author: GRIFFIN, Circuit Judge.

text:
    IN RE: CITY OF DETROIT, MICH., Debtor. Maurikia Lyda, John Smith, Nicole Hill, Rosalyn Walker, Annette Parham, Janice Ward, Sylvia Taylor, Scott Eubank, Joanne Jackson, and Tammika R. Williams, individually and on behalf of all others similarly situated; Michigan Welfare Rights Organization; People’s Water Board; National Action Network—Michigan Chapter; Moratorium Now!, Plaintiffs-Appellants, v. City of Detroit, Mich.; Detroit Water and Sewerage Department, Defendants-Appellees.
    No. 15-2236
    United States Court of Appeals, Sixth Circuit.
    Argued: August 2, 2016
    Decided and Filed: November 14, 2016

      ARGUED: Mark P. Fancher, ACLU FUND.OF MICHIGAN, Detroit, Michigan, for Appellants.. Marc N. Swanson, MILLER, CANFIELD, PADDOCK AND STONE, P.L.C., Detroit, Michigan, for Ap-pellees. ON BRIEF: Mark P. Faneher, ACLU FUND OF MICHIGAN, Detroit, Michigan, Alice B. Jennings, EDWARDS & JENNINGS P.C., Detroit, Michigan, Kurt Thornbladh, THORNBLADH LEGAL GROUP PLLC, Dearborn, Michigan, John C. Philo, MAURICE & JANE SUGAR LAW CENTER FOR ECONOMIC & SOCIAL JUSTICE, Detroit, Michigan, for Appellants. Marc N. Swanson, Jonathan S. Green, Sonal H. Mithani, Ronald A. Spinner, MILLER, CANFIELD, PADDOCK AND STONE, P.L.C., Detroit, Michigan, for Appellees.
    Before: SUTTON, GRIFFIN, and DONALD, Circuit Judges.

      , The parties argue over the potential mootness of these claims as if the City’s chapter 9 case were closed. It is not. The bankruptcy court confirmed the City’s plan of adjustment, but it has not dismissed the action. See In re City of Detroit, No. 13-53846 (Bankr. E.D. Mich.). In its confirmation order, the court retained jurisdiction over adversaty proceedings like plaintiffs’ (among other, matters), and these disputes remain pending. Further, the plan itself mentions water rates in only a few short lines, stating that the City “may seek to implement a rate stability program” at a future date. As the bankruptcy court found, this provision "does not bind the City to take any specific actions,” nor does it prohibit defendants from acting in accordance with an order awarding injunctive or declaratory relief. In other words, nothing regarding the present status of the case makes it "impossible for the court to grant any effectual relief whatever” to plaintiffs if they prevail. Fialka-Feldman, 639 F.3d at 713.

   OPINION

GRIFFIN, Circuit Judge.

This appeal steins from an adversary-proceeding in the City of Detroit’s chapter 9 bankruptcy case. Plaintiffs are customers, and the purported representatives of customers, of the Detroit Water and Sewerage Department (DWSD). Relying primarily on 42 U.S.C. § 1983 and Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), they filed a complaint alleging a series of claims arising from DWSD’s termination of water service to thousands of residential customers. The legal theories underlying plaintiffs’ claims are varied, but the relief requested uniform: “preliminary and permanent injunctive relief stopping water shut offs and restoring] service,” and an order directing DWSD “to implement a water affordability plan with income based payments” for residential customers.

Section 904 of the Bankruptcy Code explicitly prohibits this relief. Whether grounded in state law or federal constitutional law, a bankruptcy court order requiring DWSD to provide water service at a specific price, or refrain from terminating service, “interfere[s]” with the City’s “political [and] governmental powers,” its “property [and] revenues,” and its “use [and] enjoyment of ... income-producing property.” 11 U.S.C. § 904. Plaintiffs’ due process and equal protection claims are, moreover, inadequately pled. Because plaintiffs cannot recover on their state-law or constitutional claims, we affirm the order of the district court affirming the bankruptcy court’s order of dismissal.

I.

The City of Detroit filed for chapter 9 bankruptcy protection in July 2013. See In re City of Detroit, No. 13-53846 (Bankr. E.D. Mich. filed July 8, 2013). At the time, the City and its residents faced problems “run[ning] wide and deep”—including the affordable provision of basic utilities. In July 2014, plaintiffs filed an adversary complaint seeking to intervene in the case. As the district court explained:

Plaintiffs are ten residents of the City of Detroit, Michigan, who are residential customers of the Detroit Water and Sewerage Department (“DWSD”), and four organizations who claim to “repre-sente ] members throughout the City of Detroit who are residential customers of DWSD.” The individual plaintiffs allege that in 2013 or 2014 the DWSD turned off their water, or threatened to do so, because their water bills were in arrears. Six of the plaintiffs indicate that their water service was turned off but then restored after they or their landlords paid a portion of the arrearage (generally one-third) and entered into payment plans, sometimes with advocacy assistance from one of the plaintiff organizations. Of the other four individual plaintiffs, two say they could not afford to pay the arrearage or the terms of the payment plan, or both, and remain without water; and the other two avoided sendee interruption when they, or their landlord, entered into payment plans. All plaintiffs find the cost of DWSD’s water service to be unaffordable.

Plaintiffs purported to represent themselves and a proposed class of “all persons living in households who have been issued notices of water-shutoffs,” and “who have had their water or sewerage service shutoff.” • ■ ¡ ;

Their amended complaint included seven counts. In Count I, plaintiffs alleged that terminating service constituted a “[b]reach of [executory [c]ontract[s]” in violation of 11 U.S.C. § 365. In Count II, they alleged DWSD violated their procedural due process rights by terminating service “without sufficient prior notice, without the opportunity for a hearing, or without an effective post termination hearing process.” In Count III, they alleged DWSD violated their right to equal pro-; tection by “treating. residential account holders in arrears differently than [delinquent] commercial account holders” who did not face termination of service. In Count IV, they alleged defendants created a “public health emergency” in violation of the Michigan Constitution. In Count V, they alleged estoppel, on the ground that customers reasonably relied on DWSD’s former policy of “allow[ing] the accumulation of large unpaid water bills without shut-offs.” In Count VI, plaintiffs sought declaratory and injunctive relief enjoining the “mass water shut offs.” And in Count VII, they alleged defendants violated their rights as humans, and as beneficiaries of the public trust, to water. Although not alleged in. a specific count, the bankruptcy court also read the allegations to include a substantive due process claim for continued water service at an affordable rate.

With the exception of a request for costs and attorney’s fees, plaintiffs prayed only for declaratory and injunctive relief, including: preliminary and permanent injunctions “stopfping] all water shut offs and restor[ing] service to DWSD residential customers”; a declaration that DWSD’s billing and shutoff procedures violated due process and equal protection rights, as well as the “human right to water” and the “public trust doctrine”; a declaration that the water provided by defendants is held in the public trust; and an order requiring “DWSD to implement a water affordability plan with income based- payments, for DWSD residential customers.”

Shortly after initiating suit, plaintiffs moved for a temporary restraining order (TRO) requiring DWSD to restore service to residential customers and prohibiting further shutoffs. Defendants objected to the request and moved for dismissal. In support of their motion, defendants relied primarily on 11 U.S.C. § 904. That statute provides:

Notwithstanding any power of the court, unless the debtor consents or the plan so provides, the court may not, by any stay, order, or decree, in the case or otherwise, interfere with—
(1) any of the political or governmental powers of the debtor;
(2) any of the property or revenues of the debtor; or
(3) the debtor’s use or enjoyment of any income-producing property.

11 U.S.C. § 904. As defendants saw it, “§ 904 explicitly prevented]” the bankruptcy court from granting the relief sought, regardless of the theory under which plaintiffs asserted their claims. “Since the Court cannot grant effectual relief to the Plaintiffs even if they prevail,” defendants urged the court to dismiss the adversary proceeding. Insofar as § 904 did not resolve the matter, they argued that Counts I through VII failed to state a claim upon which relief could be granted.

Plaintiffs responded. They countered that as DWSD customers, they shared ex-ecutory contracts with DWSD, and § 904 “do[es] not deprive the Court of supervision of assumption and rejectiont ] of exec-utory contracts under Section 365 of the Bankruptcy Code.” Plaintiffs argued the bankruptcy court could, and should, leverage this “supervis[ory]” authority to “compel Defendants] to assume executory contracts” including the relief sought.

The bankruptcy court held hearings on both motions. Delivering its initial ruling from the bench, the court granted defendants’ motion to dismiss and denied plaintiffs’ motion for a TRO.

