Barry Ex Rel. Barry v. Lyon

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 16a0208p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
WALTER BARRY, by his next friend Elaine Barry, on ┐
behalf of himself and all others similarly situated; │
DONITHA COPELAND; KENNETH L. ANDERSON; │
WESTSIDE MOTHERS, │
Plaintiffs-Appellees, │
> No. 15-1390
│
│
v.
│
│
NICK LYON, in his official capacity as Acting │
Director, Michigan Department of Human Services, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Ann Arbor.
No. 5:13-cv-13185—Judith E. Levy, District Judge.
Argued: October 6, 2015
Decided and Filed: August 25, 2016
Before:COLE, Chief Judge; DAUGHTREY and DONALD, Circuit Judges.
_________________
COUNSEL
ARGUED: Joshua S. Smith, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Appellant. Jacqueline Doig, CENTER FOR CIVIL JUSTICE, Flint,
Michigan, for Appellees. ON BRIEF: Joshua S. Smith, William R. Morris, Kristin M. Heyse,
OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellant.
Jacqueline Doig, Katie Linehan, CENTER FOR CIVIL JUSTICE, Flint, Michigan, Miriam
Aukerman, AMERICAN CIVIL LIBERTIES UNION FUND OF MICHIGAN, Grand Rapids,
Michigan, for Appellees. Martha Jane Perkins, NATIONAL HEALTH LAW PROGRAM,
INC., Carrboro, North Carolina, Valerie R. Newman, STATE PLANNING BODY, Detroit
Michigan, Thane M. Rehn, MUNGER, TOLLES & OLSON LLP, San Francisco, California, for
Amici Curiae.
1
No. 15-1390 Barry v. Lyon Page 2
_________________
OPINION
_________________
MARTHA CRAIG DAUGHTREY, Circuit Judge. This class action challenges
Michigan’s fugitive-felon law and policy, under which any person with an outstanding felony
warrant is disqualified automatically from receiving food assistance under the federal
Supplemental Nutrition Assistance Program (SNAP). This federal program is overseen by the
U.S. Department of Agriculture and administered by the states. The plaintiffs contend that
Michigan’s implementation procedure is invalid and that the notices regarding termination of
benefits sent by the authorized Michigan administrator, the defendant here, violate the SNAP
Act, 7 U.S.C. §§ 2011–2036c, and the Due Process Clause of the Fourteenth Amendment. The
district court granted summary judgment to the plaintiffs, finding that Michigan’s fugitive-felon
policy violated the Act and that the state’s notification procedure denied the recipients due
process.
On appeal, the state renews its claims that the plaintiffs lack standing, that mootness
should have deprived the district court of authority to hear the case, and that there is no private
right of action under the SNAP Act. The state also argues that the Michigan law disqualifying
fugitive felons is valid under SNAP and that its method of notifying applicants of their
disqualification is procedurally valid. We find no merit to these arguments, or to several other
lesser claims raised on appeal, and we therefore affirm the district court's opinion.
FACTUAL BACKGROUND
SNAP and Fleeing Felons
Under SNAP, an individual is ineligible to receive benefits if he or she is “fleeing to
avoid prosecution, or custody or confinement after conviction . . . for a crime, or attempt to
commit a crime, that is a felony under the law of the place from which the individual is
fleeing. . . .” 7 U.S.C. § 2015(k)(1)(A). Section 2015(k)(2) requires the Secretary of Agriculture
to define “fleeing” and “actively seeking” to “ensure that State agencies use consistent
procedures established by the Secretary that disqualify individuals whom law enforcement
No. 15-1390 Barry v. Lyon Page 3
authorities are actively seeking for the purpose of holding criminal proceedings against the
individual.” Id. § 2015(k)(2). On September 10, 2015, the Secretary finalized the rule that was
first proposed in 2011 to define these terms.1 Clarification of Eligibility of Fleeing Felons Final
Rule, 80 Fed. Reg. 54,410 (Sept. 10, 2015). It became effective on November 9, 2015. Id.; 7
C.F.R. § 273.11(n) (2015).
Previously, the states had been left to implement the “fleeing felon” disqualification on
their own. Michigan’s provision barred public assistance to any individual “subject to arrest
under an outstanding warrant arising from a felony charge against that individual.” Mich. Comp.
Laws § 400.10b.2 To effectuate this provision, Michigan developed an automated program, the
“fugitive felon interface,” that compares the list of public-assistance recipients with a list of
outstanding felony warrants maintained by the Michigan State Police in the Law Enforcement
Information Network (LEIN). Mich. Comp. Laws § 400.10c. When the program identifies a
match, it automatically closes the SNAP recipient’s file and generates a “notice of case action”
informing the recipient of the termination of benefits.
The notice reads: “You or a member of your group is not eligible for assistance due to a
criminal justice disqualification. Please contact your local law enforcement agency to resolve.”3
A Michigan Department of Health and Human Services (MDHHS) memo directs employees not
to disclose information about a recipient’s fugitive-felon status when asked about a criminal-
1
The rule provides four criteria for identifying a fleeing felon:
1. There is a felony warrant for the individual.
2. The individual is aware of the warrant or should reasonably have expected it to
issue.
