    imminent and substantial endangerment to
    the public health, welfare and the
    environment arising from the actual
    release or threat of release of hazardous
    substances from the Site." The relief
    sought was an order forbidding Tarkowski
    to prevent the EPA from going onto his
    land in order to fence it (apparently to
    keep children from straying onto it),
    conduct additional tests, install
    groundwatermonitoring wells, dig up the
    property looking for any buried drums
    and, if they were found, remove them,
    remove contaminated soil, and cart away a
    variety of objects lying on the property,
    including drums and other
    containers,batteries, and materials
    containing asbestos, all these objects
    being Tarkowski’s personal property. The
    EPA is thus seeking the access order for
    a mixture of investigative and remedial
    purposes; we need not consider whether,
    if only the former were sought, the EPA
    has made a sufficient showing to justify
    such an order, as in United States v.
    Fisher, 
    864 F.2d 434
    , 438 (7th Cir.
    1988)--which was, however, a much
    stronger case for such an order than this
    one is. But we will have to consider
    whether a request for an order limited to
    remediation would have a different status
    in the district court.
    The EPA takes the extreme position that,
    provided it has probable cause to believe
    that there is even a thimbleful of a
    hazardous substance spilled in a person’s
    yard, or we suppose even a drop, it has
    an absolute right to an access order
    regardless of the action it proposes to
    take once it gains that access, such as
    excavating the entire yard and removing
    the soil to a depth of ten feet, thus
    rendering the property wholly useless to
    its owner. The court not only must, the
    EPA argues, issue the order no questions
    asked; the court cannot limit the extent
    of the remedial measures that the EPA can
    take once it gains access. All the EPA
    will concede is that if it wanted to do
    the excavation at 3 a.m., or wanted to
    use a stick of dynamite to dislodge the
    topsoil, the court might refuse to order
    access. Similarly, while the agency
    claims the absolute right to an access
    order if it learns that a single flake of
    asbestos is lying on the floor of
    Tarkowski’s house, it acknowledges that
    the court could forbid it to use a
    battering ram to gain access to the house
    for purposes of removing the flake.
    The EPA makes no pretense that the
    position it advocates serves a public
    purpose, strikes a reasonable balance be
    tween property rights and community
    rights, rationally advances the agency’s
    mission, or even comports with the
    limitations that the Constitution has
    been interpreted to place on federal
    regulation of purely local activities,
    not to mention the limitations that the
    Fourth Amendment places on searches and
    seizures. Access orders are orders to
    seize as well as search, because of the
    control that the agency exerts over the
    property even when it is just doing test
    borings and other investigative work.
    That such orders must comply with the
    Fourth Amendment is apparent from
    Marshall v. Barlow’s, Inc., 
    436 U.S. 307
    (1978). Rather, the EPA defends its
    position as ineluctably compelled by
    statutory language that we have now to
    examine in order to determine whether the
    case can be decided without our having to
    reach any constitutional issues.
    Sections 104(e)(1), (3), and (4) of
    CERCLA, 42 U.S.C. sec.sec. 9604(e)(1),
    (3), (4), authorize the EPA to go upon a
    property to inspect or to obtain samples
    for testing (sec. 104(e)(4)) or "to
    effectuate a response action" (sec.
    104(e)(3)(D)), "if there is a reasonable
    basis to believe there may be a release
    or threat of release of a hazardous
    substance or pollutant or contaminant."
    sec. 104(e)(1). Section 104(e)(5)(B)(i)
    provides that if consent to the entry is
    denied, the government may obtain a
    judicial order preventing interference
    with the entry (what we are calling an
    access order) "unless under the
    circumstances of the case the demand for
    entry or inspection is arbitrary and
    capricious, an abuse of discretion, or
    otherwise not in accordance with law."
    The requirement of reasonable basis is
    easily satisfied, and is satisfied here,
    as it would be in our thimbleful and
    flake examples, as there is nothing in
    section 104(e)(1) about magnitude. But
    this makes it all the more important to
    consider whether the agency’s proposed
    action is unreasonable (arbitrary and
    capricious). The EPA may be reasonable,
    though we doubt it, in wanting to conduct
    additional tests on Tarkowski’s property-
    -that would depend in part on how
    disruptive the tests would be to
    Tarkowski’s use of the property. Cf.
    United States v. 
    Fisher, supra
    , 864 F.2d
    at 438. But given what the agency now
    knows or has reason to know, which is
    that the property although unsightly is
    not a site or source of even a slight
    environmental hazard, for it to want to
    go ahead and rip up the property without
    completing its inspection bespeaks a
    precipitance that would be warranted only
    by emergency conditions. The EPA assures
    us that it won’t undertake any drastic
    remedial action until it completes new
    tests. But, if so, why is it not seeking
    merely an order to allow it to go onto
    the property to conduct tests that would
    not unreasonably interfere with
    Tarkowski’s use and enjoyment of his
    property? The agency is adamant in the