In response, plaintiffs filed four motions for reconsideration, each of which included a request for permission to file a second amended complaint. Finding no palpable defect the correction of which would result in a different disposition of the case, see L.B.R. 9024-l(a)(3) (E.D. Mich.), the bankruptcy court denied the motions. It likewise denied plaintiffs’ requests to amend as untimely. “However, in'light of certain arguments plaintiffs raise[d],” the court found it “necessary to supplement and clarify” its earlier ruling. It stated:

The Court concludes the City’s motion to dismiss was properly granted, and thus the plaintiffs’ several motions for reconsideration must be denied, for the following three reasons:
(1) Under § 904 of the bankruptcy code, except as to the plaintiffs’ constitutional claims, this Court lacks the authority to grant the injunctive relief requested.
(2) While issues arising under § 365 of the bankruptcy code relating to executo-ry contracts do fall within the Court’s core jurisdiction, the relationship between DWSD and its customers is not an executory contract. Moreover, even if the relationship is an executory contract, the relief that the plaintiffs seek is outside of the scope of § 365 and is prohibited by § 904.
(3)Although the plaintiffs’ allegations of violations of due process and equal protection are not subject to § 904 because they are constitutional claims, they fail to state claims on which relief can be granted.
Finally, the Court concludes, in the alternative, that the evidence presented at the hearing .,. does not establish that the Court should grant a preliminary injunction.

Plaintiffs appealed to the district court, challenging the bankruptcy court’s decision in toto. The district court affirmed. It endorsed the bankruptcy court’s resolution of each substantive claim. With respect to plaintiffs’ request for a TRO, the court affirmed without considering the evidence in the alternative, because “[p]laintiffs are not entitled to any relief based on a complaint that fails to . state a claim.” Finally, it affirmed the denial of plaintiffs’ “improperly asserted” request for leave to amend, which “was not supported by a brief or by a proposed [second] amended complaint.”

Plaintiffs appeal. The only issúe they do not contest is the bankruptcy court’s dismissal of their executory contract claim.

II. ■

We begin with the question we posed at the outset of oral argument: whether this case is moot. After reviewing supplemental briefing on this point, we conclude it is not.

“Article III of the Constitution grants the Judicial Branch authority to adjudicate ‘Cases’ and ‘Controversies.’ ” Already, LLC v. Nike, Inc., — U.S.-, 133 S.Ct. 721, 726, 184 L.Ed.2d 553 (2013). Courts have “no business deciding legal disputes or expounding on law” without them. Id. (internal quotation marks omitted). “A case becomes moot—and therefore no longer a ‘Case’ or ‘Controversy’ for purposes of Article III—when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Id. (internal quotation marks omitted). “If events occur during the case, including during the appeal, that make it ‘impossible for the court to grant any effectual relief whatever to a prevailing party,’ the appeal must be dismissed as moot.” Fialka-Feldman v. Oakland Univ. Bd. of Trustees, 639 F.3d 711, 713. (6th Cir. 2011) (quoting Church of Scientology v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992)).

A.

This case involves two intervening events. First, as the bankruptcy court noted in its supplemental opinion, “none of the plaintiffs are currently without water service.” Following oral argument before this court, DWSD “conducted a search of its billing systems,” and “found nothing to indicate that the status of any of the plaintiffs’ water service has changed since the opinion was issued.” Because plaintiffs received the injunctive relief they requested, i.e., restoration of service, and did not seek damages, see Memphis Light, Gas and Water Div. v. Craft, 436 U.S. 1, 8, 98 S.Ct. 1554, 56 L.Ed.2d 30 (1978), defendants argue this appeal is moot. We disagree.

Plaintiffs “have sought, from the very beginning, declaratory relief as well as an injunction.” Super Tire Eng’g Co. v. McCorkle, 416 U.S. 115, 121, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974). They may retain an interest in obtaining a declaratory judgment if the challenged conduct is capable of repetition yet evading review. Id. at 122, 94 S.Ct. 1694. This doctrine permits suits for prospective relief to go forward in “exceptional situations,” where: (1) the challenged-conduct is too short in duration to be fully litigated before it expires; and (2) there is a reasonable expectation.that the same complaining party-will again be subject to the same action. Lewis v. Cont’l Bank Corp., 494 U.S. 472, 481, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990) (citation omitted). In this case, plaintiffs offered proof of both. See Lawrence v. Blackwell, 430 F.3d 368, 371 (6th Cir. 2005) (the party seeking to avoid mootness “bears the burden of establishing both prongs”).

At the hearing on plaintiffs’ motion for a TRO, John Smith testified that, DWSD terminated his water service for three to five months in early 2014. Defendant restored Smith’s service as of the date of the hearing, but scheduled another termination to begin the following day. Maurikia Lyda testified that DWSD terminated her water service for just over a .month between June, and July of 2014, only to restore service on the day she filed suit. Like Smith, Lyda had water at the time of the hearing, but she presented the court with a current shutoff notice and explained she was unable to pay the amount necessary to avoid another termination. With their supplemental brief, plaintiffs presented an affidavit from Nicole Hill, who described three shutoffs between 2014 and 2016. Hill cannot afford her August 2016 water bill and anticipates a fourth shutoff in the near future. Thus, this controversy is not just “capable of repetition”—in Hill’s case, it is repeating. Honig v. Doe, 484 U.S. 305, 319 n.6, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988); see also e.g., Barry v. Lyon, 834 F.3d 706, 712-13, 715 (6th Cir. 2016) (finding “[t]he record fully supports th[e] conclusion ... that the violation involved was capable of repetition but evading review,” where the plaintiff experienced “repeated problems” maintaining his food assistance benefits).

Defendants argue otherwise. They assert that the shutoffs are not capable of repetition “because DWSD has implemented the Water Residential Assistance Program,” among other strategies, to keep water rates within reach of low-income Detroiters. As defendants explain it, the WRAP “provides assistance to qualifying residential customers whose water service has been shut off or who have a past due bill. It is designed to encourage long term self-sufficiency by providing bill payment assistance for those in immediate crisis and water use efficiency tools in the hope of reducing future utility bills.” Those who do not qualify for the WRAP may be eligible for DWSD’s “10/30/50” plan, which allows customers to enter a payment plan by paying down ten percent of their past due balance—an improvement over the former plan requiring a thirty percent down payment.

These efforts are commendable. But they do not impact the continuing viability of plaintiffs’ claims. First, it appears none of the named plaintiffs are enrolled in the WRAP or the 10/30/50 payment plan; defendants do not contend that they are. Smith and Lyda testified that they could not afford the requisite ten percent down payment, and Hill continues to struggle with her water bills notwithstanding these new options. The existence of programs that could—but ultimately do not—help plaintiffs does not moot their claims. Second, these programs relate only to one of several issues on appeal—plaintiffs’ claim that they are entitled to continued water service at a price they can afford. Even if we agreed this issue is moot (and we do not), “the case as a whole remains alive because other issues have not become moot.” Int’l Union, United Auto., Aerospace, Agric. and Implement Workers of Am. v. Dana Corp., 697 F.2d 718, 721 (6th Cir. 1983) (citation omitted); see e.g., Ky. W. Va. Gas Co. v. Oil, Chem., and Atomic Workers Int’l Union, 549 F.2d 407, 411-12 (6th Cir. 1977) (examining the issues presented “separately to determine whether or not they have become moot”). Finally, the timing of service interruptions cannot be ignored—DWSD reconnected Lyda’s water service on the day she filed suit, and planned to terminate Smith’s for the second time the day after the evidentiary hearing. Coincidental or not, this is the type of conduct the capable-of-repetition exception is intended to preserve for review. See United States v. Oregon Med. Society, 343 U.S. 326, 333, 72 S.Ct. 690, 96 L.Ed. 978 (1952) (warning courts to “beware of efforts to defeat injunctive relief by protestations of repentance and reform, especially when abandonment seems timed to anticipate suit, and there is probability of resumption”).

“[T]he chain of potential events does not have to be air-tight or even probable to support the court’s finding of non-mootness. Instead, it is sufficient that [plaintiffs] possibly could” find themselves “once again in the same situation [they] faced when this suit was filed.” Barry, 834 F.3d at 716. Plaintiffs have made at least that showing. Current restoration of service does not moot their claims.

B.

A second intervening event compels a different conclusion with regard to plaintiffs’ procedural due process claim. Plaintiffs allege DWSD violated their due process rights by “[systematically terminating water services without providing adequate notice of shutoffs,” bills due, procedures to contest bills and shutoffs, or potential payment plans. Less than a month after plaintiffs filed their amended complaint, Detroit Mayor Mike Duggan announced changes to the procedures they disputed as .part of DWSD’s “Ten Point Plan.”

