RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 23a0125p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PATTI JO CAHOO, KRISTIN MENDYK, and KHADIJA COLE,

individuals and on behalf of others similarly situated; 

HYON PAK; MICHELLE DAVISON,

Plaintiffs-Appellees (21-1407),

v.

SAS INSTITUTE, INC. fka SAS Analytics Inc.,

Defendant,

FAST ENTERPRISES, LLC; CSG GOVERNMENT SOLUTIONS,

Defendants-Appellees (21-2672),

STEVEN GESKEY; SHARON MOFFETT-MASSEY,

Defendants-Appellants (21-1407),

Defendants-Appellees (21-2672),

SUZETTE MARIE HEATHCOTE,

Proposed Intervenor-Appellant (21-2672).

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Nos. 21-1407/2672

Appeal from the United States District Court for the Eastern District of Michigan at Detroit.

No. 2:17-cv-10657—David M. Lawson, District Judge.

Case 21-1407 Argued: April 26, 2023

Decided and Filed: June 15, 2023

Before: SUTTON, Chief Judge; BATCHELDER and MURPHY, Circuit Judges.

>
Nos. 21-1407/2672 Cahoo, et al. v. SAS Inst., Inc., et al. Page 2

_________________

COUNSEL

ARGUED: Jason Hawkins, Debbie K. Taylor, Kimberly K. Pendrick, OFFICE OF THE 

MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Steven Geskey and Sharon 

Moffett-Massey. Kevin S. Ernst, ERNST CHARAR & LOVELL, PLC, Detroit, Michigan, for 

Patti Jo Cahoo, Kristin Mendyk, Khadija Cole, Hyon Pak, and Michelle Davison. ON BRIEF: 

Jason Hawkins, Debbie K. Taylor, Kimberly K. Pendrick, OFFICE OF THE MICHIGAN 

ATTORNEY GENERAL, Lansing, Michigan, for Steven Geskey and Sharon Moffett-Massey. 

Kevin S. Ernst, Hannah R. Fielstra, ERNST CHARAR & LOVELL, PLC, Detroit, Michigan, for 

Patti Jo Cahoo, Kristin Mendyk, Khadija Cole, Hyon Pak, and Michelle Davison. David M. 

Blanchard, BLANCHARD & WALKER PLLC, Ann Arbor, Michigan, for Suzette Marie 

Heathcote. Stephen J. Rosenfeld, MCDONALD HOPKINS LLC, Chicago, Illinois, for CSG 

Government Solutions. Erik F. Stidham, HOLLAND & HART LLP, Boise, Idaho, Walter J. 

Piszczatowski, HERTZ SCHRAM PC, Bloomfield Hills, Michigan, for Fast Enterprises, LLC.

SUTTON, C.J., delivered the opinion of the court in which MURPHY, J., joined in full. 

BATCHELDER, J. (pp. 19–38), delivered a separate opinion concurring in part and dissenting in 

part.

_________________

OPINION

_________________

SUTTON, Chief Judge. The modernization of Michigan’s process for identifying fraud 

in unemployment benefits, according to four residents of the State, came with a cost: It 

undermined their due process rights. The four residents all obtained unemployment benefits, and 

the State’s new software for identifying unemployment fraud targeted them but did not 

immediately deprive them of any benefits. They sued two Unemployment Insurance Agency 

supervisors, among many others. In the first stage of this case, the complaint and proffered class 

action covered claims in which the State terminated welfare payments without adequate notice 

and a hearing. But at this stage in the case, after the denial of a motion to certify a class and with 

just four plaintiffs remaining, the lawsuit covers only claims in which the State offers several 

procedural protections before any elimination of benefits. Because the remaining plaintiffs have 

failed to show that these procedures violate any clearly established law, the supervisors are 

entitled to judgment as a matter of law. Suzette Heathcote separately appeals the denial of her 
Nos. 21-1407/2672 Cahoo, et al. v. SAS Inst., Inc., et al. Page 3

motion to intervene in the case. Because the district court did not abuse its discretion in finding 

her motion untimely, we affirm that order.

I.

According to the district court and the relevant statute, this is what happened. Cahoo v. 