3. The individual has taken some action to avoid being arrested or jailed.
4. Law enforcement is actively seeking the individual.
80 Fed. Reg. at 54,411. A state agency may adopt this test or, alternatively, may adopt the criteria set forth in the
Stipulation of Settlement in Martinez v. Astrue, No. 08-CV-04735-CW (N.D. Cal. Aug. 11, 2009), which provides
that an individual is disqualified only if a law enforcement officer presents an outstanding felony warrant for escape,
flight to avoid, or flight-escape. 7 C.F.R. § 273.11(n)(1)(ii). “Actively seeking” means that a law-enforcement
agency intends to enforce the warrant within 20 to 30 days. 7 C.F.R. § 273.11(n)(3).
2
Despite the change in the federal rule defining eligibility, § 400.10b remains unchanged, as does
§ 400.10c regarding automatic disqualification.
3
The text of this portion of the notice was later changed to “Please have the disqualified member of your
group contact a local law enforcement agency – such as a police department, sheriff’s department or the Michigan
State Police – to resolve. The law enforcement agency will require you to provide picture identification.”
No. 15-1390 Barry v. Lyon Page 4
justice disqualification but, instead, to direct the recipient to contact local law enforcement to
resolve the warrant. In the meantime, the would-be recipient remains ineligible for assistance
“as long as he or she is subject to arrest under an outstanding warrant.”
Plaintiffs
Plaintiff Walter Barry is a mentally-disabled man who lives in Detroit with his mother,
Elaine Barry. His history with the SNAP program well illustrates the difficulties that the bare-
bones Michigan system can produce, and we therefore set it out here in some detail. In 2012,
Walter was awarded $186 per month in food assistance, but in December of that year he received
notice that beginning February 1, 2013, his benefits would be terminated due to a “criminal
justice disqualification.” The notice instructed him to contact his local law enforcement agency
to resolve the issue and informed him that he had the right to a hearing. Elaine submitted the
form to request a hearing on Walter’s behalf and, in an effort to resolve the criminal-justice
disqualification, she took Walter to the Detroit Police Department. There, Officer Turner
fingerprinted him and provided a written statement confirming that Walter had no criminal
history with that department. At Walter’s MDHHS hearing on January 31, 2013, an
administrative law judge found that MDHHS could not establish the basis for Walter’s criminal-
justice disqualification and ordered Walter’s benefits reinstated immediately. The matter
appeared to be resolved, and because his benefits were to have been terminated starting on
February 1, but his hearing and reinstatement occurred on January 31, Walter did not miss any
food assistance payments.
However, on May 16, 2013, MDHHS Office of Inspector General employee Robin
Thomas submitted a statement indicating that she personally had verified through LEIN that
Walter was subject to a felony warrant issued on September 2, 1989, by the Detroit Police
Department. In a hearing summary dated May 22, 2013, Walter’s MDHHS caseworker wrote
that “there was still an outstanding warrant for this client as of 5/13/13 and the worker had to
follow procedure and close the case again.” As a result, Walter once again received a notice that
his benefits would be terminated—this time effective June 1, 2013—due to a criminal-justice
disqualification. Elaine again requested a hearing, noting in her request that an ALJ had already
found MDHHS in error. Before a hearing could occur, Walter received yet another notice on
No. 15-1390 Barry v. Lyon Page 5
June 14, 2013, informing him that his benefits would be terminated on July 1 due to a criminal-
justice disqualification. Walter filed the instant case in federal court on July 24, 2013, at which
time he had not yet received a hearing on his May 2013 request and had not received his food
benefits for July 2013.
The day after Walter filed his complaint in federal court, attorneys from the Michigan
Attorney General’s office advised him that he would receive his July food assistance benefits
that day, and he did. The Attorney General’s office also provided Walter’s attorney with
information about the warrant in his name and instructed her that Walter should go to the Detroit
Police Department to be fingerprinted. Walter was told that he could receive a password to
provide in case he was stopped on this warrant in the future. On August 7, 2013, Elaine again
took Walter to the Detroit Police Department, and once again Officer Turner issued a statement
regarding Walter’s lack of criminal history. The next day, Officer Turner discovered the case
number related to the warrant in question and issued another statement declaring specifically that
Walter was not the person wanted in that case. It turned out that Walter’s felony warrant resulted
from his brother Darryl’s use of Walter’s name as an alias when Darryl was arrested some
25 years earlier. When Elaine learned that Darryl had used Walter’s name, she intervened to
ensure that Darryl went to court under his own name.
Prior to Walter’s second hearing, scheduled for September 16, 2013, an attorney for the
state sent notice to the ALJ assigned to his case, indicating that a hearing was unnecessary and
that the case could be dismissed because MDHHS was cancelling the termination of benefits
based on information received that the warrant was not valid. Walter’s attorney objected to the
dismissal because there was no indication that the underlying problem had been resolved or that
MDHHS had changed its policy. The hearing took place as scheduled on September 16, 2013,
and the attorney for the state argued on behalf of MDHHS that the ALJ had no jurisdiction
because there was no longer an adverse action against Walter, given that the agency had placed
an override in its system to rescind the notices terminating Walter’s assistance. But the judge
noted that the override was not a resolution compliant with MDHHS policy and reversed the
state’s termination decision because MDHHS did not prove the existence of a felony warrant
against Walter.