“Legislative repeal or amendment of a challenged statute ... usually eliminates th[e] requisite case-or-controversy because a statute must be analyzed by the appellate court in its present form.” Green Party of Tenn. v. Hargett, 700 F.3d 816, 822 (6th Cir. 2012) (quoting Ky. Right to Life v. Terry, 108 F.3d 637, 644 (6th Cir. 1997)). But “[a] controversy does not cease to exist merely by virtue of a change in the applicable law”—or in this case, the applicable procedure, Hamilton Cty. Educ. Ass’n v. Hamilton Cty. Bd. of Educ., 822 F.3d 831, 835 (6th Cir. 2016); “if that were the rule, a defendant could moot a case by repealing the challenged statute and replacing it with one that differs only in some insignificant respect.” Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 662, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993). The question instead is whether the new procedure is “sufficiently similar to the repealed [procedure] that it is permissible to. say that the challenged conduct continues.” Id. at 662 n.3, 113 S.Ct. 2297. If the current procedure “operates in the same fundamental way” its predecessor did, the original controversy remains alive. Green Party, 700 F.3d at 823 (citation omitted). If, on the other hand, the procedure “has been sufficiently altered so as to present a substantially different controversy,” the claim is moot. Hamilton Cty., 822 F.3d at 835 (citation omitted).

This case involves the latter circumstance. Apart from finding plaintiffs’ factual allegations insufficient, the bankruptcy court reasoned that the complaint incorporated DWSD’s old bills and shutoff notices by reference, see Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007), and “eonsider[ed] them in determining the adequacy of the plaintiffs’ due process allegations.” It concluded their “specific content” provided plaintiffs all the notice the Due Process Clause required. But the factual predicate for plaintiffs’ notice claim—and the bankruptcy court’s review of it—has changed.

DWSD’s shutoff procedure is no longer limited to a bill, followed by a shutoff notice, followed by termination of service. Defendant now places door hangers on households seven days before a scheduled termination. The hangers serve as another layer of warning and include information about how to make payments, seek- payment assistance, and avoid service interruption. The Ten Point Plan also changed the “specific content” of bills and notices. “Past Due” bills now include a provision for “COMPLAINTS AND DISPUTES,” warning that it is the customer’s responsibility to inform DWSD of a dispute within 28 days of the billing date. Water shutoff notices also explain customer rights not previously disclosed, such as the right to file a complaint; request and appear at a hearing; enter a payment plan; and delay shutoff in the event of a medical emergency.

In light of these changes, we cannot evaluate the bankruptcy court’s review of DWSD’s old bills and notices because we are bound to consider the procedure “in its present form.” Green Party, 700 F.3d at 822 (citation omitted). Moreover, the procedural posture of this case also means we cannot consider the “specific content” of the new bills, door hangers, .and shutoff notices because plaintiffs’ appeal of a Rule 12(b)(6) dismissal limits us to the pleadings. And unlike the bankruptcy court, we cannot read the complaint to incorporate these extraneous documents by reference—DWSD did not conceive of, or use them until after the complaint was filed.

Regardless of whether the new procedure is adequate, our review confirms that it “has been sufficiently altered so as to present a substantially different controversy” than the one that existed at the time of filing. Hamilton Cty., 822 F.3d at 835 (citation omitted). Plaintiffs’ ■ procedural due process claim is therefore moot.

A continuing controversy persists with regard to plaintiffs’ remaining claims. Having confirmed our jurisdiction over them, we proceed to the merits.

III.

‘Whether a bankruptcy appeal comes before this court by way of the Bankruptcy Appellate Panel (BAP) or the district court, our review is of the bankruptcy court’s decision.” Tidewater Fin. Co. v. Curry (In re Curry), 509 F.3d 735, 736 (6th Cir. 2007). We review the bankruptcy court’s dismissal of the complaint for failure to state a claim and its interpretation of 11 U.S.C. § 904 de novo. Se. Waffles, LLC v. U.S. Dep’t of Treasury (In re Se. Waffles, LLC), 702 F.3d 850, 856 (6th Cir. 2012); Deutsche Bank Nat. Trust Co. v. Tucker, 621 F.3d 460, 462 (6th Cir. 2010).

“The pivotal issue in this case is one of statutory construction,” Deutsche Bank, 621 F.3d at 462, namely, whether and to what extent plaintiffs’, complaint survives 11 U.S.C. § 904. While. the bankruptcy court determined that § 904 foreclosed recovery only on plaintiffs’ state-law claims, defendants argued below that the provision’s effect is broader, prohibiting the court from awarding any of the relief requested, whether plaintiffs alleged their injuries as state-law or constitutional harms. We agree.

A.

“The general policy considerations underlying the municipal debt adjustment plan of chapter' 9 are the same as that of chapter 11 reorganization: to give the debtor a breathing spell from debt collection efforts and establish a repayment plan with creditors.” In re Addison Cmty. Hosp. Auth., 175 B.R. 646, 649 (Bankr. E.D. Mich. 1994). “One dramatic difference” between the two is § 904, which limits the bankruptcy court’s authority over thé municipal debtor. In re City of Stockton, 486 B.R. 194, 198 (Bankr. E.D. Cal. 2013) (Stockton II). It provides:

Notwithstanding any power of the court, unless the debtor consents or the plan so provides, the court may not, by any stay, order, or decree, in the case or otherwise, interfere with—
(1) any of the political or governmental powers of the debtor;
(2) any of the property or revenues of the debtor; or
(3) the debtor’s use or enjoyment of any income-producing property.

11 U.S.C. § 904. “This section makes clear that the court may not interfere with the choices •& municipality makes as to what services and benefits it will provide.” Addison, 175 B.R. at 649. Were that not clear enough, a companion provision in § 903 reiterates that “[t]his chapter does not limit or impair the power of a State to control, by legislation or otherwise, a municipality ... in the exercise of the political or governmental powers of such municipality,” with limited exception. 11 U.S.C. § 903.

Section 904 “is a keystone in the constitutional arch between federal bankruptcy power , and state sovereignty.” Stockton II, 486 B.R. at 198, Powers not delegated to the federal government in our Constitution are reserved to the states. U.S. Const, amend. X. One of those powers is the power to create and govern municipalities. Addison, 175 B.R. at 649. And “[t]he sovereignty of the state essential to its proper functioning under the Federal Constitution cannot be surrendered; it cannot be taken away by any form of legislation.” Ashton v. Cameron Cty. Water Improvement Dist. No. 1, 298 U.S. 513, 531, 56 S.Ct. 892, 80 L.Ed. 1309 (1936) (striking down § 904’s earliest predecessor). Congress therefore drafted chapter 9 “to give courts only enough jurisdiction to provide meaningful assistance to ' municipalities that require it, not to address the policy matters that such municipalities control.” Addison, 175 B.R. at 649; see also Ass’n of Retired Emps. of the City of Stockton v. City of Stockton (In re City of Stockton), 478 B.R. 8, 17-18 (Bankr. E.D. Cal. 2012) (Stockton I) (detailing statutory history).

“The argument that the plain language of the statute should be applied is always strong.” In re City of Detroit, 524 B.R. 147, 208 (Bankr. E.D. Mich. 2014). Application of § 904’s plain language is straightforward:

In the overall construct, § ■ 904 performs the role of the clean-up hitter in baseball. Its - preambular .language “[notwithstanding any power of the court, . . the court may not, by any stay, order, or decree, in the case or otherwise ...” is so comprehensive that it can only mean that a federal court can use no tool in its toolkit—no inherent authority power, no implied equitable power, no Bankruptcy Code § 105 power, no writ, no stay, no order—to interfere with a municipality regarding political or governmental powers, property or revenues, or use or enjoyment of income-producing property. As a practical matter, the § 901 restriction functions as an anti-injunction statute—and more.

Stockton I, 478 B.R. at 20 (citations omitted, emphasis added).

The relief plaintiffs seek is exclusively injunctive and declaratory: preliminary and permanent injunctions ending water shutoffs and restoring service; declarations that DWSD’s billing and shutoff procedures are illegal in multiple respects; and an order requiring DWSD to “implement a water affordability plan with income based payments for DWSD residential customers.” Section 904’s plain language expressly prohibits the bankruptcy court from awarding any of these remedies.

Preliminary or permanent injunctions directing DWSD to stop terminations or to provide water service—including service at a specific price—necessarily “interfere[s] with” the city’s “governmental powers,” its “property [and] revenues,” as well as its “use [and] enjoyment of ... income-producing property.” See 11 U.S.C. § 904. A declaration that DWSD’s practices are illegal or unconstitutional does the same. Section 904 strips the bankruptcy court of authority to order anything of the sort. See Stockton I, 478 B.R. at 21 (regarding the plaintiffs’ request for monetary relief and attorney’s fees).

