Aelen Unan and Patricia Quintino, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants,
Nick Lyon, in his official capacity as Director, Michigan Department of Community Health and Human Services, Defendant-Appellee.
Argued: November 29, 2016
from the United States District Court for the Eastern
District of Michigan at Detroit. No. 2:14-cv-13470-Marianne
O. Battani, District Judge
M. Hill, MICHIGAN IMMIGRANT RIGHTS CENTER, Kalamazoo,
Michigan, for Appellants.
S. Smith, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing,
Michigan, for Appellee.
M. Hill, Susan E. Reed, MICHIGAN IMMIGRANT RIGHTS CENTER,
Kalamazoo, Michigan, Marie K. DeFer, Edward J. Hoort,
Veronica A. Perera, Lysa Postula-Stein, CENTER FOR CIVIL
JUSTICE, Flint, Michigan, for Appellants.
Jonathan S. Ludwig, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Appellee.
Before: MOORE, SUTTON, and WHITE, Circuit Judges.
NELSON MOORE, Circuit Judge.
course of implementing certain changes required by the
Patient Protection and Affordable Care Act of 2010
("ACA"), the State of Michigan experienced a
systemic computer problem that erroneously assigned thousands
of non-citizens, who may have been eligible for comprehensive
Medicaid coverage, to Emergency Services Only
("ESO") Medicaid. Plaintiffs Aelen Unan and
Patricia Quintino, two eligible non-citizen residents of
Michigan who were erroneously assigned ESO coverage, filed a
class action complaint against Nick Lyon, Director of the
Michigan Department of Health and Human Services
("DHHS"), alleging violations of the Medicaid
statute and the Due Process Clause of the Fourteenth
Amendment. On cross-motions for summary judgment, the
district court found that actions taken by the State since
the complaint was filed had resolved all systemic errors.
Finding plaintiffs' claims to be moot, the district court
granted defendant's motion for summary judgment, denied
plaintiffs' motion for the same, and dismissed as moot
plaintiffs' motions for preliminary injunction and class
certification. Plaintiffs now appeal the district court's
judgment. For the reasons set forth below, we hold that the
plaintiffs' claims are not moot, and REVERSE the district
court's grant of defendant's motion for summary
judgment. On the basis of grounds other than those relied
upon by the district court, we AFFIRM the denial of
plaintiffs' motion for summary judgment as to their
claims that defendant failed to provide comprehensive
Medicaid coverage and a reasonable opportunity to verify
immigration status, and hold that there are fact issues
precluding summary judgment for both plaintiffs and
defendant. We hold that defendant is entitled to judgment as
a matter of law on the remaining notice claims, and we REMAND
the case for further proceedings.
1986, Congress made comprehensive Medicaid benefits available
to eligible non-citizens who attest to having
"satisfactory immigration status." Pub. L. No.
99‒603, § 121(a)(1), 100 Stat. 3359 (codified as
amended at 42 U.S.C. §1320b‒7(d)(4)(A)).
Non-citizen applicants are required to present verified
documentation to prove their immigration status. 42 U.S.C.
§ 1320b‒7(d)(2). If an individual attests to his
or her status, but does not submit or verify the required
documentation, state Medicaid agencies are required to
provide that individual with a "reasonable
opportunity" to provide documents verifying their
eligible status. 42 U.S.C. § 1320b‒7(d)(4)(A). In
Michigan, DHHS administers the state Medicaid program,
which is known as the Healthy Michigan Plan. Appellee's
Br. at 3.
January 25, 2014, DHHS implemented various system changes
required by the ACA. R. 22‒6 (Hundley Aff. at 2) (Page
ID #837). In the course of implementation, a systemic
computer problem caused a number of applicants to be assigned
automatically to ESO Medicaid, although they might otherwise
be eligible for comprehensive coverage. Specifically,
non-citizen applicants who attested to, but failed to verify,
their immigration status were automatically denied
comprehensive coverage, and approved for ESO coverage only.
Id. at 3 (Page ID #838). Denial of comprehensive
coverage occurred without a reasonable opportunity to provide
documents verifying an applicant's eligible status.
these applicants were named plaintiffs Unan and Quintino.
Their cases are nearly identical. Unan, a refugee, applied
for Medicaid on April 2, 2014. Quintino, who became a legal
permanent resident in 1998, applied for Medicaid on April 1,
2014. Neither Unan nor Quintino was asked for documentation
of her immigration status, although each had previously
provided such proof of status for her food assistance case.
Each received a Health Coverage Determination Notice
indicating that she had been approved for ESO Medicaid. The
letters did not include any language regarding denial of
comprehensive Medicaid coverage. R. 28‒3 (Health Care
Determination Notices) (Page ID #976‒83).