No. 15-1390 Barry v. Lyon Page 6
Nevertheless, as of September 16, 2013, there still was a warrant in Walter’s name. In
early October 2013, an email from a Wayne County email address indicated that the case against
Walter was dismissed in 1989, that there was no outstanding warrant, and that the warrant
information would be removed from LEIN. But, on September 3, 2014, Elaine received a call
from the MDHHS Office of Inspector General who told her that Walter had outstanding warrants
that disqualified him from receiving assistance. Elaine took Walter back to the Detroit Police
Department for the third time. Officer Turner checked LEIN and found that Walter’s name still
was in the system. Officer Turner provided a fourth statement regarding Walter’s lack of
criminal history. Defense counsel represented at a hearing in district court on November 14,
2014, that all of Walter’s warrants had been resolved, but there is no evidence in the record
supporting or refuting that assertion.
Plaintiff Donitha Copeland experienced nearly as much difficulty in establishing her
eligibility for food assistance as did Walter Barry. In September 2012, Copeland had applied
and was approved for $200 of food assistance per month. In November 2012, she filed a report
with the Detroit Police Department indicating that she had been the victim of identity theft. The
next month she received a notice that her benefits would be terminated on February 1, 2013, due
to a criminal-justice disqualification. She reapplied in February 2013 but was denied.
Copeland contacted the local sheriff’s office and learned there was a warrant for her
arrest in Kalamazoo for writing bad checks, even though she had never been to Kalamazoo. She
then contacted the Kalamazoo sheriff’s office to advise that her identity had been stolen and to
ask whether she could turn herself in to the Detroit police because she did not have the means to
travel to Kalamazoo to resolve the situation. The sheriff advised her not to turn herself in to
Detroit authorities because she could end up sitting in jail for a long time before she was
transported to Kalamazoo. Eventually, Copeland obtained a pro bono criminal attorney and was
able to travel to Kalamazoo so that she could turn herself in. After spending eight hours in jail,
she was released on bond and was scheduled for a pretrial hearing. She returned to Kalamazoo
for the hearing, again with the assistance of her attorney, and the charges were dismissed after
photographic evidence established that she was not the person who had written the bad checks.
Copeland moved to Alaska in 2014 for seasonal employment but intended to return to Michigan
No. 15-1390 Barry v. Lyon Page 7
in November 2014 and expected to apply for food assistance again when she did so. It is not
clear whether she actually has returned or reapplied.
Plaintiff Kenneth Anderson, who requires oxygen 24 hours a day for chronic obstructive
pulmonary disease (COPD) and is unable to walk unassisted, had been questioned in 2009 about
drugs found in his home that belonged to his nephew. He was not arrested at that time, nor was
he told that there was a warrant for his arrest. Anderson subsequently received approximately
$200 per month in food assistance, but his case was closed in mid-2012 for failure to provide
required paperwork. When he reapplied for food assistance in December 2012, his application
was denied due to a purported criminal-justice disqualification. He spoke with his MDHHS
caseworker, who told him that he had an outstanding felony warrant, issued in January 2013 for
possession of heroin in 2009. Despite repeated attempts to reinstate his benefits, Anderson
apparently still has an outstanding criminal warrant in his name and is not receiving food
assistance.
Plaintiff Westside Mothers is a non-profit organization that advocates for the interests of
public assistance applicants and recipients in connection with public assistance programs
administered by MDHHS and the Social Security Administration. It educates its members and
the public about government benefits and what to do if assistance is denied, and it furnishes
advocacy and representation services for its members. Westside Mothers has 450 to 500 dues-
paying members, including Donitha Copeland. Here, the group challenges Michigan’s policies,
alleging that they inhibit the growth and functioning of the organization.
PROCEDURAL BACKGROUND
As previously noted, in the amended complaint that became the operative pleading in this
case, the plaintiffs challenged the automatic fugitive-felon disqualification in Michigan
Compiled Laws § 400.10b as a violation of their statutory rights under the federal SNAP Act and
alleged that the disqualification notices violated both the Act and the Due Process Clause. After
hearing oral argument on cross-motions for summary judgment, the district court granted
judgment to the plaintiffs, certifying the class and holding that the state’s policy violated the
SNAP Act and the Constitution. The court also issued an injunction requiring the state to refrain
No. 15-1390 Barry v. Lyon Page 8
from automatic disqualifications based solely on the existence of a felony warrant and to provide
adequate notices in the event of valid disqualification. Both the district court and this court
denied the state’s motions for a stay, and the district court has continued to enforce the
injunction, although the record before us does not contain information regarding the state’s
compliance. Nor does the record on appeal or the docket in the district court indicate any action
by the MDHHS to implement the new rule in 7 C.F.R. § 273.11(n), which clarifies
disqualification of fugitive felons under the SNAP Act and has been in effect since November
2015.
DISCUSSION
Threshold Issues: Standing and Mootness
The state argues that the plaintiffs lack constitutional standing to bring suit and contends
that the named plaintiffs’ claims are moot. To uphold the constitutional requirement that federal
courts hear only active cases or controversies, as required by Article III, section 2 of the federal
constitution, a plaintiff must have a personal interest at the commencement of the litigation
(standing) that continues throughout the litigation (lack of mootness). See Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992); Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),
Inc., 528 U.S. 167, 189 (2000). Standing is a threshold question in every federal case, and we
review jurisdictional challenges based on standing de novo. Miller v. City of Cincinnati,
622 F.3d 524, 531 (6th Cir. 2010). Plaintiffs have standing if they suffer a “concrete,”
“particularized,” and “actual” or “imminent” injury that is caused by a defendant’s conduct and
is likely to be “redressed by a favorable decision.” Lujan, 504 U.S. at 560–61.