    assertion of a right to carry out
    remedial action whatever the test results
    are, or indeed before completing or for
    that matter beginning any further tests.
    We do not know whether Tarkowski’s angry
    neighbors exert a malign influence over
    the local office of the EPA, but it is to
    protect citizens against arbitrary and
    over-reaching actions by government
    bureaucrats that courts are empowered to
    prevent arbitrary and capricious
    interferences with property rights. It is
    unreasonable for the EPA to insist on a
    judicial carte blanche to embark on
    drastic remedial action in advance of
    obtaining any rational basis for
    believing there is any danger to the
    environment that would warrant such
    action.
    Against all this the EPA directs us to
    section 113(h) of CERCLA, which provides
    that "no Federal court shall have
    jurisdiction . . . to review any
    challenges to removal or remedial action
    selected under section [104]" except in a
    suit under section 310, 42 U.S.C. sec.
    9659, complaining that "the removal or
    remedial action taken under section" 104
    "was in violation of any requirement" of
    the statute (emphasis added). Although
    section 310 does not read like a
    provision designed for the benefit of
    people subjected to such action, but
    rather seems to be a provision designed
    for people who think the remedial action
    didn’t go far enough (it is captioned
    "citizens suits"), and it is in fact
    usually invoked by such people, see,
    e.g., Schalk v. Reilly, 
    900 F.2d 1091
    ,
    1094-95 (7th Cir. 1990); Clinton County
    Comm’rs v. EPA, 
    116 F.3d 1018
    , 1024-25
    (3d Cir. 1997) (en banc); Conservation
    Law Foundation of New England, Inc. v.
    Reilly, 
    950 F.2d 38
    , 40 (1st Cir. 1991),
    it has been interpreted to allow a person
    facing potential liability under CERCLA
    to obtain an injunction compelling a
    person responsible for the pollution to
    comply with the statute. AM Int’l, Inc.
    v. Datacard Corp., DBS, 
    106 F.3d 1342
    ,
    1349 (7th Cir. 1997); Petrovic v. Amoco
    Oil Co., 
    200 F.3d 1140
    , 1153 (8th Cir.
    1999). But that is a remedy of no utility
    to Tarkowski. Section 310, moreover, does
    not authorize monetary relief, and while
    Tarkowski might have a defense in the
    unlikely event that the EPA sought under
    42 U.S.C. sec. 9607 to recover the costs
    of its remedial efforts from him,
    Dickerson v. EPA, 
    834 F.2d 974
    , 978 (11th
    Cir. 1987), that would give him no relief
    from the costs imposed on him by the
    destruction of his property. His only
    recourse would be a suit against the
    United States under the Tucker Act to
    enforce his rights under the just-
    compensation clause of the Fifth
    Amendment. See United States v. 
    Fisher, supra
    , 864 F.2d at 438-39. So section
    113(h)’s exception for suits under
    section 310 is inapplicable--and anyway
    Tarkowski hasn’t brought a suit; nor is
    he basing a defense against the EPA’s
    suit on anything that can be found in
    section 310.
    The EPA argues that section 113(h) is so
    sweeping, once the section 310 exception
    is put to one side, that it withdraws
    from the district court the power in
    considering a request for an access order
    to weigh the reasonableness of the
    removal or remedial action proposed by
    the agency. The argument if accepted
    would reduce the court’s power to
    disallow access as arbitrary or
    capricious to derisory dimensions, just
    as the agency argues. Tarkowski would be
    left with only his Tucker Act remedy
    unless the agency tried to shift the
    expense of remediation to him. In effect
    the agency is claiming the authority to
    undertake warrantless searches and
    seizures, of a peculiarly destructive
    sort, on residential property despite the
    absence of any exigent circumstances. It
    is unlikely, even apart from
    constitutional considerations, that
    Congress intended to confer such
    authority on the EPA.
    What is true is that if all the agency
    were seeking was a remediation order,
    Tarkowski could not challenge it. But
    that is not all that the agency is
    seeking. It is seeking an access order,
    without which it cannot execute remedial
    measures on Tarkowski’s property. And
    when an access order is sought, judicial
    jurisdiction clicks in; the arbitrary and
    capricious standard clicks in. The right
    of judicial review of agency action that
    is expressly conferred by section
    104(e)(5) can thus be preserved without
    impairment of the objectives of section
    113(h) by distinguishing between cases
    in which the agency either is rightfully
    on the land to perform remedial measures
    or does not have to be on the land
    because the order is directed to the
    landowner--in either of which cases the
    reasonableness of the measures cannot be
    judicially reviewed until the remediation
    is completed--and cases in which the
    agency must get access to the land to
    execute remediation. The latter case,
    which is our case, is rare. Remedial
    measures normally are undertaken in
    circumstances in which there is no doubt
    that the entity undertaking the measures
    has a right to be on the land. Normally,
    indeed, the measures are to be undertaken
    by the landowner himself, and section
    113(h) steps in to prevent someone else,
    who might as a party also responsible for
    the contamination of the property be
    forced to contribute to the costs of the
    measures, see section 113(f)(1);
    NutraSweet Co. v. X-L Engineering Co.,
    