September 8, 2014, Unan and Quintino filed a class-action
lawsuit for declaratory and injunctive relief against Nick
Lyon, the Director of DHHS,  alleging that defendant (1)
failed promptly to provide comprehensive Medicaid to
plaintiffs pursuant to 42 U.S.C. § 1396a(a)(8), 10(A)
(Count I); (2) failed to provide comprehensive Medicaid to
plaintiffs pending a reasonable opportunity to verify
plaintiffs' immigration status pursuant to 42 U.S.C.
§§ 1396a(a)(8), 1320b‒ 7(d)(4)(A) (Counts II
and III); and (3) failed to provide plaintiffs with adequate
notice and a meaningful opportunity to be heard regarding the
denial of comprehensive Medicaid pursuant to 42 U.S.C. §
1396a(a)(3) and the Due Process Clause of the Fourteenth
Amendment (Counts IV and V). On the same date, plaintiffs
filed a motion for preliminary injunction and a motion for
days after the complaint was filed, Unan and Quintino were
both determined by DHHS to be eligible for comprehensive
Medicaid coverage retroactive to April 1, 2014. On August 2,
2014, DHHS, while working to correct the systemic computer
problem, began approving for full Medicaid individual
applicants who attested to eligible immigration status. R.
22‒6 (Hundley Aff. at 3) (Page ID #838). DHHS applied
other temporary fixes throughout November, and by the end of
December, had reprocessed well over 16, 000 cases in addition
to those corrected manually. R. 69‒10 (Woods Aff., Exh.
B at 2‒3) (Page ID #1755‒56). Defendant claims
that a "permanent correction for the ESO issue" was
implemented by December 30, 2014. R. 45 (Def. Reply in
Support of First Mot. to Dismiss and/or for Summ. J. at 2)
(Page ID #1216).
March 24, 2015, the district court ordered the parties to
prepare revised notices for Medicaid applicants, and held in
abeyance plaintiffs' motions for preliminary injunction
and class certification. R. 46 (Dist. Ct. Order Denying Mot.
to Dismiss) (Page ID #1247‒48). On July 23, 2015, the
district court stayed discovery pending resolution of
dispositive motions. Both parties filed cross-motions for
summary judgment on August 31, 2015, and a hearing was held
on October 8, 2015. R. 69 (Def. Second Mot. to Dismiss and/or
for Summ. J.) (Page ID #1624- 73); R. 70 (Pls. Mot. for Summ.
J.) (Page ID #1780-826). On January 11, 2016, the district
court granted defendant's motion for summary judgment,
denied plaintiffs' motion for summary judgment, and
entered judgment for defendant. R. 83 (Dist. Ct. Order at 33)
(Page ID #2443). Plaintiffs' motions for class
certification and preliminary injunction were dismissed as
moot. Plaintiffs filed a timely notice of appeal.
Standard of Review
court reviews jurisdictional issues de novo. Demis v.
Sniezek, 558 F.3d 508, 512 (6th Cir. 2009). It is well
established that a federal court must determine
jurisdictional questions before proceeding to the merits.
Children's Hosp. Med. Ctr. of Akron v. Youngstown
Assocs. in Radiology, Inc., 612 F.App'x 836, 837
(6th Cir. 2015) (citing Steel Co. v. Citizens for a
Better Env't, 523 U.S. 83, 111 (1998)). The Supreme
Court has made clear that Article III requires that "an
actual controversy must be extant at all stages of review,
not merely at the time the complaint is filed."
Preiser v. Newkirk, 422 U.S. 395, 401 (1975)
(quotation marks omitted). A case may therefore become moot
"when the issues presented are no longer 'live'
or the parties lack a legally cognizable interest in the
outcome." U.S. Parole Comm'n v. Geraghty,
445 U.S. 388, 396 (1980) (quoting Powell v.
McCormack, 395 U.S. 486, 496 (1969)).
doctrine, however, is "flexible" in the case of
class actions. Wilson v. Gordon, 822 F.3d 934, 942
(6th Cir. 2016) (quoting Geraghty, 445 U.S. at 400).
In general, "[o]nce a class is
certified, the mooting of the named plaintiff's
claim does not moot the action, [and] the court continues to
have jurisdiction to hear the merits of the action if a
controversy between any class member and the defendant
exists." Brunet v. City of Columbus, 1 F.3d
390, 399 (6th Cir. 1993). Although dismissal is ordinarily
required when the named plaintiff's claim becomes moot
before certification, we have recognized some
exceptions to this general rule. Wilson, 822 F.3d at
942. The plaintiffs argue that two such exceptions apply in
this case, namely, the "picking off" exception and
the "inherently transitory" exception.
Appellants' Br. at 39-47. We consider each in turn.
B. Named plaintiffs' individual claims are not
"Picking off" exception
parties do not dispute that the named plaintiffs'
individual claims became moot when, two days after the
complaint was filed, they were approved for comprehensive
Medicaid coverage retroactive to the date of their
applications. Appellants' Br. at 36; Appellee's Br.
at 23. Plaintiffs argue, however that defendant cannot avoid
litigation by strategically "picking off" named
plaintiffs and settling their individual claims.