If the plaintiff ceases to have standing such that a live case or controversy no longer
exists, the case becomes moot. See Spencer v. Kemna, 523 U.S. 1, 7 (1998). An exception to the
mootness doctrine exists for cases that are capable of repetition, yet evading review. Fed.
Election Comm’n v. Wis. Right to Life, Inc., 551 U.S. 449, 462 (2007). This exception applies if
the challenged action is too brief to be litigated fully before it concludes and if “there is a
reasonable expectation that the same complaining party will be subject to the same action again.”
Id. at 462. The party asserting the exception bears the burden of proof. Lawrence v. Blackwell,
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430 F.3d 368, 371 (6th Cir. 2005). Recurrence of the issue need not be more probable than not;
instead, the controversy must be capable of repetition. Id. (citing Honig v. Doe, 484 U.S. 305,
319 n.6 (1988)).
In this case, counsel for the state conceded at oral argument on the summary-judgment
motion that plaintiff Walter Barry had standing at the commencement of the suit, which is the
relevant time period for determining standing. See Laidlaw, 528 U.S. at 189 (defining standing
as “[t]he requisite personal interest that must exist at the commencement of the litigation”).
Although the state now attempts to breathe life back into this issue, the effort at resuscitation
plainly fails. The state has a somewhat stronger argument in regard to mootness, pointing out
that at the time of oral argument in the district court, Barry was receiving food assistance. But
the district court found that Barry could reasonably expect to encounter additional difficulties
with his benefits, based on the repeated problems he had faced in the past, including unjustified
terminations or threats of termination. The record fully supports this conclusion and is a
sufficient basis on which to conclude that the violation involved was capable of repetition but
evading review.
The state argues on appeal, as it did below, that Kenneth Anderson lacks standing
because his harm resulted from the erroneous LEIN information and his failure to request an
administrative hearing to challenge the LEIN information or to take other steps to correct the
erroneous warrant in his name, rather than from the state’s action in disqualifying him. We find
the state’s attempt to abdicate responsibility unpersuasive, however. The plaintiffs were injured
at the time the agency denied or terminated their food benefits and provided inadequate notice.
Hence, the plaintiffs’ injuries are fairly traceable to the defendant’s fugitive-felon law and
policies. See Lujan, 504 U.S. at 560. The state offers no argument to support a claim of
mootness as to this plaintiff.
The district court correctly found that Donitha Copeland had standing at the
commencement of this action but that the question of mootness in connection with her claims
was a closer one, given her relocation to Alaska during the pendency of the case. Additionally,
she no longer was listed as a fugitive felon as of September 2014. But the district court also
noted that Copeland’s absence at the time was potentially temporary and that she could be
No. 15-1390 Barry v. Lyon Page 10
subject to a fugitive-felon disqualification on her return to Michigan because the felony warrant
lodged against her had been dismissed without prejudice and could be reinstated or because her
identity has been stolen and could be used again to commit a felony, resulting in issuance of
another warrant in her name.
Although the district court was faced with a good deal of uncertainty surrounding
Copeland’s circumstances, the 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 Copeland
possibly could have found herself once again in the same situation she faced when this suit was
filed. Honig, 484 U.S. at 319 n.6; see also Roe v. Wade, 410 U.S. 113, 125 (1973) (holding that
end of pregnancy did not moot the case because the plaintiff was capable of becoming pregnant
again).
The district court held that Westside Mothers lacked independent standing but had
associational standing, which exists if an association’s members have standing; if the interests at
stake are relevant to the organization’s purpose; and if the claims and relief do not require the
participation of individual members. Laidlaw, 528 U.S. at 181. Westside Mothers meets the
second requirement because it advocates for public assistance and protests its unjustified denial.
And it meets the third requirement because the declaratory and injunctive relief sought pertains
to the state’s policy as a whole and does not require the participation of individual members to
resolve. The possible missing link is Copeland, the only named plaintiff shown by the record to
hold membership in the association. Based on our decision that she has standing, we hold that
the organization has standing also.
The Plaintiffs’ Right of Action under SNAP
The state argues on appeal, as it did below, that neither the SNAP Act nor the Supremacy
Clause creates a private right of action for the plaintiffs to enforce. This contention raises issues
of statutory interpretation, which we review de novo. Ammex, Inc. v. United States, 367 F.3d
530, 533 (6th Cir. 2004).
To show that a statutory provision creates a federal right for a particular class of persons,
enforceable under § 1983, a plaintiff must demonstrate: (1) that Congress intended the provision
No. 15-1390 Barry v. Lyon Page 11
to benefit the plaintiff, (2) that the protected right is sufficiently definite for courts to enforce,
and (3) that the statute imposes a binding obligation on the states using mandatory, rather than
precatory, terms. Blessing v. Freestone, 520 U.S. 329, 340–41 (1997); Harris v. Olszewski,
442 F.3d 456, 461 (6th Cir. 2006). “Once a plaintiff demonstrates that a statute confers an
individual right, the right is presumptively enforceable by § 1983.” Gonzaga Univ. v. Doe,
536 U.S. 273, 284 (2002) (footnote omitted). However, the defendant may rebut this
presumption by showing that Congress did not intend private enforcement of that right; such
intent may be found in the language of the statute or inferred from Congress’s creation of an
incompatible comprehensive enforcement scheme. Harris, 442 F.3d at 461.