Fast Enters. LLC, 528 F. Supp. 3d 719, 728 (E.D. Mich. 2021) (incorporating by reference 

Cahoo v. Fast Enters. LLC, 508 F. Supp. 3d 162 (E.D. Mich. 2020)). Out-of-work residents of 

Michigan may claim unemployment benefits if they meet certain eligibility criteria. Mich. 

Comp. Laws § 421.28. The State’s Unemployment Insurance Agency oversees the benefits 

system. Cahoo, 528 F. Supp. 3d at 726–27; Cahoo, 508 F. Supp. 3d at 166. 

In 2011, with the help of private contractors, the Agency began to develop software to 

administer the unemployment system. Cahoo, 508 F. Supp. 3d at 168. The Agency sought to 

equip the software to auto-adjudicate as many parts of the claims process as possible. See id. at 

167. Clayton Tierney, the director of the office of technology and modernization, “spearheaded” 

the project. Cahoo, 528 F. Supp. 3d at 728. Agency staff broke into teams, many of which fell 

under Tierney’s oversight, to tackle different parts of the modernization effort. Id.; cf. id. at 749. 

The non-monetary team was particularly prolific. See id. at 728–30. Headed by Susan Easton, it 

drafted many of the forms that the software would automatically send to claimants over the life 

cycle of a claim. Id. These included a fact-finding questionnaire to send to claimants after the 

software flagged their claims for fraud, id. at 729; Cahoo, 508 F. Supp. 3d at 167, and notices of 

determination alerting claimants to fraud findings and outlining their right to appeal those 

findings, Cahoo, 528 F. Supp. 3d at 729; Cahoo, 508 F. Supp. 3d at 167–68. 

The Agency programmed software that used logic trees to help process cases and identify 

fraud. Cahoo, 508 F. Supp. 3d at 167. A claimant’s failure to return the fact-finding 

questionnaire, for example, led to a fraud finding, as did the claimant’s selection of certain 

multiple-choice responses. Id. 

With these and other developments in place, the Michigan Integrated Data Automated 

System—MiDAS for short—opened for claimants in October 2013. Cahoo, 528 F. Supp. 3d at 

729. Sometime around MiDAS’s launch, Stephen Geskey took over as director of the policies 
Nos. 21-1407/2672 Cahoo, et al. v. SAS Inst., Inc., et al. Page 4

and procedures group. Id. Sharon Moffett-Massey assumed the Agency director role in April 

2014. Id. at 728.

In August 2015, problems arose with some features of the system, prompting the Agency 

to turn off the auto-adjudication feature for fraud claims. Id. at 729. Later, the U.S. Department 

of Labor and Michigan Auditor General identified issues with MiDAS, ranging from the 

questionable legality of auto-adjudication as a way to identify fraud to the merits of the logic-tree 

fraud recommendations to the vagueness of the fraud notices. Id. at 728–29. 

All of this led to today’s case—or at least to today’s chapter of the case. Patti Cahoo, 

Kristin Mendyk, Khadija Cole, and Michelle Davison (Cahoo for all) live in Michigan, they 

obtained unemployment benefits, and sometime after they stopped receiving those benefits, the 

Agency flagged their claims for fraud. Cahoo, 508 F. Supp. 3d at 170–73.

True to form, the Agency sent each plaintiff a fact-finding questionnaire with a multiplechoice question and an opportunity to provide additional information. Id. at 169–73. Then the 

Agency sent each plaintiff notices of determination. Id. at 170–73. These notices outlined the 

fraud finding, the reason why the plaintiff lacked eligibility during the benefits period, the 

relevant benefits period and employer, and a 30-day window to appeal the fraud finding. Cahoo, 

528 F. Supp. 3d at 758–59.

Under state law, each claimant had the right to a multi-level appeal process with respect 

to this fraud finding. She could request a redetermination from the Agency. Mich. Comp. Laws 

§ 421.32a (2011). Then she could appeal that redetermination to an administrative law judge. 

Id. § 421.33(1). Then she could request a rehearing from that administrative law judge. Id. 

Then she could file an appeal in the Michigan compensation appellate commission. Id.

§§ 421.33(2), 421.34. And then she could seek judicial review of the commission’s decision in 

state court. Id. § 421.38.

If the Agency did not receive a request for redetermination within 30 days, the fraud 

finding became final, ending eligibility for benefits and imposing restitution and penalties. 