    227 F.3d 776
    , 784 (7th Cir. 2000), or
    might as a concerned citizen be
    dissatisfied with the measures, from
    bringing suit to enjoin them, thus
    delaying the cleanup. Schalk v. 
    Reilly, supra
    , 900 F.2d at 1095; North Shore Gas
    Co. v. EPA, 
    930 F.2d 1239
    , 1244 (7th Cir.
    1991); McClellan Ecological Seepage
    Situation v. Perry, 
    47 F.3d 325
    , 328-29
    (9th Cir. 1995); Voluntary Purchasing
    Groups, Inc. v. Reilly, 
    889 F.2d 1380
    ,
    1388-90 (5th Cir. 1989). Evidently the
    EPA does not trust Tarkowski to undertake
    whatever remedial measures it might
    order, and therefore it wants to
    undertake them itself; and to be able to
    do that it needs an access order.
    So this case is unusual; what makes it
    unprecedented (for there is no previous
    reported case like it) is that the
    tension between sections 104(e)(5) and
    113(h) that we are trying to dissolve is
    acute only when the agency, which usually
    has better sense, claims a right to
    undertake remedial efforts before
    determining whether there is a hazard
    that justifies the efforts. The usual
    purpose of an access order is to enable
    the agency to conduct on-site tests of
    soil or water, and off-site tests of
    samples of oil and water taken from the
    site or the adjacent area, to determine
    whether remedial measures are necessary.
    If the tests indicate the need for such
    measures, the agency orders them to be
    undertaken. 42 U.S.C. sec. 9604(a). That
    order cannot be challenged, as section
    113(h) makes clear. (Likewise emergency
    orders for remediation issued under 42
    U.S.C. sec. 9606(a), see In re CMC
    Heartland Partners, 
    966 F.2d 1143
    , 1148
    (7th Cir. 1992); Kelley v. EPA, 
    15 F.3d 1100
    , 1103 (D.C. Cir. 1994), but no such
    order was issued here.) The EPA proceeded
    differently here, invoking the provision
    of the statute that authorizes entry "to
    effectuate a response action." sec.
    104(e)(3)(D). By proceeding along this
    route, the agency placed itself squarely
    in the sights of section 104(e)(5). If
    the agency’s very ground for going on the
    property is to undertake remedial
    measures, the court cannot perform its
    duty of determining whether the agency’s
    proposed action is arbitrary or
    capricious without considering whether
    the measures proposed are a reasonable
    basis for authorizing what would
    otherwise be a trespass. We can find
    nothing in the background or purpose of
    section 113(h) to indicate that the court
    lacks this power, without which all
    manner of unconstitutional conduct by the
    EPA would be beyond the reach of judicial
    prevention.
    We repeat that the agency is entitled to
    go onto Tarkowski’s property for the
    purpose of conducting (if reasonable to
    do) additional tests, and if on the basis
    of the test results it issues a
    remediation order under section 104(a),
    section 113(h) will prevent Tarkowski
    from obtaining immediate review of the
    order. But instead the agency has chosen
    a route, short-circuiting the
    determination whether the property poses
    an environmental hazard, that deprives it
    of its immunity from judicial review.
    Now it is true that in the case just
    put, where the agency first obtains an
    access order for the purpose of testing,
    and then, on the basis of what the tests
    show, issues a remediation order, the
    agency would need to obtain a second
    access order if the property owner
    refused to permit the agency to go onto
    his property to execute the order,
    assuming it was the unusual case in which
    the agency had decided to conduct the
    cleanup itself rather than order the
    landowner to do so. The remediation order
    itself would not be reviewable, but, as
    the agency itself concedes, the time and
    manner of its execution would be. If the
    agency wanted to avoid having to go back
    to court for a second order, it could in
    its first order specify the remedial
    actions that it would take if the tests
    that it wanted to conduct showed
    specified levels and types of
    contamination. If the plan set forth for
    testing followed by remediation was a
    reasonable one, the court would issue the
    access order; "arbitrary and capricious"
    review is deferential. In this case the
    agency sought a blank check from the
    court. It sought authorization to go onto
    Tarkowski’s property and destroy the
    value of the property regardless of how
    trivial the contamination that its tests
    disclosed.
    If section 113(h) has the sweep that the
    agency contends it has, hereafter the EPA
    will be able to nullify judicial control
    of access orders by including in every
    application for such an order the
    statement that while its purpose is
    merely to test, it reserves the right to
    take unspecified remedial actions on the
    basis of the test results. Mere mention
    of remediation would on this view compel
    the court to issue the access order no
    questions asked. That would spell the
    abolition of the right of judicial review
    expressly granted by section 104(e)(5).
    It would give the agency in effect an
    unlimited power of warrantless search and
    seizure, something that the statute does
    not contemplate and that the Fourth
    Amendment would almost certainly forbid.