We are directed by case law to analyze the specific statutory provisions at issue. See
John B. v. Goetz, 626 F.3d 356, 362 (6th Cir. 2010) (holding that the private-right-of-action
analysis focuses on the individual provision of the statute at issue, not the statute as a whole); see
also Blessing, 520 U.S. at 342–45 (explaining that the Supreme Court’s rights-creation analyses
have focused on a specific statutory provision or right, not on whether an entire statute creates
rights, in general). The relevant SNAP provisions at issue here are 7 U.S.C. §§ 2014(a) and
2020(e)(10), both of which grant certain rights of assistance to eligible “households”
participating in the Act’s “supplemental nutrition program.”
The first provision, 7 U.S.C. § 2014(a), grants a right to food assistance to households
that meet federally-established eligibility criteria: “Assistance under this program shall be
furnished to all eligible households who make application for such participation.” The district
court correctly found that this language reflects legislative intent to create a privately enforceable
right of action, rejecting the state’s argument that use of the term “household” indicates that
Congress did not intend to confer a private right on an “individual.” As the district court noted,
in the context of the SNAP Act, a household is, in effect, the “individual” with enforceable rights
because SNAP benefits are issued to households, not to individuals. Moreover, the statutory
term “eligible households” identifies a “class of beneficiaries” with “individual entitlements” to
food assistance, which entitlements are “amenable to judicial remedy”—intrinsic attributes of a
No. 15-1390 Barry v. Lyon Page 12
privately enforceable statutory right as recognized in Westside Mothers v. Olszewski, 454 F.3d
532, 543 (6th Cir. 2006).4
The other statutory provision relied on by plaintiffs, 7 U.S.C. § 2020(e)(10), substantially
buttresses our analysis of § 2014(a). It creates certain due-process rights to SNAP beneficiaries:
“The State plan . . . shall provide . . . for the granting of a fair hearing and a prompt
determination thereafter to any household aggrieved by the action of the State agency under any
provision of its plan of operation as it affects the participation of such household in the
supplemental nutrition assistance program . . . .” We need only note that we have held that a
virtually identical provision in the Medicaid Act creates a privately enforceable right. In Gean v.
Hattaway, 330 F.3d 758 (6th Cir. 2003), we reviewed 42 U.S.C. § 1396a(a)(3), which reads: “A
State plan for medical assistance must . . . provide for granting an opportunity for a fair hearing
before the State agency to any individual whose claim for medical assistance under the plan is
denied or is not acted upon with reasonable promptness.” Focusing on the state’s obligation to
provide a “fair hearing,” we noted that “the judiciary regularly determines whether an individual
has been afforded procedural due process rights,” and we concluded that “a right to a fair hearing
is not so vague and amorphous that its enforcement is beyond the abilities of a competent
judiciary.” Gean, 330 F.3d at 773. As a result, we held, “it is proper for plaintiffs to bring their
claim for enforcement of their Medicaid rights under § 1983.” Id. The same analysis of the
SNAP statutes in this case obviously leads to the same result, i.e., that the plaintiffs and similarly
situated SNAP beneficiaries possess the right of private enforcement, as the district court held.
The Right to Receive Benefits
The SNAP Act disqualifies “fleeing felons” from food assistance if they are “fleeing to
avoid prosecution or confinement after conviction . . . for a crime, or attempt to commit a crime,
that is a felony under the law of the place from which the individual is fleeing,” or are “violating
a condition of probation or parole,” and if they are “individuals whom law enforcement
4
In Westside Mothers, we distinguished the “broad and nonspecific language” of 42 U.S.C. § 1396a(a)(30),
which describes the Medicaid program to be implemented by the states, from the provision regarding specific
notifications to be provided to Medicaid recipients under 42 U.S.C. § 1396a(a)(43)(A). The former provision
creates no right of private enforcement, but merely sets up “‘a yardstick for the Secretary to measure the systemwide
performance of a State’s [Medicaid] program.’” 454 F.3d at 543 (quoting Blessing, 520 U.S. at 330). The latter
creates a privately enforceable right, subject to redress under § 1983.
No. 15-1390 Barry v. Lyon Page 13
authorities are actively seeking for the purpose of holding criminal proceedings” against them.
7 U.S.C. § 2015(k)(1) and (2). But despite the fact that the statute also forbids the state agencies
implementing the Act from “impos[ing] any other standards of eligibility as a condition for
participating in the program,” 7 U.S.C. § 2014(b), Michigan denies food assistance to an
otherwise eligible household merely upon receiving information that a member of the household
“is subject to arrest under an outstanding warrant arising from a felony charge.” Mich. Comp.
Laws § 400.10b(1). Under § 400.10(c), the state uses an automated program to compare the list
of public assistance recipients with information regarding outstanding felony warrants in the
hands of Michigan law enforcement agencies. And, although the state statute directs MDHHS to
“take all reasonable and necessary measures using the available technology to ensure the
accuracy of this comparison before notifying a local office of an outstanding felony warrant or
extradition warrant,” Mich. Comp. Laws § 400.10c(1), there is no directive to determine whether
the putative felon is being “actively sought” for prosecution before his or her name is deleted
automatically from the list of eligible recipients.