Plaintiffs address the text of § 904 only in their reply. They concede that the provision limits the bankruptcy court’s authority “as to the property of the [C]ity,” and do not explain how the court can grant declaratory or injunctive relief without offending these limitations. The party seeking to overcome the plain language of the Bankruptcy Code “bears an ‘exceptionally heavy" burden.” Patterson v. Shumate, 504 U.S. 753, 760, 112 S.Ct. 2242, 119 L.Ed.2d 519 (1992) (quoting Union Bank v. Wolas, 502 U.S. 151, 155-56, 112 S.Ct. 527, 116 L.Ed.2d 514 (1991)). Plaintiffs do not carry theirs.

B.

Although plaintiffs sought the same declaratory and injunctive relief for their state-law and constitutional claims, the bankruptcy court interpreted § 904 as barring recovery only on the former, and not the latter: “The Court concludes that § 904 does not protect the City from the bankruptcy court’s jurisdiction over plaintiffs’ constitutional claims because the City does not have the ‘governmental power’ to violate the due process and equal protection mandates of the Constitution.” Citing Monell, it further explained “[t]he Tenth Amendment’s reservation of nondelegated powers ... is not implicated by a federal-court judgment enforcing the express prohibitions of unlawful state conduct enacted by the Fourteenth Amendment.” (citation omitted). “The City must comply with those constitutional mandates.” This reasoning is not persuasive.

Municipal governments indisputably do not have “governmental power” to violate citizens’ constitutional rights. But it does not follow that the bankruptcy court has judicial power to enjoin such violations. Section 904 says it does not. “[W]hen the statute’s language is plain, the sole function of the courts ... is to enforce it according to its terms”—all of its terms. Lamie v. U.S. Trustee, 540 U.S. 526, 534, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004) (internal quotation marks omitted); see also TRW, Inc. v. Andrews, 534 U.S. 19, 31, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001) (“[N]o clause, sentence, or word” of a statute should be read as “superfluous, void, or insignificant”) (citation omitted). Relying solely on § 904(1), the bankruptcy court did not address the statute’s prohibitions against interference with the “property or revenues of the debtor,” or “use or enjoyment of any income-producing property”—both of which would be transgressed if the court awarded the declaratory and injunctive relief plaintiffs requested. See 11 U.S.C.- § 904(2)—(3).

That a federal court’s power should be more constrained in the chapter 9 context than in a typical Monell action also makes sense. Monell plaintiffs may claim damages, see generally, Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978), and prospective injunctive relief, such as the implementation of a training program that better protects citizens’ constitutional rights, provided they make the appropriate showing, see, e.g,, Hearring v. Sliwowski, 806 F.3d 864, 867-68 (6th Cir. 2015). We agree that the Tenth Amendment is not a barrier to a federal court’s authority over a municipality in that setting. Monell, 436 U.S. at 690 n.54, 98 S.Ct. 2018.

But a discrete change in policy in a particular office or department of local government is far removed from the complete financial overhaul undertaken in a municipal reorganization. Detroit’s case is a good example. “At the time of filing, the City had over $18 billion in escalating debt, over 100,000 creditors, hundreds of millions of dollars of negative cash flow,” failing infrastructure, and “a crumbling water and sewer system.” In re City of Detroit, 838 F.3d 792, 795 (6th Cir. 2016). .The bankruptcy court bore responsibility for approving a plan of adjustment equally vast in its aim to remedy these conditions. See id. at 796-97. Concerns for state sovereignty loom larger with so much at stake. “As a state-federal cooperative enterprise conducted in delicate circumstances in which state sovereignty must be respected, Congress has been sedulous to assure that the bankruptcy power not be used in municipal insolvencies in a manner that oversteps delicate state-federal boundaries.” Stockton I, 478 B.R. at 20. The massive scale of a municipal bankruptcy simply provides more opportunities for excessive federal court interference.

Hence, in addition to §§ 903 and 904, “[t]he entire structure of chapter 9 has been influenced by [a] pervasive concern to preserve the niceties of the state-federal relationship.” Id. Unlike in a chapter 11 case for instance, a chapter 9 petition creates no bankruptcy estate, and the Code’s restrictions on use, sale, or lease of property do not appiy. See 11 U.S.C. § 901(a) (excluding the application of 11 U.S.C. § 363); see also Melissa B. Jacoby, Federalism Form and Function in the Detroit Bankruptcy, 33 Yale J. on Reg. 55, 61 (2016) (describing the unique features of a municipal reorganization). There is no provision for the appointment of a trustee or examiner, see 11 U.S.C. § 901(a) (excluding application of 11 U.S.C. § 1104), nor is there any provision for involuntary bankruptcy; the city alone files its chapter 9 petition with the consent of the state, 11 U.S.C. § 109(c)(2). And the city alone files and amends its plan of adjustment. 11 U.S.C. §§ 941 & 942. “Neither the court nor creditors can directly force a liquidation of a municipality’s assets in bankruptcy.” Jacoby, supra at 61. Reading § 904 to preclude recovery on common-law and constitutional claims alike complements this structure.

In rebuttal,- plaintiffs argue that their constitutional claims supersede § 904 because Congress cannot circumvent rights guaranteed to citizens through the Fourteenth Amendment. But § 904 does not limit rights—it limits remedies. The bankruptcy court later determined that creditors asserting constitutional challenges against the City through 42 U.S.C. § 1983 may have their claim to damages impaired and discharged in bankruptcy like any other unsecured creditor: “The § 1983 remedial scheme may ‘emanate’ or ‘flow from’ the Fourteenth Amendment, as the § 1983' creditors argue. This does not, however, elevate that remedy to a constitutionally protected status.” In re City of Detroit, 524 B.R. at 262-65; see also Baker v. McCollan, 443 U.S. 137, 144 n.3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979) (noting that § 1983 “is not itself a source of substantive rights, but a method for vindicating federal rights” found elsewhere in the constitution and federal statutes). Its conclusion is bolstered by the fact that chapter 9 does not incorporate 11 U.S.C. § 523, which prohibits “individual debtor[s]” from discharging debts arising from “willful or malicious injury by the debtor to another”—reinforcing notion that such debts are dischargea-ble for a municipality. See 11 U.S.C. §§ 523(a)(6) (exempting debts for “willful and malicious injury” from discharge); 901(a) (excluding application of 11 U.S.C. § 523); see also Deocampo v. Potts, 836 F.3d 1134, 1140 n.10 (9th Cir. 2016). Plaintiffs’ constitutional rights are inviolable; but the remedies available to them in the chapter 9 setting are not.

“A statute’s plain meaning must be enforced, of course.” U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 454, 113 S.Ct. 2173, 124 L.Ed.2d 402 (1993). Section 904’s mandate is clear: it prohibits federal courts overseeing a municipal bankruptcy from interfering with the debtor’s political or governmental powers, property or revenues, or use or enjoyment of income-producing property, regardless of whether the claims at issue are constitutional. 11 U.S.C. § 904. Because § 904 prohibits the bankruptcy court from awarding the relief sought, notwithstanding the constitutional dimension of their ihjuries, plaintiffs failed to state a claim upon which relief can be granted. See Hamdi ex rel. Hamdi v. Napolitano, 620 F.3d 615, 628-29 (6th Cir. 2010). We therefore affirm the dismissal of plaintiffs’ amended complaint on these alternative grounds.

IV.

As explained, “Congress has tailored the federal municipal bankruptcy laws to preserve the States’ reserved powers over their municipalities.” Puerto Rico v. Franklin Cal. Tax-Free Trust, — U.S. -, 136 S.Ct. 1938, 1944, 195 L.Ed.2d 298 (2016). Plaintiffs cannot upset that carefully tailored balance and expand the bankruptcy court’s authority over the City based on the manner in which they draft their complaint. But even if they could, their constitutional claims fare no better under well-settled precedent.

After concluding plaintiffs’ substantive due process and equal protection claims survived the City’s § 904 challenge, the bankruptcy court dismissed both causes of action for failure to state a claim upon which relief can be granted. See Fed. R. Bankr. P. 7012 (incorporating Fed. R. Civ. P. 12). Plaintiffs argue this decision was in error. We disagree.