Cahoo, 528 F. Supp. 3d at 730; e.g., R.423-16 at 29 (“If a protest is not received within 30 days, 

a decision will become final and restitution may be due and owing.”). But none of the plaintiffs 
Nos. 21-1407/2672 Cahoo, et al. v. SAS Inst., Inc., et al. Page 5

suffered any immediate monetary consequences. See Cahoo, 508 F. Supp. 3d at 170–73. The 

deprivation occurred months or years later through collection efforts when the State denied the 

plaintiffs new benefits, intercepted their tax refunds, or garnished their wages. See id. 

The plaintiffs filed a putative class action against three government contractors and 

nineteen Agency staffers, raising claims under the Fourth, Fifth, and Fourteenth Amendments, 

26 U.S.C. § 6402(f), and Michigan tort law. Extensive motions practice “whittled down” the 

plaintiffs, defendants, and claims. Id. at 166. Any retelling of that story in full would require 

many pages and the incorporation of many prior opinions. E.g., Cahoo, 528 F. Supp. 3d at 728 

(incorporating its prior opinion by reference). The key points for present purposes are these. 

The Agency defendants filed a motion to dismiss, which the district court denied. Cahoo v. SAS 

Inst. Inc., 322 F. Supp. 3d 772, 807 (E.D. Mich. 2018). We affirmed in part and reversed in part, 

leaving one procedural due process claim standing. Cahoo v. SAS Analytics Inc., 912 F.3d 887, 

907 (6th Cir. 2019). At that stage, we determined that the plaintiffs’ due process rights clearly 

existed because they had alleged a deprivation of their property interests without adequate notice 

and without an opportunity for a pre-deprivation hearing. Id. at 903–05.

After considerable discovery, the Agency defendants moved for summary judgment 

based on qualified immunity. Cahoo, 528 F. Supp. 3d at 727. The court granted the Agency 

defendants’ motion in part, dismissing several of them. Id. at 763. But it declined to grant 

qualified immunity to Agency supervisors Sharon Moffett-Massey and Stephen Geskey for their 

involvement with MiDAS’s questionnaires and notice forms. Id. at 749–52, 754–60. The 

district court reasoned that the questionnaires were constitutionally deficient because they did not 

set forth the alleged wrongdoing with specificity. Id. at 757. As for the notices of determination, 

the district court found that those did provide “an adequate description for why the [Agency] 

believed it overpaid claimants.” Id. at 758. But “that communication came too late” because the 

Agency “had already” deprived the plaintiffs of their property rights by terminating the right to 

benefits, demanding restitution, and applying penalties. Id. at 759. That left genuine issues of 

material fact, the court concluded, as to Moffett-Massey’s and Geskey’s role in developing these 

documents that precluded granting summary judgment on supervisory liability. Id. at 749–52. 

The two supervisors appealed. 
Nos. 21-1407/2672 Cahoo, et al. v. SAS Inst., Inc., et al. Page 6

Meanwhile, another would-be plaintiff tried to join the lawsuit. Cahoo v. Fast Enters. 

LLC, 536 F. Supp. 3d 146, 150 (E.D. Mich. 2021). Like Cahoo, Suzette Heathcote applied for 

and received unemployment benefits, then later received a fraud finding. Id. at 153. Nearly four 

years after this lawsuit began—and one month after the district court denied class certification—

Heathcote moved to intervene, seeking to raise individual claims and to bring a renewed class 

certification motion as class representative. See id. The district court denied that motion along 

with Heathcote’s motion to reconsider. Id. at 161. Heathcote appealed. 

II.

A.

Moffett-Massey and Geskey seek qualified immunity from the claimants’ due process 

claims. Two questions shape the appeal. Did Moffett-Massey and Geskey violate the claimants’ 

constitutional rights? If so, did they trespass on clearly established law? See Dist. of Columbia 

v. Wesby, 138 S. Ct. 577, 589 (2018). We “review de novo” each “legal question.” Jarvela v. 

Washtenaw County, 40 F.4th 761, 764 (6th Cir. 2022). And we may review these questions in 

any order. Pearson v. Callahan, 555 U.S. 223, 236 (2009). 

This appeal comes to us at the summary judgment stage after considerable discovery. 

With the benefit of discovery comes a burden. The plaintiffs now must identify evidence in the 

record to substantiate each claim in their complaint. Anderson v. Liberty Lobby, Inc., 477 U.S. 