The district court correctly found that Mich. Comp. Laws § 400.10b and the policy
implementing it violated 7 U.S.C. §§ 2014(b) and 2020(e)(5) by adding requirements for
disqualification not found in § 2015(k), i.e., the existence of an outstanding felony warrant,
without more, and entered summary judgment for the plaintiffs. The court recognized, by
analogy to identical provisions in the Social Security Act, that “fleeing to avoid prosecution”
incorporates an element of intent, noting, for example, that “[c]ourts . . . have found the mere
existence of an outstanding felony warrant insufficient to show that a person is fleeing and
therefore disqualified from receiving SSI benefits.” Barry v. Corrigan, 79 F. Supp. 3d 712, 750
(E.D. Mich. 2015) (citing Fowlkes v. Adamec, 432 F.3d 90, 96 (2nd Cir. 2005) (“The statute does
not permit the Commissioner to conclude simply from the fact that there is an outstanding
warrant for a person’s arrest that he is fleeing to avoid prosecution.”)).
The court was equally correct in finding that the state had deprived the plaintiffs of their
right to assistance under the SNAP Act based on what was missing from Michigan law, i.e., the
conditions precedent to valid disqualification under federal law: the felon in question must be
(1) actively “fleeing” (2) to avoid prosecution for a crime that is a felony “under the law of the
No. 15-1390 Barry v. Lyon Page 14
place from which the individual is fleeing,” and the authorities must be (3) “actively seeking” to
prosecute him or her for the offense.5 The district court correctly declared invalid the Michigan
fugitive-felon policy and the portions of Michigan statutes on which the policy was based,
entered summary judgment for the plaintiffs, and enjoined the state from automatically
disqualifying plaintiffs and other class members from receiving SNAP benefits based solely on
an outstanding felony warrant.
The Right to Notice and a Hearing
The district court also determined that the form of the disqualification notice sent by the
state was inadequate under the Due Process Clause of the Fourteenth Amendment and
§ 2020(e)(10) of the SNAP Act and its implementing regulations, 7 C.F.R. §§ 273.10(g) and
273.13(a). All the plaintiffs in this case received the same notice, giving as the reason for their
disqualification: “You or a member of your group is not eligible for assistance due to a criminal
justice disqualification. Please contact your local law enforcement agency to resolve.” The state
argues on appeal, as it did below, that the notices were adequate to comply with due process.
The district court’s grant of summary judgment and its resolution of legal questions are reviewed
de novo, and the district court’s factual findings are accepted unless they are clearly erroneous.
TransAmerica Assurance Corp. v. Settlement Capital Corp., 489 F.3d 256, 259 (6th Cir. 2007).
The state does not challenge the district court’s statement of the constitutional due-
process standard applicable here: “The notice must comprise ‘(1) a detailed statement of the
intended action . . . (2) the reason for the change in status . . . (3) citation to the specific statutory
section requiring reduction or termination; and (4) specific notice of the recipient’s right to
appeal.’” Barry, 79 F. Supp. 3d at 741 (citing Garrett v. Puett, 707 F.2d 930, 931 (6th Cir.
1983)). The court found that the fourth factor had been met but that the first and second were the
5
The district court also found that preemption principles provided a second, independent basis for finding
Michigan’s law and policy invalid. Because we conclude that the court’s initial determination was correct, we
pretermit discussion of the alternative ground.
No. 15-1390 Barry v. Lyon Page 15
crux of the issue and were lacking. It did not reach a conclusion regarding the third factor, but
that one, too, appears to be missing.6
The district court’s analysis of the first and second Garrett factors is persuasive and
thorough:
The notices state the intended action—denial or reduction of benefits. For
example, the May 16, 2013 notice sent to Barry provides, under the heading
“Intended Action,” a summary of benefits—in this instance, listing “Food
Assistance Program.” The notice shows the relevant action as “closed” and states,
“[y]our ongoing benefit has been cancelled but you will continue to receive
benefits through the day before the period listed above.”
The reason given for the action is simply “You or a member of your group is not
eligible for assistance due to a criminal justice disqualification.” This fails to
indicate whose conduct is at issue. It also fails to indicate which of the five types
of criminal justice disqualifications applied by [MDHHS] is being invoked. From
at least 2012 to mid-2013, the notices referred to section 203 of the BEM, where
five types of criminal justice disqualifications from public assistance benefits
were listed. In June 2013, [MDHHS] placed the fugitive felon disqualification in
its own section of the BEM (204). But the notices thereafter continue to use the
general phrase “criminal justice disqualification.” Thus, a notice recipient must
still be able to (1) determine that “BEM 204” refers to the Bridges Eligibility
Manual, section 204, (2) determine that the relevant type of criminal justice
disqualification can be found there, and (3) get access to the BEM. Even if a
notice recipient locates a copy of the BEM and determines the type of
disqualification, he or she still does not know anything about the outstanding
warrant—not the underlying charge, nor which law enforcement agency issued
the warrant. The recipient thus has no basis for making an informed decision
whether to contest the disqualification, nor what issues need to be addressed at a
hearing.
Defendant maintains that notice recipients could call the [MDHHS] contact
person and number listed on the notice to receive further information regarding
their disqualification. But defendant cannot satisfy due process by requiring
notice recipients to call elsewhere. See Boatman v. Hammons, 164 F.3d 286, 290
(6th Cir. 1998). Moreover, in this instance such a call would be fruitless:
[MDHHS] staff are instructed “not to disclose ‘Fugitive Felon’ status information
to the individual.”