    As a procedural detail, we note that
    Tarkowski filed a cross-appeal, not
    because he wants a different judgment,
    which is the only basis on which a cross-
    appeal is either necessary or permitted,
    e.g., Massachusetts Mutual Life Ins. Co.
    v. Ludwig, 
    426 U.S. 479
    (1976) (per
    curiam); Froebel v. Meyer, 
    217 F.3d 928
    ,
    933 (7th Cir. 2000); Stone Container
    Corp. v. Hartford Steam Boiler Inspection
    & Ins. Co., 
    165 F.3d 1157
    , 1159 (7th Cir.
    1999); Coe v. County of Cook, 
    162 F.3d 491
    , 497 (7th Cir. 1998); Remus Joint
    Venture v. McAnally, 
    116 F.3d 180
    , 183 n.
    4 (6th Cir. 1997); 15A Charles Alan
    Wright, Arthur R. Miller, and Edward H.
    Cooper, Federal Practice and Procedure,
    sec. 3904, pp. 199-205 (1992), but
    because he wishes to urge grounds for
    affirmance not adopted by the court that
    he thinks would if we adopted them
    prevent the EPA from seeking even an
    access order limited to inspection and
    testing. That is not a proper basis for a
    cross-appeal. It seeks not to alter the
    judgment but to shape our opinion in a
    fashion that by operation of the doctrine
    of stare decisis will give the judgment a
    broader consequence. To require a cross-
    appeal in such circumstances would cause
    immense confusion, since the precise
    stare decisis effect of differently
    grounded appellate opinions will often be
    impossible to predict. We leave for
    future consideration any arguments that
    Tarkowski may have against a more limited
    access order, as we have no reason to
    believe that the EPA will continue to be
    obsessed as it has been for far too long
    with the minuscule threat to the
    environment that he poses.
    Affirmed.
    RIPPLE, Circuit Judge, concurring in the
    judgment. As the panel notes, this is a
    very unusual case. The Environmental
    Protection Agency, an agency charged with
    a high responsibility and an often
    difficult task, here seeks to gain access
    to an individual’s property, for the
    purpose of continuing to inspect the land
    for evidence of the release or threat of
    a release of hazardous substances and for
    the purpose of effectuating a fairly
    extensive remedial action. What makes
    this case unusual is the very limited
    evidence of an environmental hazard that
    the E.P.A. has put forward to justify its
    request for an access order that includes
    the authority to "effectuate a response
    action." 42 U.S.C. sec. 9604(e)(3)(D).
    The panel quite properly holds that
    Congress, by allowing, in Section
    104(e)(5)(B)(i), for review of access
    requests under an arbitrary and
    capricious standard, did not intend to
    tolerate such intrusions when they are
    based on the very limited evidence of
    contamination put forward in this case.
    The court’s analysis, while adequately
    responding to the narrow and unusual
    situation before us, does leave a
    conceptual and practical difficulty that
    is bound to emerge in future and more
    difficult cases. In these cases, the
    E.P.A. will proffer more significant
    evidence of the release or threat of
    release of hazardous substances on an
    individual’s property and seek access to
    that land to investigate more accurately
    the nature and extent of the violation
    and to implement a significant remedy. In
    such an instance, a court will need to
    take into consideration the scope of the
    E.P.A.’s planned response action in order
    to carry out its responsibility under
    Section 104(e)(5) of determining whether
    "under the circumstances of the case the
    demand for entry [more specifically, a
    demand for entry to "effectuate a
    response action" under Section
    104(e)(3)(D)] . . . is arbitrary and
    capricious, an abuse of discretion, or
    otherwise not in accordance with law." 42
    U.S.C. sec. 9604(e)(5)(B)(i). What
    remains unclear are the circumstances
    that will justify a court’s denial of
    entry to effectuate a remedial order.
    Section 113(h) certainly appears to curb
    courts from examining the technical merit
    of a response action presented by the
    government and from micromanaging the
    activities that such an action could
    include. Yet, when the E.P.A.’s evidence
    of contamination allows access for some
    type of response action, but makes the
    contemplated remedy seem significantly
    disproportionate to the perceived
    violation, the limitations on the court’s
    authority are not well-defined. Today’s
    opinion, by suggesting that the E.P.A.’s
    remediation request must be reasonable,
    implies that there must be a
    proportionality between the investigative
    results and the proposed plan. Such a
    balancing approach may result in courts
    assuming a great deal more latitude than
    Congress intended.
    Today’s decision is hardly the occasion
    to delineate comprehensively or precisely
    the limits of judicial authority in such
    a situation. Disagreements can be
    expected between the E.P.A. and those
    that it seeks to regulate. The
    conflicting mandates of Section 104(e)(5)
    and Section 113(h) will collide far more
    starkly than they do in this case. More
    explicit congressional guidance would
    permit the E.P.A. to fulfill its
    responsibilities and the courts to
    respond more precisely to the legislative
    mandate.
    