We review the dismissal of a complaint for failure to state a claim de novo. Se. Texas Inns, Inc. v. Prime Hosp. Corp., 462 F.3d 666, 671 (6th Cir. 2006). To survive a Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). “If the plaintiffs do not nudge their claims across the line from conceivable to plausible, their complaint must be dismissed.” Lutz v. Chesapeake Appalachia, L.L.C., 717 F.3d 459, 464 (6th Cir. 2013) (citation and brackets omitted). Dismissal is likewise appropriate where the complaint, however factually detailed, fails to state a claim as a matter of law. Mitchell v. McNeil, 487 F.3d 374, 379 (6th Cir. 2007).

A.

The bankruptcy court read plaintiffs’ complaint to include a claim for a substantive due process “right to water service at a price they can afford to pay.” It concluded “that there is no constitutional or fundamental right either to affordable water service or to an affordable payment plan for account arrearages.”

“Substantive due process is ‘the doctrine that governmental deprivations of life, liberty or property are subject to limitations regardless of the adequacy of the procedures employed.’ ” Range v. Douglas, 763 F.3d 573, 588 (6th Cir. 2014) (quoting Pearson v. City of Grand Blanc, 961 F.2d 1211, 1216 (6th Cir. 1992) (brackets omitted)). The class of interests it protects is “narrower than those protected by procedural due process.” Id. at 588 n.6. Government conduct violates substantive due process rights only if it deprives an individual of a particular constitutional guarantee, or otherwise “shock[s] the conscience.” Id. at 588 (quoting Bell v. Ohio State Univ., 351 F.3d 240, 249-50 (6th Cir. 2003)). Withholding water on condition of payment for delinquent charges does neither. See Mansfield Apartment Owners Ass’n v. City of Mansfield, 988 F.2d 1469, 1476-78 (6th Cir. 1993).

“Based on the City’s legal obligation to provide municipal water service to its residents,” the bankruptcy court found it “plausible that the plaintiffs could establish a liberty or property right to water service to which procedural due process rights apply.” However, “not all property interests that create procedural due process protections necessarily create substantive due process rights.” Id. at 1477. A municipality’s provision of utility service may create' a property interest “cognizable under the Due Process Clause,” bringing that service “within the compass of the Fourteenth Amendment’s procedural protections, measured according to ... Matthews V. Eldridge.” Id. (quoting Ransom v. Marrazzo, 848 F.2d 398, 411-12 (3d Cir. 1988)). But “it does not transform the expectation into a substantive guarantee against the state in any circumstance.” Id. (quoting Ransom, 848 F.2d at 412).

“Substantive due process affords only those protections so rooted in the traditions and conscience of our people as to be ranked as fundamental.” EJS Props., LLC v. City of Toledo, 698 F.3d 845, 862 (6th Cir. 2012) (quoting Charles v. Baesler, 910 F.2d 1349, 1353 (6th Cir. 1990)). These lights are “implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Washington v. Glucksberg, 521 U.S. 702, 721, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (internal quotation marks omitted). Thus, “the list of fundamental rights is short,” Grinter v. Knight, 532 F.3d 567, 573 (6th Cir. 2008), and seldom expanded, see Washington, 521 U.S. at 720, 117 S.Ct. 2258. Rights derived from state law, as opposed to the constitution, usually do not make the cut. Charles, 910 F.2d at 1353. “Most state-created rights that qualify for procedural due process protections do not rise to the level of substantive due process protection.” Range, 763 F.3d at 588 n.6.

This is the case for plaintiffs’ alleged property right to continued water service—or continued affordable water service. A right of this nature is not rooted in our nation’s traditions or implicit in the concept of ordered liberty. See Mansfield, 988 F.2d at 1477; Golden, 404 F.3d at 960. If such a right exists, it is rooted in Michigan law and the customer relationship plaintiffs share with DWSD. Memphis Light, 436 U.S. at 10-11, 98 S.Ct. 1554; see also Midkiff v. Adams Cty. Reg'l Water Dist., 409 F.3d 758, 763-64 (6th Cir. 2005); Mich. Comp. Laws § 123.166. Accordingly, we previously “rejected] the claim that conditioning the receipt of water service on the satisfaction of past due charges ... raises the question of a substantive due process violation.” Mansfield, 988 F.2d at 1477. We reject it again today: “there is no fundamental right to water service.” Golden, 404 F.3d at 960.

Moreover, substantive due process requires only that DWSD’s policy be “rationally related to the asserted legitimate governmental purpose of maintaining a financially stable municipal entity.” Mansfield, 988 F.2d at 1477; see also Midkiff, 409 F.3d at 769-70. Michigan law directs municipalities to set water rates at the reasonable cost of providing the service. See Mich. Comp. Laws § 141.121(1). As the bankruptcy court found, this practice is rationally related to maintaining DWSD’s financial stability:

Nothing suggests that it is arbitrary for the State of Michigan to require its municipalities to set water rates at the reasonable cost of delivering the service. Rather, the substantial costs involved [in] making water service available to customers suggests that it is entirely rational to fix the rates according to those costs rather than ability to pay. In a rate structure based on ability to pay, every dollar that a customer would not pay because of an inability to pay is one more dollar that other customers, or taxpayers, would have to pay. It is not irrational for the state to determine not to permit its municipalities to adopt such an alternative rate structure.

The bankruptcy court expressed empathy for plaintiffs’ circumstances. We echo its concern. The “inability ... to pay for water service on a current basis or to make up large arrearages due to past inability to pay is a serious, tragic problem facing the City and some residents.” But the court correctly declined to “conclude that the plaintiffs’ due process rights were violated when their water service was terminated for failing to pay, even when that failure was due to an inability to pay.” It did not err in dismissing plaintiffs’ claim for affordable water service.

B.

In Count III, plaintiffs alleged DWSD violated their equal protection rights by terminating their water service, while neglecting to do the same for delinquent commercial customers. The bankruptcy court dismissed their claim as insufficiently pled.

“To state an equal protection claim, a plaintiff must adequately plead that the government treated the plaintiff disparately as compared to similarly situated persons and that such disparate treatment either burdens a fundamental right, targets a suspect class, or has no rational basis.” Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 379 (6th Cir. 2011) (internal quotation marks omitted). Because no fundamental right or suspect class is involved in this case, plaintiffs bear the burden of establishing DWSD’s policy “is not rationally related to any legitimate public interest.” Ondo v. City of Cleveland, 795 F.3d 597, 608 (6th Cir. 2015).

This is an uphill climb. Under the rational basis standard, government action is afforded a strong presumption of validity, and we will uphold it as long as “there is a rational relationship between the disparity of treatment and some legitimate government purpose.” Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993). “A State, moreover, has no obligation to produce evidence to sustain the rationality of a statutory classification.” Id. The policy is presumed constitutional, and the burden is on plaintiffs to negate “every conceivable basis which might support it.” Id. at 320, 113 S.Ct. 2637 (citation omitted). Such deference is based on “a paradigm of judicial restraint.” TriHealth, Inc. v. Bd. of Comm’rs, Hamilton Cty., 430 F.3d 783, 791 (6th Cir. 2005) (citation omitted). The judiciary does not “sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines.” Heller, 509 U.S. at 319, 113 S.Ct. 2637 (citation omitted). Our “Constitution presumes that ... improvident- decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted.” TriHealth, 430 F.3d at 791 (citation omitted).

Plaintiffs assert that Heller’s standard of presumed rationality is inapplicable in the Rule 12(b)(6) context. In their view, requiring an equal protection claimant to “incorporate into their pleadings lengthy lists of rebuttable rationales for challenged legislation” is “an impossible” task at odds with Twombly’s holding that a complaint need only include enough facts to “raise a right to relief above the speculative level.” (Appellants’ Br., at 27 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955)). Plaintiffs are mistaken.

Heller applies at the pleadings stage. Midkijf, 409 F.3d at 770. “To survive a motion to dismiss” in the rational basis context, “a plaintiff must allege facts sufficient to overcome the presumption of rationality that applies to government classifications.” Wroblewski v. City of Washburn, 965 F.2d 452, 460 (7th Cir. 1992).

We put this principle to work in Bower v. Village of Mount Sterling, 44 Fed.Appx. 670 (6th Cir. 2002). The plaintiff in Bower alleged the defendants violated his equal protection rights by denying him “the opportunity to become a full-time police officer in the same manner as other Village officers.” Id. at 672. He overcame “the presumption of rationality” in the defendants’ decision by alleging facts that negated the two most likely non-discriminatory reasons defendants declined to hire him: a prior sexual harassment complaint, and the mayor’s statement to Bower’s supervisor that the Village council could not appoint him to a full-time position because appointing officers was not a council function. Id. at 675-76, 678. Specifically, the plaintiff alleged defendants appointed him as a reserve and part-time officer after the sexual harassment complaint (suggesting this was not their true motivation in denying him a full-time position). He also claimed the mayor’s statement was contrary to Ohio law, as well as the council’s past practice: “Plaintiff alleges that at least two other officers were hired in the exact same fashion [that the mayor] represented was not a council function.” Id. at 675, 678. The Bower court agreed that these facts adequately state an equal protection violation. Id. at 678.