Appellants' Br. at 39.
"picking off" exception was developed to prevent
defendants from strategically avoiding litigation by settling
or buying off individual named plaintiffs in a way that
"would be contrary to sound judicial
administration." Deposit Guar. Nat'l Bank v.
Roper, 445 U.S. 326, 339 (1980). We need not wait until
after class certification has been denied to apply this
exception. Our cases recognize this exception even when a
motion for class certification is still pending, because
"the defendant is on notice that the named plaintiff
wishes to proceed as a class, and the concern that the
defendant therefore might strategically seek to avoid that
possibility exists." Wilson, 822 F.3d at 947;
see also Brunet, 1 F.3d at 400 ("If a tender
made to the individual plaintiff while the motion for
certification is pending could prevent the courts from ever
reaching the class action issues, that opportunity is at the
mercy of a defendant, even in cases where a class action
would be most clearly appropriate") (quoting Susman
v. Lincoln Am. Corp., 587 F.2d 866, 870 (7th Cir.
recently had an opportunity to address the "picking
off" exception in Wilson, a case strikingly
similar to the one before us. In Wilson, eleven
named plaintiffs filed a class action complaint against
various state officials charged with administering TennCare,
Tennessee's Medicaid program. 822 F.3d at 940-41. The
plaintiffs alleged that as a result of problems relating to
ACA-mandated updates to TennCare's computer system,
plaintiffs experienced delays in their Medicaid eligibility
determinations and did not receive fair hearings on those
delays. Id. at 941. A day before the hearing on
class certification, the State enrolled all named plaintiffs,
as well as 100 other class members, in TennCare. Id.
We held that the "picking off" exception applied,
and pointed to the timing and method of relief to support our
conclusion. Id. at 950-51.
Specifically, we found it relevant that the individual claims
were mooted on the eve of a hearing on the motion for class
certification, and not before filing, despite the fact that
plaintiffs had brought four similar cases to the State's
attention before the lawsuit was filed. Id. at 950
("The exact timing of when the last claim of a class
member identified by Plaintiffs was mooted . . . would also
support a finding of motive."). Moreover, we noted that
the claims did not become moot "through an established,
standard procedure such that it might more clearly be
characterized as 'incidental' or 'a matter of
standard operating procedure.'" Id.
(citations omitted). Rather, "the State created a new,
ad hoc process, " providing further support for the
inference that the state was attempting to avoid a class
action. Id. at 951.
is sufficient evidence to support applying the "picking
off" exception in this case. As was the case in
Wilson, the timing here is suspect. The individual
claims of the named plaintiffs were not resolved until after
the lawsuit and contemporaneous motion for class
certification were filed, despite the fact that the State, by
its own admission, became aware of the systemic issue as
early as April 14, 2014, nearly five months prior to the
initiation of this action. R. 22-6 (Hundley Aff. at 3) (Page
ID #838). Defendant also quickly moved to moot the claims of
Maria Vargas, a putative class member, as soon as she was
identified in a motion to intervene as a potential
representative. Appellants' Br. at 42. Although
Vargas's claim was immediately resolved, her husband, who
applied as a member of the same household on the same date as
his wife, did not receive relief until a month later, when
plaintiffs' counsel informed DHHS that Vargas's
husband was in need of medical services not available through
ESO. R. 31‒2 (Emails from Counsel at 2) (Page ID
#1091). The exact timing of when these claims were mooted
supports a finding that defendant was strategically seeking
to avoid litigation by selectively resolving the claims of
any potential representatives as soon as they became known to
defendant demonstrate that plaintiffs' claims became moot
through an established, standardized procedure. The failure
simultaneously to resolve the claims of all members of the
Vargas household is evidence of this. See
Appellants' Br. at 42. Rather, defendant, like the
defendants in Wilson, created a new ad hoc process
and mooted the individual named plaintiffs' claims on a
case-by-case basis after they were identified in this
lawsuit. Wilson, 822 F.3d at 951. Although the
dissent asserts that DHHS implemented a systemic fix
alongside these ad hoc changes, the fact remains that not one
of the individuals identified as a named plaintiff or
potential named plaintiff was granted relief on the basis of
a systemic fix. As was the case in Wilson, "the
State in this case did not moot Plaintiffs' claims
through an established, standard procedure such that it might
more clearly be characterized as 'incidental' or
'a matter of standard operating procedure.'"
Id. at 950 (citations omitted). The "picking
off" exception therefore should apply in this case.
"Inherently transitory" exception
next claim that the "inherently transitory"
exception to mootness also applies in this case. In order for
this exception to apply, two requirements must be met. First,
the injury must be "so transitory that it would likely
evade review by becoming moot before the district court can
rule on class certification." Wilson, 822 F.3d
at 945. ...