Document Info

Docket Number: 00-2393

Judges: Per Curiam

Filed Date: 4/18/2001

Precedential Status: Precedential

Modified Date: 9/24/2015

Authorities (18)

david-schalk-and-ronald-t-smith-v-william-k-reilly-administrator-us , 900 F.2d 1091 ( 1990 )

james-l-dickerson-lareeta-h-dickerson-and-amtreco-inc-plaintiffs-v , 834 F.2d 974 ( 1987 )

conservation-law-foundation-of-new-england-inc-v-william-k-reilly-as , 950 F.2d 38 ( 1991 )

Nutrasweet Company, and Monsanto Company v. X-L Engineering ... , 227 F.3d 776 ( 2000 )

Massachusetts Mutual Life Insurance v. Ludwig , 96 S. Ct. 2158 ( 1976 )

mcclellan-ecological-seepage-situation-mary-fisher-charles-yarbrough-v , 47 F.3d 325 ( 1995 )

john-coe-individually-on-behalf-of-infant-coe-and-on-behalf-of-all , 162 F.3d 491 ( 1998 )

remus-joint-venture-and-environmental-disposal-systems-inc , 116 F.3d 180 ( 1997 )

Stone Container Corporation v. Hartford Steam Boiler ... , 165 F.3d 1157 ( 1999 )

United States v. David B. Fisher , 864 F.2d 434 ( 1988 )

In the Matter of Cmc Heartland Partners, Debtor , 966 F.2d 1143 ( 1992 )

North Shore Gas Company v. Environmental Protection Agency , 930 F.2d 1239 ( 1991 )

Kurt Froebel v. George E. Meyer , 217 F.3d 928 ( 2000 )

Voluntary Purchasing Groups, Inc. v. William K. Reilly, ... , 889 F.2d 1380 ( 1989 )

Clinton County Commissioners Arrest the Incinerator ... , 116 F.3d 1018 ( 1997 )

Marshall v. Barlow's, Inc. , 98 S. Ct. 1816 ( 1978 )

frank-j-kelley-attorney-general-of-the-state-of-michigan-frank-j , 15 F.3d 1100 ( 1994 )

Petrovic v. Amoco Oil Co. , 200 F.3d 1140 ( 1999 )

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