Comparatively, plaintiffs here allege that: (1) “[a]t the time ... of the residential water shutoffs,” “there were numerous commercial water service consumers that were acknowledged to be delinquent in their payments”; (2) DWSD did not terminate water service to commercial customers “until there was international condemnation of the selective termination of water services”; and (3) there is no rational basis for the difference in treatment, as both residential and commercial customers “receive the same type of services.” The amended complaint includes no facts rebutting the likely non-discriminatory reasons DWSD may treat residential and commercial customers differently. And there are many. As the district court stated:

[T]he difference in treatment might be justified by the fact that commercial water customers have more complex service connections.... [It] might also be justified by the fact that terminating watdr service to commercial customers could seriously harm their businesses, causing layoffs and other undesirable economic consequences. The City might alsq reasonably find that commercial customers are more likely than residential customers to eventually pay past-due water bills.

Absent facts sufficient to overcome any of these explanations, plaintiffs’ assertion that there is no rational basis for the difference in treatment is a legal conclusion not entitled to the assumption of truth. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. The bankruptcy court therefore correctly dismissed plaintiffs’ equal protection claim.

V.

Finally, plaintiffs contend the district court abused its discretion in denying them leave to file a second amended complaint correcting the deficiencies in their constitutional claims.

But plaintiffs never moved for leave to amend. After the bankruptcy court granted defendants’ motion to dismiss, plaintiffs filed four motions for reconsideration and included the same single-sentence request for leave to amend in each one. They did not offer a proposed second amended complaint or otherwise “state with particularity the grounds” for the relief sought. Fed. R. Bankr. P. 9013 (incorporating Fed. R. Civ. P. 7(b)(1)). The bankruptcy court was not obligated to grant so perfunctory a request buried in motions directed at a different purpose. See Evans v. Pearson Enters., Inc., 434 F.3d 839, 853 (6th Cir. 2006). In any event, plaintiffs offered no set of factual allegations entitling them to relief in view of § 904. We find no abuse of discretion in the bankruptcy court’s decision. Id. at 853-54.

VI.

The foregoing conclusions moot plaintiffs’ appeal of the bankruptcy court’s decision denying their request for a TRO. Plaintiffs are not entitled to any relief, much less preliminary relief.

VII.

The circumstances plaintiffs allege are truly unfortunate. Living without water, even if only for a few days, poses a substantial risk to health and safety. Beyond that, it is a significant indignity. But plaintiffs have not identified a legal theory capable of evading § 904’s broad prohibitions against injunctive and declaratory relief. Nor have they alleged facts sufficient to state claims for the violation of substantive due process or equal protection rights.

For these reasons, we VACATE the district court’s order with respect plaintiffs’ now-moot procedural due process claim, and AFFIRM its order affirming dismissal of plaintiffs’ remaining claims.

      . While neither lower court' entered a judgment in this case, we have jurisdiction over the final order of the district court affirming the bankruptcy court's order of dismissal. See 28 U.S.C. § 158(d)(1).

      . The WRAP provides those with a household income at or below 150% of the federal poverty threshold up to $1,000 in assistance per year towards their water bills. Enrolled customers who remain current on monthly bills are also eligible to have a portion of their past due balance forgiven. If a participant's water usage is significantly higher than the regional average, DWSD may conduct a water audit to identify possible leales or other ways to reduce consumption.

      . If customers miss a payment, “they can reapply for the program by putting down 30 percent of their past-due balance. A second missed payment will require a 50 percent down payment of their past-due amount. Any customer who misses a third payment will no longer be eligible for the payment plan.”

      . We previously applied the voluntary cessation exception to determine whether a change in water termination procedures moots a challenge to the earlier policy. See Golden v. City of Columbus, 404 F.3d 950, 962 n.10 (6th Cir. 2005). Plaintiffs do not ask us to scruti-nizé DWSD’s conduct under this exception, though it does not change the outcome. Voluntary cessation of a disputed procedure negates mootness only when "legislators ... publicly expressed an intention to re-enact the offending legislation,” or in this case, the offending- procedure. Brandywine, Inc. v. City of Richmond, 359 F.3d 830, 836 (6th Cir. 2004); see also Bench Billboard v. City of Cincinnati, 675 F.3d 974, 981-82 (6th Cir. 2012). DWSD has not expressed any such intent. .

      . Although an adversary proceeding is normally an appropriate vehicle to obtain injunc-tive and declaratory relief, see Fed. R. Bankr. P. 7001(7) & (9), in view of the City's § 904 defense, plaintiffs may have been better off moving for relief from the automatic stay to pursue their claims outside of bankruptcy court. See 11 U.S.C. § 362; see also id. § 901(a) (incorporating § 362), Plaintiffs would have to prove that they are a "party in interest,” entitled, to lift the stay "for cause,” despite their status as non-creditors. 11 U.S.C. § 362(d)(1); see also Addison, 175 B.R. at 649-50; In re City of San Bernardino, 558 B.R. 321, 328-33 (Bankr. C.D, Cal. 2016).

      . Both parties agree with this interpretation.

      . Insofar as this challenge relates to plaintiffs’ procedural due process claim, their request to amend the complaint is moot for the reasons stated in section II.B,


source: Caselaw Access Project

author: KETHLEDGE, Circuit Judge,

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Kevin PRICE, Defendant-Appellant.
    Nos. 15-2041/16-1163
    United States Court of Appeals, Sixth Circuit.
    Argued: July 27, 2016
    Decided and Filed: November 14, 2016

      ARGUED: Jeffrey P. Nunnari, Toledo, Ohio, for Appellant. Sally J. Berens, United States Attorney’s Office, Grand Rapids, Michigan, for Appellee. ON BRIEF: Jeffrey P. Nunnari, Toledo, Ohio, for Appellant. Mark V. Courtade, United States Attorney’s Office, Grand Rapids, Michigan, for Appellee.
    Before: SILER, GIBBONS, and KETHLEDGE, Circuit Judges.
   OPINION

KETHLEDGE, Circuit Judge,

Kevin Price argues that the police arrested him without probable cause and that the district court therefore should have suppressed the guns and drugs they seized three hours after his ai’rest. By the time of his arrest, however, the police had information that Price was the supplier for another heroin dealer whom the police had arrested two weeks before; and immediately before Price’s arrest, the police saw (or at least could reasonably believe they had seen) Price engage in an apparent hand-to-hand drug deal and then flee after realizing that the police were present. We reject Price’s argument and affirm.

I.

At dusk on February 4, 2014, seven members of the Kent Area Narcotics Team set out to execute a search warrant at the home of Kevin Price, at 1116 Fuller Avenue SE in Grand Rapids. The weather was cold and in some places the neighborhood roads were reduced to a single lane from the snowbanks on each side. The officers suspected that Price was a heroin dealer: per the warrant affidavit of Detective Nick Schwein, multiple informants— including another dealer who had recently identified Price as his source of supply— had reported that Price was “dealing large quantities of heroin” from his home. The officers also had a description of Price’s vehicles and knew that he was a six-time narcotics felon.

Given Price’s criminal history, the team wanted to know his whereabouts before trying to enter his house. Their plan was to detain Price outside before searching inside. Price’s house sat near the southeast corner of the intersection of Fuller Avenue, which runs north-south, and Fisk Road, which runs east-west. Schwein and two other officers sat in a police-surveillance van on Fuller, just south of Price’s house; two more officers sat in an unmarked Crown Victoria on Fisk, just west of the house. Soon Price’s truck, with a snowmobile trailer in tow, drove north on Fuller past the surveillance van. The truck passed Price’s house and made a left onto Fisk, heading west toward the Crown Vic. Before reaching those officers, however, the truck and trailer came to a halt in the snowbound street, partially blocking it. One of the officers in the Crown Vic, Sheriffs deputy Patrick Frederick, then saw Price exit the truck and walk over to an idling Chevrolet Tahoe, whose driver lowered his window. Price spoke briefly with the driver and then leaned his head, hands, arms, and shoulders into the vehicle—a motion that Frederick had seen many times before, and that in his experience was indicative of a drug transaction. Then the conversation ended and the Tahoe drove off.