6
The third factor does not appear to be met here because the notice cited only to the “BEM,” not to the
specific statutory section. Although this document does contain citations to the statute, successfully tracking down
this information would, as the district court noted, require the recipient of a notice to figure out that BEM means
Bridges Eligibility Manual and then to acquire a copy of the relevant section.
No. 15-1390 Barry v. Lyon Page 16
Defendant further maintains that notice recipients can obtain the necessary
information by contacting law enforcement. This is potentially as ineffective as
contacting [MDHHS], as the named plaintiffs’ experiences shows. Law
enforcement may not be able to determine which warrant is causing the
disqualification, as happened in Barry’s case. He discovered the existence of the
first outstanding warrant only through defendant’s intervention.
*****
Defendant relies primarily on Rosen v. Goetz, 410 F.3d 919, 930-31 (6th Cir.
2005), for the proposition that due process does not require notices to include
specific, individualized reasons for benefit denial, reduction, or termination. But
defendant’s reliance is misplaced: the Rosen court held the notices in that case
adequate because “the very facts the plaintiffs claim are missing [sc. from the
termination notices] are supplied by the State through a second letter that follows
the Termination Notice and that the Termination Notice itself references and
brings to the attention of recipients.” 410 F.3d at 931. While defendant is
technically correct that the notice itself does not need to include specific,
individualized reasons for the agency action, those details must nonetheless be
provided in some form. See id. (“Due process does not require ‘reasonably
calculated’ notice to come in just one letter, as opposed to two.”). Unlike in
Rosen, they were not provided here.
*****
The notice here similarly fails to inform recipients what they must do to lift the
disqualification. If a recipient “resolves” the disqualification, benefits are
automatically reinstated only if other household members are “active” — i.e.,
continue to receive the type of assistance from which the notice recipient has been
disqualified. Otherwise, a disqualified individual must not only “resolve” the
criminal justice disqualification with law enforcement, but must also reapply for
benefits. The notice fails to communicate this information. The notice also fails
to make clear whether a hearing request is necessary to resolve disqualifications,
even if the issue is resolved with law enforcement.
Barry, 79 F. Supp. 3d at 742-44 (citations to the district court record omitted). It is sufficient to
note that none of the state’s arguments on appeal call into question any part of the district court's
well-analyzed decision. Because we agree that the notices sent by the state violated the
recipient’s constitutional right of due process, we need not address their invalidity under the
SNAP Act, although we note that the analysis would be the same.
No. 15-1390 Barry v. Lyon Page 17
Injunctive Relief
The state next complains that the district court erred by granting a permanent injunction
without addressing the “well-established” four-factor test that requires a plaintiff seeking
injunctive relief to establish: “(1) that it has suffered an irreparable injury; (2) that remedies
available at law . . . are inadequate to compensate for that injury; (3) that, considering the
balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and
(4) that the public interest would not be disserved by a permanent injunction.” eBay Inc. v.
MercExchange, LLC, 547 U.S. 388, 391 (2006). The result, the state argues, is that upon review,
we may do no more than “speculate about the basis for the district court's decision.” To the
contrary, however, we think speculation is wholly unwarranted, given the district court's
thorough and detailed 97-page explanation of why the injunction was appropriate—indeed, why
it was necessary—and precisely what action the state was required to undertake. The opinion
may not have set out the equitable factors explicitly but, more importantly, the district court fully
complied with the non-equitable requirements of Federal Rule of Civil Procedure 65(d)(1),
pursuant to which “[e]very order granting an injunction and every restraining order must: (A)
state the reasons why it issued; (B) state its terms specifically; and (C) describe in reasonable
detail—and not by referring to the complaint or other document—the act or acts restrained or
required.” The opinion likewise complied with Federal Rule of Civil Procedure 52(a)(1) and (2),
which provides that “[i]n an action tried on the facts without a jury,” including the grant or denial
of an interlocutory injunction, the district court “must find the facts specially and state its
conclusions of law separately.” Rather than complain that the four factors of the traditional
equitable test were not explicitly articulated, the state should have set out which of the four areas
purportedly were not covered in the court’s opinion, so that we might review any deficiency. In
the absence of a specific argument that would establish error on the part of the district court, we
find none.
Class Certification
A district court’s decision to certify a class is reviewed for abuse of discretion. Beattie v.
CenturyTel, Inc., 511 F.3d 554, 559 (6th Cir. 2007). “The district court maintains substantial
discretion in determining whether to certify a class, as it possesses the inherent power to manage
No. 15-1390 Barry v. Lyon Page 18
and control its own pending litigation.” Reeb v. Ohio Dept. of Rehab. & Corr., 435 F.3d 639,
643 (6th Cir. 2006). “A district court abuses its discretion when it relies on erroneous findings of
fact, applies the wrong legal standard, misapplies the correct legal standard when reaching a
conclusion, or makes a clear error of judgment.” Beattie, 511 F.3d at 560 (internal quotation
marks and citation omitted).
In this case, the district court certified both a class7 and a subclass8 and, the record
reflects, applied the correct legal standards when it analyzed whether the proposed classes were
ascertainable, whether the numerosity, commonality, typicality, and adequacy requirements of
Federal Rule of Civil Procedure 23(a) were met, and whether the defendant “acted or refused to
act on grounds that apply generally to the class, so that final injunctive relief or corresponding
declaratory relief is appropriate respecting the class as a whole,” as required by Rule 23(b)(2).