242, 256 (1986). In a qualified immunity case like this one, that means the plaintiffs bear the 

burden of identifying record evidence showing a violation of their clearly established rights. 

DiLuzio v. Vill. of Yorkville, 796 F.3d 604, 608–09 (6th Cir. 2015). The plaintiffs, in other 

words, must substantiate their theories on both qualified immunity prongs with record support. 

Instead of merely showing that each claim alleged in the complaint satisfies these two prongs, as 

we decided the last time we looked at the case, they must point to record-based evidence backing 

each theory. 

We need not decide today whether the questionnaires and notices violated the Due 

Process Clause or whether a reasonable jury could find that Moffett-Massey and Geskey directed 

the development of them. Either way, the plaintiffs’ due process claims do not clear step two of 
Nos. 21-1407/2672 Cahoo, et al. v. SAS Inst., Inc., et al. Page 7

the qualified-immunity test. Consider several key developments since our prior opinion. At the 

motion to dismiss stage, we assessed a broadly framed, putative class action complaint. Cahoo,

912 F.3d at 892 n.1. Focusing on the complaint’s allegation that MiDAS failed to provide 

claimants with pre-deprivation notice or process before automatically shutting off unemployment 

benefits, garnishing wages, and seizing tax refunds, we held that the claimants had alleged a 

clearly established right to pre-deprivation notice and a hearing. Id. at 903–04. 

That conclusion stemmed from several Supreme Court cases about the midstream 

termination of welfare benefit payments and the like. See Goldberg v. Kelly, 397 U.S. 254, 264 

(1970) (requiring a hearing before terminating welfare payments); Cleveland Bd. of Educ. v. 

Loudermill, 470 U.S. 532, 542–43 (1985) (requiring a hearing before firing a public employee 

for cause); cf. Sniadach v. Fam. Fin. Corp. of Bay View, 395 U.S. 337, 342 (1969) (requiring 

notice and a hearing before garnishing wages). In the face of these precedents, we ruled that the 

novel characteristics of MiDAS—a computer prompted, as opposed to individual prompted, 

sudden termination of benefits—did not alter the inquiry. Cahoo, 912 F.3d at 904. 

Our holding also hinged on the case’s procedural posture. Courts, we pointed out, 

sometimes benefit from waiting to resolve qualified immunity until summary judgment—with 

the benefit of discovery—rather than settling the issue immediately through a motion to dismiss. 

Id. at 899, 907. Patience can be especially prudent in the due process context, where courts 

employ a three-part, broadly framed balancing test. Mathews v. Eldridge, 424 U.S. 319, 335 

(1976). Discovery sometimes yields new insights about the public and private interests at stake, 

impacting the qualified immunity inquiry. 

All things considered, we concluded in the first appeal that “any reasonable official 

would have known that depriving Plaintiffs of their protected property interests in the manner 

alleged violated their due process rights.” Cahoo, 912 F.3d at 904. At the same time, we warned 

Cahoo that she would “need to substantiate [her] allegations to survive a motion for summary 

judgment.” Id. at 901. We have no second thoughts about these conclusions.

But several features of the case have evolved over the intervening years and a “generous 

discovery period.” Cahoo, 528 F. Supp. 3d at 749. The district court denied class certification, 
Nos. 21-1407/2672 Cahoo, et al. v. SAS Inst., Inc., et al. Page 8

stripping claimants of their broad class claims and leaving four fact-specific individual claims. 

Id. at 763. The district court then dismissed all of the Agency defendants save two: MoffettMassey and Geskey. Id. (The claims against two of the private defendants remain pending.) 

The district court then confined the challenged features of MiDAS to these two Agency 

defendants to just two—the fraud questionnaires and notices—and took the auto-adjudication 

and delivery-of-notice claims off the table for purposes of this appeal. Id. at 757–60. 

Discovery also has changed the nature of the due process claim as to the remaining four 

plaintiffs. What was once a termination-of-benefits case has evolved into what is a collection-ofpaid-benefits case. As to the remaining four plaintiffs, discovery has clarified that these forms 

and appeal rights implicate pre-deprivation protections, not post-deprivation protections. We 

now know that MiDAS did not immediately deprive these plaintiffs of their property rights. No 

plaintiff lost ongoing benefit payments due to MiDAS. See Cahoo, 508 F. Supp. 3d at 170–73. 