Frederick radioed the other officers to ask whether he should follow the Tahoe. They said he should stay put ■ to watch Price, who began walking east on Fisk and then turned south, into an alley behind his house. There, Price was spotted by Detective Tiffany MacKellar, a late arrival who had parked in that same alley, but north of Fisk Street, looking south. She positively identified Price as he paced back and forth near a truck parked in the alley behind his house. Then Price got into that truck and drove north out of the alley, turning west onto Fisk and then north onto Fuller.

MacKellar called out over the radio that the officers should move quickly to seize Price. The snowbanks and Price’s trailer briefly delayed Frederick in the Crown Vic, but he soon followed Price north on Fuller, with MacKellar looping around the block to intercept Price head-on. The officers stopped Price at the intersection of Fuller and Alexander Street, a block north of his house. There they ordered him out of his truck and onto the ground at gunpoint before placing him in handcuffs. Then they took Price back to his house and brought him inside while they searched the premises.

In the house, the police found drug-dealing paraphernalia—scales, presses, chemical cutting agents—but no illegal drugs. They also found documents showing that Price rented two units at a nearby storage facility.- Schwein read Price his Miranda rights and asked for permission to search the storage units; Price told him to get a warrant. Schwein left to prepare a warrant application and Deputy Frederick went to the storage facility so that he could describe the premises for a warrant affidavit. There, he learned that Price’s storage units consisted of a mailbox and a parking place occupied by a large van. Frederick called the officers at Price’s house to tell them about the van; they in turn questioned Price about it. At that point, three hours after his arrest, Price admitted that the van was his and that he kept guns inside it. Price consented to a search of the van, in which Frederick then found an AK-47, three Taurus handguns, and 200 grams of cocaine.

A federal grand jury thereafter indicted Price on a single count of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). Before trial, Price moved to suppress the government’s evidence on the grounds that his seizure and detention were unlawful, and that, but for his detention, he would not have consented to a search of his van. The district court denied the motion after hearing testimony from Schwein, Frederick, MacKellar, and other officers present during the search of Price’s home. A jury later convicted Price and the district court sentenced him to 324 months’ imprisonment, which was the bottom of his Guidelines range.

Price thereafter moved pro se for the return of certain property seized by police during the search of his home. The district court denied the motion. These appeals followed.

II.

A.

Price argues that the police arrested him without probable cause when they took him into custody at gunpoint at the intersection of Fuller and Alexander Street, and that his consent to search his van, given three hours later, was therefore invalid. Thus he says the district court should have granted his motion to suppress. Our standard of review is deferential: although we review the district court’s legal conclusions de novo, we review its factual findings for clear error and consider the evidence in the light most favorable to affirmance. See United States v. Winters, 782 F.3d 289, 294-95 (6th Cir. 2015).

To have probable cause for an arrest, the police must be aware of “facts and circumstances” sufficient to allow a prudent person to think the arrestee has committed or is about to commit a crime. Radvansky v. City of Olmsted Falls, 496 F.3d 609, 614 (6th Cir. 2007). When the police already have reasonable suspicion that a person has committed a crime, and the suspect later flees from the police, they have probable cause to arrest him. See Weaver v. Shadoan, 340 F.3d 398, 409-10 (6th Cir. 2003).

Here, the police arrived at Price’s house with at least reasonable suspicion—that is, “a particularized and objective basis,” id. at 407—to believe that Price was dealing drugs. As Detective Schwein attested in his search-warrant affidavit, the police had received information from multiple sources that Price was “dealing large quantities of heroin.” That information included that, only two weeks before, the police had arrested another heroin dealer, Larry Vaughn, who identified Price as his supplier and said that:Price dealt large quantities of heroin out of his house. In addition, after the police arrived, Deputy Frederick observed Price engage in conduct that, in Frederick’s experience, was indicative of a hand-to-hand drug sale. That Price himself was a six-time narcotics felon only reinforced that belief. See United States v. Stepp, 680 F.3d 651, 667 (6th Cir. 2012).

Moreover, by the time Price walked down the alley behind his house, Price had walked or driven past three police vehicles: the surveillance van on Fuller, the Crown Vic on Fisk, and MacK-ellar’s vehicle in that same alley, facing him on the other side of Fisk. True, the vehicles were unmarked; but unmarked does not mean unrecognizable, particularly since, as the district court correctly observed, a Crown Victoria is “easily associated with police even when unmarked.” Op. at 10. And then Price engaged in conduct that, given the circumstances, the officers could regard as flight: he abandoned his truck and trailer in the street, thereby partially blocking it; he paced around in the alley behind his house, as if figuring out what to do; and then he took off in a truck different from the one in which he had arrived. By this point, if not earlier, the police had probable- cause to think that Price was- a heroin dealer.

At oral argument, Price’s counsel responded, not unreasonably, that the police could not infer both that Price knew they were there (the premise of the inference about flight) and that he sold drugs to the Tahoe driver in plain view of those same officers. But Price might not have realized until after his encounter with the Tahoe driver that the two police vehicles he had already seen, and MacKellar’s vehicle— which he saw after he walked away from the Tahoe—were in fact police vehicles. It remains possible of course, that Price was not engaging in a drug deal when he put his upper body inside the driver’s window of an idling vehicle on a snowy night in February, and that Price was merely going about his regular business when he left his truck and trailer partially blocking the street and then drove off in another vehicle. But the police deal in probabilities, not certainties. Here, viewing the record in the light most favorable to,affirmance, the.police could reasonably infer that Price’s behavior was not merely a series of remarkable coincidences—and that instead he was likely dealing drugs. Probable cause requires no more than that.

Price’s arrest was lawful, and thus did not vitiate his later consent to search his van. The district court therefore properly denied Price’s suppression motion.

B.

Price also argues in a separate, pro se appeal that the district court erred when it denied his Rule 41(g) motion for the return of his property. We review the district court’s decision for an abuse ,of discretion. See Savoy v. United States, 604 F.3d 929, 932 (6th Cir. 2010).

Rule 41 permits federal criminal defendants to move for the return of unlawfully seized property “in the district where the property was seized.” Fed. R. Crim. P. 41(g). For the district court to grant the motion, however, the federal government must have itself possessed the property at some point. See Okoro v. Callaghan, 324 F.3d 488, 491-92 (7th Cir. 2003). Here, the district court concluded, based on undisputed testimony,, that “state and local officers” had seized and disposed of the property—cars, jewelry, electronics, and cash—that Price sought to have returned. Hence the federal government never possessed the property at issue, and the district court was correct to deny the motion.

The district court’s judgment is affirmed.


author: PER CURIAM.

text:
    Syed Jawed AKHTAR-ZAIDI, M.D., Petitioner, v. DRUG ENFORCEMENT ADMINISTRATION, Respondent.
    No. 15-3886
    United States Court of Appeals, Sixth Circuit.
    Decided and Filed: November 15, 2016

      ON BRIEF: Lena D. Watkins, Anita J. Gay, United States Department of Justice, Washington, D.C., for Respondent. Syed Akhtar-Zaidi, Cleveland, Ohio, pro se.
    Before: CLAY, ROGERS, and KETHLEDGE, Circuit Judges.
   ORDER

PER CURIAM.

Syed Jawed Akhtar-Zaidi, M.D. (Dr. Zaidi), an Ohio physician proceeding pro se, seeks review of a final decision of the Administrator of the Drug Enforcement Administration (DEA) affirming an immediate suspension order (ISO) suspending the certificate of registration that permitted him to dispense controlled substances. Dr. Zaidi also seeks to proceed in forma pauperis for purposes of this review. See Fed. R. App. P. 24. This case has been referred to a panel of the court that, upon examination, unanimously agrees that oral argument is not needed. See Fed. R. App. P. 84(a).

' From September 2012 until May 2013, three undercover DEA agents posed as patients under Dr. Zaidi’s care as a part of an investigation into Dr. Zaidi’s controlled substances prescription practices. As a result of this investigation, the DEA Deputy Administrator suspended Dr. Zaidi’s controlled substances prescription privileges on the basis that his continued registration posed an imminent danger to the public health and safety. See 21 C.F.R. § 1301.36(e); 21 U.S.C. § 824(d). DEA agents also seized controlled substances from Dr. Zaidi’s offices. Dr. Zaidi requested a hearing before an administrative law judge (ALJ).

Dr. Zaidi attempted to supplement his prehearing statement to include additional witnesses after the time for doing so had expired. The ALJ denied Dr. Zaidi’s request. A two-day hearing was conducted in December 2013. Dr. Zaidi then submitted an offer of proof outlining what the testimony of his additional witnesses, including his expert, employees, and former patients, would have been. The ALJ recommended that the ISO and seizure of controlled substances from Dr. Zaidi’s office be affirmed and that his registration be revoked. Syed Jawed Akhtar-Zaidi, 80 Fed. Reg. 42,962, 42,986 (DEA July 20, 2015). Dr. Zaidi’s registration expired on June 30, 2014, and he has not attempted to renew it.