The state does not contend otherwise. Instead, the state’s arguments against class
certification rely principally on its perception that the inaccurate LEIN information and the
plaintiffs’ failure to challenge it were the sources of the plaintiffs’ harm, not any state action.
The district court correctly rejected this argument, ruling that “[t]he injuries plaintiffs allege—
inadequate notice and disqualification without a determination that they are fleeing to avoid
prosecution and are actively sought by law enforcement—are legally cognizable injuries,” and
that “what defendant terms the ‘real’ harm—erroneous LEIN records—caused no harm to
7
[A]ll past, present, and future applicants for, or recipients of, benefits administered by the Michigan
Department of Human Services (DHS) under the
 Food Assistance Program (FAP)
 Family Independence Program (FIP)
 State Disability Assistance Program (SDA)
 Child Development and Care Program (CDC), and
 Refugee Assistance Program (RAP)
public assistance programs, who have suffered or will suffer actual or threatened denial, termination, or reduction of
public assistance benefits based on DHS’ determination that the applicant / recipient or a member of the applicant /
recipient’s household is ineligible based on a criminal justice disqualification, and who receive or have received a
written notice at the time of denial issued by DHS informing the applicant / recipient of the criminal justice
disqualification.
8
All past, present, and future applicants for, or recipients of, Michigan’s Food Assistance Program benefits,
who have suffered or will suffer actual or threatened denial, termination, or reduction of Food Assistance Program
benefits based on DHS’s policy of disqualifying individuals as “fugitive felons,” without a finding that the
individual is intentionally fleeing from justice to avoid prosecution, or custody or confinement after conviction,
and/or without finding that the individual is actively sought by law enforcement, for a crime that is a felony.
No. 15-1390 Barry v. Lyon Page 19
plaintiffs until defendant used the LEIN records to disqualify plaintiffs from food assistance
benefits . . . . In other words, the question of whether the disqualification is lawful is different
from the question of whether the LEIN records are accurate.” Barry, 79 F. Supp. 3d at 730.
On appeal, the state presses the same contentions that the district court rejected, including
many arguments previously addressed in our analyses of standing and mootness, above. We
decline to reiterate our legal conclusions in this regard. To the extent that the subclass includes
persons who are actually felons who are intentionally fleeing and are actively being sought for
prosecution, they might now lack substantive claims but could still advance a due process
argument. That possibility does nothing to undermine the district court's class certification.
Procedural Motions
Finally, the state assails several rulings by the district court in connection with the state’s
motion to reconsider the court’s grant of summary judgment and with the plaintiffs’ motions to
strike exhibits attached to the motion to reconsider. The district court struck three of the four
exhibits, finding, first, that they constituted new evidence that could have been presented before
the court announced judgment and, additionally, that they would not affected the outcome even if
they had been timely proffered. There was no abuse of discretion involved in any of these
procedural rulings. See Seay v. Tenn. Valley Auth., 339 F.3d 454, 480 (6th Cir. 2003) (“We
review the decision to grant or deny a motion to strike for an abuse of discretion, and decisions
that are reasonable, that is, not arbitrary, will not be overturned.”)
The state also complains that the district court relied on a “novel hearsay theory” when it
concluded that one of the affidavits the state submitted in support of the motion for
reconsideration constituted hearsay and could not be considered. Apparently the defendant
reasons that because Federal Rule of Civil Procedure 56(c)(1)(A) requires a motion for summary
judgment to be accompanied by affidavits, the affidavits submitted in support of summary
judgment cannot be deemed to be hearsay. However, we have recognized that if such affidavits
contain hearsay, they may not be considered unless the hearsay evidence could be presented in
an admissible form at trial. See N. Am. Specialty Ins. Co. v. Myers, 111 F.3d 1273, 1283 (6th
Cir. 1997). Here, the district court did not abuse its discretion by striking evidence it deemed to
No. 15-1390 Barry v. Lyon Page 20
be inadmissible hearsay. The state also complains for the first time on appeal that the district
court did not also find the plaintiffs’ affidavits to contain hearsay, but the state raises this
argument much too late to be considered here. See Bailey v. Floyd Cnty. Bd. of Educ. By and
Through Towler, 106 F.3d 135, 143 (6th Cir. 1997) (“It is well-settled that this court will not
consider arguments raised for the first time on appeal unless our failure to consider the issue will
result in a plain miscarriage of justice.”).
Nor did the district court abuse its discretion in denying the state’s motion for
reconsideration. The court determined that none of the issues was properly before it but
nevertheless addressed each of the issues raised and rejected them on the merits. The procedural
and substantive reasons given by the district court for denying reconsideration were valid, and
the state has failed to provide any argument supporting its bare assertion that the district court’s
refusal to grant reconsideration was an abuse of discretion.
CONCLUSION
For the reasons set out above we AFFIRM the district court's judgment. We also
REMAND the case to allow the district court to continue to enforce the permanent injunction
and to consider any relevant action by the state in light of the Secretary’s Clarification of
Eligibility of Fleeing Felons Final Rule, 7 C.F.R. § 273.11(n), which took effect on November 9,
2015. For the district court’s benefit, we note that the new rule will not render this case moot,
because it is still possible that a recipient of SNAP benefits might have those benefits wrongfully
terminated.