Each of them instead received a fraud finding for a benefits period that had already ended, and 

the attendant property deprivation—the denial of new benefits, the garnishment of wages, or the 

confiscation of tax refunds—occurred months or years down the line, all implicating other 

procedural protections in place under Michigan law. See id.; Mich. Comp. Laws §§ 421.32a 

(2011), 421.33, 421.34, 421.38 (setting out a multi-stage appeal process). 

We now know that MiDAS provided the four specific plaintiffs with some notice and an 

opportunity for a hearing before any of those later property deprivations occurred. It sent factfinding questionnaires and two notices of determination to each plaintiff. See Cahoo, 508 F. 

Supp. 3d at 170–73. The questionnaires stated that claimants could submit information on top of 

answering the multiple-choice question. See R.423-16 at 27 (“You may provide a statement and 

evidence . . . .”). The two notices detailed the challenged benefits period, relevant employer, 

fraud finding, and applicable statute. As the district court put it, these notices “provided an 

adequate description” of the alleged wrongdoing. Cahoo, 528 F. Supp. 3d at 758. The notices 

also specified the process for protesting the determination, which included seeking a 

redetermination and a 30-day period before the finding became final. And if the Agency issued a 

redetermination, the accompanying notice of redetermination instructed claimants that they could 

seek a hearing before an administrative law judge, from which they had a right to appeal to the 
Nos. 21-1407/2672 Cahoo, et al. v. SAS Inst., Inc., et al. Page 9

compensation appellate commission, Mich. Comp. Laws § 421.33(2), and then to a state court of 

general jurisdiction, id. § 421.38. 

Now that we know MiDAS did not immediately terminate these plaintiffs’ ongoing 

benefit payments without pre-deprivation process, cases like Goldberg and our prior opinion do 

not tell us what to do with the remaining claims in the case. What was once relatively easy to 

answer no longer is. In today’s distinct setting, we must keep in mind that due process’s 

“flexible and fact intensive” nature makes it “less likely it will be clearly violated in a case 

without similar facts.” Cunningham v. Blackwell, 41 F.4th 530, 540 (6th Cir. 2022). That is the 

case here. The content of the two notices, the opportunity for a hearing, and the months- or 

years-long delay before these plaintiffs faced a deprivation distinguish this case from existing 

due process precedent. No case put Moffett-Massey and Geskey on notice that these predeprivation forms and appeal procedures for these plaintiffs in this context did not stack up. 

Quite a few cases suggested the contrary. See Rosen v. Goetz, 410 F.3d 919, 931 (6th Cir. 2005) 

(per curiam) (finding notice sufficient even though information came in two separate letters); 

Shoemaker v. City of Howell, 795 F.3d 553, 560 (6th Cir. 2015) (finding notice sufficient when it 

listed the relevant ordinance and nature of the violation); DePiero v. City of Macedonia, 180 

F.3d 770, 787–88 (6th Cir. 1999) (reasoning inadequacy of notice was counterbalanced by 

opportunity to attend hearing prior to deprivation of liberty); Herrada v. City of Detroit, 275 F.3d 

553, 557 (6th Cir. 2001) (finding notices did not violate due process even though they “might 

have contained false and misleading information” because they stated a hearing was available 

and provided a phone number to call for more information).

In resisting this conclusion, Cahoo begins in an understandable place: Hasn’t the Sixth 

Circuit already identified the clearly established law for this case and haven’t we already 

determined that she meets it? As support, she points to the district court’s opinion, which 

reasoned similarly:

The State defendants insist that each plaintiff nevertheless had the opportunity to 

participate in a full evidentiary hearing before the [Agency] deprived any of them 

of property, which, they say, cured any deficiency in earlier notices. But the Sixth 

Circuit rejected this exact argument by the same defendants:
Nos. 21-1407/2672 Cahoo, et al. v. SAS Inst., Inc., et al. Page 10

The Individual Agency Defendants argue that Plaintiffs failed to 

allege a plausible due process claim because Agency procedures 

provided for a pre-deprivation hearing if claimants elected to 

appeal a fraud determination. The Court is unpersuaded by this 

argument. Plaintiffs allege that the Agency terminated a 

claimant’s right to benefits before any appeal hearing took place; 

they allege the Agency terminated a claimant’s right to benefits 

immediately once MiDAS made a positive fraud determination. 