The Administrator affirmed the ISO and seizure of controlled substances, but declined to adopt the ALJ’s recommendation to revoke Dr. Zaidi’s registration, finding that the issue was moot due to the expiration . of Dr. Zaidi’s registration and his decision not to seek renewal. Id. The Administrator found that the government, had satisfied its prima facie burden under 21 U.S.C. § 824 by showing that Dr. Zaidi’s continued registration was not in the public interest, basing its finding on the conclusion that Dr. Zaidi prescribed controlled substances outside the usual course of professional practice without a legitimate medical purpose and violated state and federal law by (1) prescribing medication without patients’ addresses, (2) overstating the nature and extent of examinations conducted and pain levels reported by patients, and (3) failing to comply with state requirements relating to the treatment of chronic pain. Syed Jawed Akhtar-Zaidi, 80 Fed. Reg; at 42,962.

Dr. Zaidi now seeks this court’s review, advancing six arguments: (1) the ALJ arbitrarily and capriciously denied him the opportunity to present testimony from an expert, employees, and former patients; (2) there was insufficient evidence to support the ISO; (3) the government failed to make a prima facie showing that his continued registration was inconsistent with the public interest; (4) his prescriptions to the three undercover officers were not outside the usual course of professional practice and did not lack a legitimate medical purpose; (5) he did not falsify medical records; and (6) the sanction imposed by the ISO, which is effectively a revocation, is disproportionately harsh. The government responds that substantial evidence supports the Administrator’s finding that Dr. Zaidi repeatedly prescribed controlled substances in a manner inconsistent with the public interest, and that issuance of the ISO was a proper exercise of the Deputy Administrator’s discretion.

The Administrator’s decision will bé set aside if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Review under this standard is “highly deferential.” Latin Ams. for Soc. & Econ. Dev. v. Fed. Highway Admin., 756 F.3d 447, 464 (6th Cir. 2014). A court “is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983).

A court determines “whether the [agency] decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Id. The Administrator “must ‘examine the relevant data’ and the record must reflect ‘a rational connection between the facts found and the choice made.’” Hoxie v. DEA, 419 F.3d 477, 482 (6th Cir. 2005) (quoting Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43, 103 S.Ct. 2856). The Administrator’s factual, findings are conclusive if supported by substantial evidence. See 21 U.S.C. § 877. “Substantial evidence is more than a scintilla of evidence but less than a preponderance...,” Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989) (citing Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)).

Under the Controlled Substances Act, physicians who dispense controlled substances are'required to obtain proper registration from the Attorney General. 21 U.S.C. § 822(a)(2). This registration can be suspended or revoked if a registrant “has committed such acts as would render his registration ... inconsistent with the public interest.” 21 U.S.C. § 824(a)(4). The public interest is determined by considering the following factors:

(1) The recommendation of the appropriate State licensing board or professional disciplinary authority.
(2) The applicant’s expertise in dispensing, or conducting research with respect to controlled substances.
(3) The applicant’s conviction record under Federal or State laws relating to the manufacture, distribution, or dispensing of controlled substances.
(4) Compliance with applicable State, Federal, or local laws relating to controlled substances.
(5) Such other conduct which may threaten the public health and safety. ' ■

21 U.S.C. § 823(f). The Administrator “must consider each factor, though he need not make explicit findings as to each one and can ‘give each factor the weight [he] determines is appropriate.’ ” Volkman v. DEA, 567 F.3d 215, 222 (6th Cir. 2009) (quoting Hoxie, 419 F.3d at 482).

Pursuant to § 823(f)(4), a registrant’s compliance with applicable state and federal controlled substance law's is relevant to determining the public interest under § 824(a)(4). Under federal law, “[a] prescription for a controlled substance .., must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.” 21 C.F.R. § 1306.04(a). Moreover, “[a]ll prescriptions for controlled substances shall be dated as of, and signed on, the day when issued and shall bear the full name and address of the patient.” 21 C.F.R. § 1306.05(a).

In Ohio, chronic pain is defined as “pain that has persisted after reasonable medical efforts have been made to relieve the pain or cure its cause and that has continued, either continuously or episodically, for longer than three continuous months.” Ohio Rev. Code § 4731.052(A)(1). When prescribing controlled substances for chronic pain or intractable pain on a protracted basis, physicians should establish and document a medical diagnosis that includes more than just intractable pain, “but also the signs, symptoms, and causes and, if determinable, the nature of the underlying disease and pain mechanism.” Ohio Admin. Code § 4731-21-02.

Dr. Zaidi challenges the Administrator’s finding that his continued registration would be inconsistent with the public interest. Specifically, he argues that he did not prescribe controlled substances outside the usual course of professional practice or without , a legitimate medical purpose, that he did not falsify medical records, and that he complied with appropriate practices in prescribing controlled substances for chronic pain. However, the record is replete with evidence supporting the Administrator’s finding. For example, the government’s expert testified that Dr. Zaidi’s prescriptions were not issued for a legitimate medical purpose because his medical diagnoses were unsupported by the nature and extent of the examinations he conducted and the limited information received from the undercover officers. Dr. Zaidi also prescribed controlled substances despite lacking the address of one of the officers. And after treating the undercover officers for more than three months, Dr. Zaidi continued to prescribe more and stronger controlled substances without an appropriate working diagnosis in violation of Ohio law. Accordingly, there is substantial evidence supporting the finding that suspending Dr. Zaidi’s registration is in the public interest.

Dr. Zaidi’s argument that the ALJ arbitrarily and capriciously denied him the opportunity to present testimony from his expert, Dr. Richard Stieg, does not alter this conclusion. The ALJ’s decision to preclude Dr. Stieg from testifying is at most harmless error. Even if Dr. Stieg had been permitted to testify and the ALJ had credited his testimony regarding the standard of care, the Administrator could still find that permitting Dr. Zaidi to continue prescribing controlled substances is not in the public interest. Dr. Stieg’s proffered testimony does not touch upon the lawfulness of falsifying medical reports by exaggerating reported pain levels and reporting that certain examinations were performed when in fact they were not. Nor does Dr. Stieg’s testimony touch upon Dr. Zaidi’s prescription of controlled substances to undercover officers without patient addresses.

Dr. Zaidi’s argument that he did not falsify medical records is unpersuasive. The record is replete with evidence that Dr. Zaidi falsified each officer’s medical record at nearly every visit. Specifically, the officers’ medical records indicate results of tests that were never conducted. The government’s expert testified that Dr. Zaidi falsely reported the officers’ pupils’ reactivity to light, their heart and chest sounds, the condition of their abdomens, their lower extremity sensory and motor condition, and their limbs’ range of motion, leading to an untenable diagnosis from which to prescribe controlled substances. Additionally, patient records indicate reported pain levels higher than what was actually reported by the officers. Thus, there was substantial evidence that Dr. Zaidi had falsified medical records.

Finally, Dr. Zaidi contends that the Administrator’s order upholding the ISO operates as a revocation and is unduly harsh under the circumstances. “Determination of a sanction to be applied by an administrative agency, if within bounds of its lawful authority, is subject to very limited judicial review.” Woodard v. United States, 725 F.2d 1072, 1077 (6th Cir. 1984). “The reviewing court’s function is only to ‘determine the validity of the questioned administrative action,’ not to review the sanctions.” Id. (quoting Martin v. United States, 459 F.2d 300, 302 (6th Cir. 1972)).

The immediate suspension of a certificate of registration to dispense controlled substances is within the Deputy Administrator’s lawful authority, see 28 C.F.R. §§ 0.100(b), 0.104, App. § 12, when “there is an imminent danger to the public health or safety.” 21 U.S.C. § 824(d)(1). An “ ‘imminent danger to the public health or safety1 means that, due to the failure of the registrant to ... comply with the obligations of a registrant ... there is a substantial likelihood [that] ... abuse of a controlled substance will occur in the absence of an immediate suspension of the registration.” 21 U.S.C. § 824(d)(2).

Dr. Zaidi’s failure to comply with state and federal laws concerning the dispensing of controlled substances created a substantial likelihood that abuse of controlled substances would occur in the absence of an immediate suspension. The decision to immediately suspend Dr. Zai-di’s registration was therefore “within the bounds of [the Deputy Administrator’s] lawful authority.” Woodard, 725 F.2d at 1077.

Accordingly, Dr. Zaidi’s motion for leave to proceed in forma pauperis is GRANTED for purposes of this review only, and his petition for review is DENIED.