While claimants had the opportunity to appeal a fraud 

determination, “postdeprivation remedies alone will not satisfy due 

process if the deprivation resulted from conduct pursuant to an 

‘established state procedure,’ rather than random and unauthorized 

conduct.” 

Cahoo, 528 F. Supp. 3d at 759 (quoting Cahoo, 912 F.3d at 902–03). 

We embrace the premise but not the conclusion. Yes, our prior decision shows that a 

claim would go to a jury on the theory that the State terminated benefits without any of these 

procedures. But at this point the fraud determinations created collection issues for prior 

payments, not a termination of current benefits. Another feature of the district court’s opinion 

shows as much. The court acknowledges that the primary notice of determination would satisfy 

due process had it been sent prior to the deprivation: 

The Primary Determination Notices provided an adequate description for why the 

[Agency] believed it overpaid claimants. . . . But that communication came too 

late. By the time the [Agency] issued the determination notices, it had already 

terminated the claimants’ rights to benefits, demanded repayment, and determined 

that the claimants were subject to penalties. The State defendants cannot rely on 

post-deprivation process to remedy the lack of pre-deprivation notice. 

Id. at 758–59. For each of these four plaintiffs, as the evidence obtained in discovery now 

shows, the Agency sent the notices of determination prior to any deprivation. 

Cahoo insists that the property deprivation occurred as soon as the Agency issued the 

notices of determination, because the notices purported to strip eligibility for future benefits, 

imposed restitution, and assessed penalties. But the notices themselves foreclose this argument. 

They provide a 30-day period to protest the determination, only after which did the “decision 

[become] final and restitution [become] due and owing.” R.423-16 at 38; cf. Cahoo, 528 F. 

Supp. 3d at 730 (recognizing the 30-day period). After that, as noted, each beneficiary had 
Nos. 21-1407/2672 Cahoo, et al. v. SAS Inst., Inc., et al. Page 11

several layers of administrative and court review available to them. Nor is there any support for 

the argument that the deprivation of property occurred earlier. In the context of receiving 

unemployment benefit payments, plaintiffs offer no case—or any clearly established law—

showing that the deprivation occurs before the actual deprivation—a minimum of 30 days later 

by law and in this case months and years later. 

Cahoo claims that Hope v. Pelzer solves these problems. That case recognized that a 

novel violation can be “so obvious” that it nevertheless oversteps clearly established law, it is 

true. 536 U.S. 730, 741 (2002). And we relied on Hope in our prior opinion, it is true too. 

Cahoo, 912 F.3d at 904. But because our prior opinion focused on the alleged midstream 

deprivation of property rights without pre-deprivation notice and a hearing, cases like Goldberg

naturally extended to the novel MiDAS setting. Those cases, in other words, gave Agency 

supervisors “fair warning” that the midstream deprivation of benefits without process “violated 

the Constitution.” Hope, 536 U.S. at 741. In today’s setting, however, Cahoo did not identify 

any case in her appellee brief that fairly extends to this situation. Goldberg’s holding does not 

“obvious[ly]” cover after-the-fact fraud findings accompanied by notices of determination and 

multiple levels of appeal before any immediate consequences for property rights.

At argument, Cahoo’s counsel proffered two more cases, neither of which we relied on in 

our prior opinion and neither of which changes things. Cosby v. Ward, 843 F.2d 967 (7th Cir. 

1988); Transco Sec., Inc v. Freeman, 639 F.2d 318 (6th Cir. 1981). Take Cosby first. This outof-circuit case considered notices of interviews with claims adjudicators. 843 F.2d at 983. The 

state agency sent these notices to claimants of supplemental unemployment benefits who had 

performed inadequate work searches. Id. at 983–84. But because the notices did not tell 

claimants that the issue stemmed from their work searches or that they had violated a rule for 

receiving benefits, the court found them constitutionally inadequate. Id. That’s a distant cry 

from this case, in which the notices flagged the fraud issue, benefits period, employer, relevant 

statute, and gave “an adequate description” of the purported wrongdoing. Cahoo, 528 F. Supp. 

3d at 758. Unlike the Cosby claimants who were immediately denied benefits, moreover, these 

plaintiffs did not face any immediate deprivation of their property interests when the Agency 

sent the fraud notices. 
Nos. 21-1407/2672 Cahoo, et al. v. SAS Inst., Inc., et al. Page 12

Transco Security does not close these gaps. The Government Services Administration 

suspended a government contractor from doing business with the government due to fraud. 

639 F.2d at 320. The notice of suspension did not suffice, we reasoned, because it did not 

specify which of the company’s numerous government contracts contained the alleged errors. 

Id. at 323. That makes Transco Security twice removed from this case, in which the notices had 

no immediate impact on the plaintiffs’ receipt of benefits and outlined the specific benefits 

period and employer.

Cahoo worries that our holding paves the way for state officials to skirt liability simply 

by using “new technologies to carry out unconstitutional conduct,” Cahoo, 912 F.3d at 904, or 

by changing the language on notices. The short answer is that we would handle this case the 

same way even if Agency personnel (rather than MiDAS) drove the process at every turn. 

Technology has nothing to do with it now that we know that the only claims left in the case 

involve individuals with state-law rights to challenge the Agency’s fraud finding before any

deprivation occurred. The entire process, including above all the delayed deprivations in this 

instance, distinguishes the plaintiffs’ claims from due process precedent. Any other approach 

creates notice problems in the other direction. Qualified immunity carefully balances between 

the “vindication of citizens’ constitutional rights” and “officials’ effective performance of their 

duties,” a balance maintained only by giving officials fair notice of the wrongfulness of their 

conduct. Davis v. Scherer, 468 U.S. 183, 195 (1984). 

Cahoo next points to state and federal laws requiring agency representatives to examine 

claims. E.g., Mich. Comp. Laws § 421.32(a) (2013). She argues that these laws made the 

illegality of auto-adjudication apparent. True or not, this argument fails to respond to the only 

features of MiDAS at issue in this appeal: the questionnaires and notices. The district court, as 

noted, did not hold Moffett-Massey or Geskey responsible for any deficiencies related to autoadjudication. 

What of the plaintiffs’ argument that they did not receive the questionnaires and notices? 

The Agency emailed generic notifications to Cahoo’s and Cole’s last-known email addresses that 

instructed them to check their online accounts, where the full notices were posted. And the 

Agency mailed the forms to Mendyk’s and Davison’s last-known addresses; some of the notices 
Nos. 21-1407/2672 Cahoo, et al. v. SAS Inst., Inc., et al. Page 13

were returned as undeliverable. As to the former, Cahoo does not point to any case clearly 

determining that the generic email notifications directing claimants to their accounts failed to 

pass constitutional muster. And common sense suggests that the Agency’s email practices may 

have been prudent. Think of a healthcare provider’s email notifications to a patient, which 

generically provide that new information has been posted on the patient’s account (without 

saying what information) in order to protect patient privacy. 

As to the latter, Cahoo provides no case clearly establishing that mailing a notice to a 

claimant’s last-known address violates due process. Cf. Jones v. Flowers, 547 U.S. 220, 235–36 

(2006) (finding no duty for agency to investigate an individual’s new address before mailing 

notice of a tax sale of a property). Her argument that it was unreasonable for the Agency not to 

follow up on mail returned as undeliverable fares better under existing precedent. See id. at 229–

30 (requiring agency to take reasonable further action when a notice of a tax sale sent by 

certified mail was returned as undeliverable).

But all of the plaintiffs’ arguments about the Agency’s manner of delivering the 

questionnaires and notices—detailed in the last few paragraphs—are beside the point for another 

reason, arguably the most critical reason. Recall that the Agency defendants moved for summary 

judgment based on qualified immunity as to the plaintiff’s due process claims. Neither the 

Agency defendants—nor the plaintiffs in response to the motion for summary judgment—put 

forward any evidence linking Moffett-Massey or Geskey to the plaintiff’s allegations about the 

delivery of the notices. As a result, the district court did not hold Moffett-Massey or Geskey 

responsible (or find a lingering question of material fact) as to how MiDAS delivered notices or 

how the Agency handled undeliverable mail. We cannot deny them qualified immunity based on 

actions that they did not take. See Gregory v. City of Louisville, 444 F.3d 725, 751 (6th Cir. 

2006). Section 1983 prohibits supervisory liability in this setting. See Ashcroft v. Iqbal, 556 

U.S. 662, 676 (2009).

In response to our colleague’s dissent, we offer the following thoughts. First, while we 

agree that the MiDAS program is difficult to defend as a matter of policy, we do not think that 

reality changes the clearly established inquiry. Start with our agreement. The MiDAS 

program’s imperfections indeed are many. Take a few examples. It does not make sense to 
Nos. 21-1407/2672 Cahoo, et al. v. SAS Inst., Inc., et al. Page 14

empower a computer program to make fraud findings, even for internal purposes, that require 

assessing a claimant’s intent. Nor does it make sense to engage in income spreading, the practice 

our colleague lays out in detail in her separate writing. And it does not make sense to impose 

compound interest and excessive penalties on claimants who, having lost their jobs, already face 

financial distress. That explains why we embrace our court’s initial clearly established ruling. 

Had this program been used to deprive these individuals of benefits without any process, we 

would rule the same way again. But in the aftermath of discovery, the remaining claims deal 

solely with situations in which the program created an internal fraud red flag but did not deprive 

benefits at that point or at any point without additional process, notice, and opportunities for 

appeal.

Now that the district court has declined to certify a class, each plaintiff’s individual due 

process claim must stand on its own. See Cahoo v. Fast Enters. LLC, 508 F. Supp. 3d 138, 162 

(E.D. Mich. 2020) (denying class certification). Today’s claims rest on theories that we did not 

consider the last time around. The district court concluded that not one of the remaining four 

plaintiffs immediately lost her ongoing benefits, immediately had her wages garnished, or 

immediately had her tax refunds intercepted. See Cahoo, 508 F. Supp. 3d at 170–73. And it 

concluded that any deprivation would occur only after the 30-day period to appeal expired. 

Cahoo, 528 F. Supp. 3d at 730. Our precedents apply distinct requirements on pre-deprivation 

process and post-deprivation process. See Cahoo, 912 F.3d at 902–03 (delineating between preand post-deprivation process). Hence the prior opinion’s explanation that precedent patently 

required “an individual [to] be given an opportunity for a hearing before he is deprived of any 

significant property interest,” id. at 903 (quotation omitted), remains true but irrelevant to the 

remaining claims in the case. 

Yes, MiDAS’s logic trees spawned internal, interim fraud findings that marked 

individuals for further review. But that internal step did not deprive a claimant of property. As 

noted, those property deprivations came months or years later, following notices of deprivation 

and a multi-level appeal process. The missing link, then, is a case that clearly established the 

inadequacy of the questionnaires, notices of determination, and appeal processes available in the 

run-up to the property deprivation. To this day, the plaintiffs have not provided that case. What 
Nos. 21-1407/2672 Cahoo, et al. v. SAS Inst., Inc., et al. Page 15

precedent there was would not have clearly alerted Moffett-Massey and Geskey to the 

constitutional inadequacies of the questionnaires and notices as to these plaintiffs and these 

property deprivations. See Rosen, 410 F.3d at 931; Shoemaker, 795 F.3d at 560; DePiero, 180 

F.3d at 788; Herrada, 275 F.3d at 557.

Second, while we cannot disagree with our colleague’s assessment of many other defects 

in the MiDAS system, we must note that neither party presented evidence linking MoffettMassey and Geskey to these defects at summary judgment and accordingly the district court did 

not hold Moffett-Massey and Geskey responsible for them (or find that questions of material fact 

existed for them). Hence concerns about the delivery of the notices or the staffing of the phone 

lines may bring shame to the Agency. But they do not bear on the appeal. Because supervisory 

liability does not exist under section 1983 and because the district court found material questions 

of fact to exist only as to Moffett-Massey’s and Geskey’s involvement in the questionnaires and 

notices, we cannot grant relief on any other basis. To deny them qualified immunity based on 

wrongdoing for which they had no responsibility would run contrary to our precedent. E.g.,

Gregory, 444 F.3d at 751–52. 

All in all, while we share our colleague’s concerns about the MiDAS system, we 

respectfully disagree with her conclusion as to the clearly established prong in this appeal. 

B.

Mandatory intervention. That brings us to Heathcote’s separate appeal. A collection of 

multi-factor tests governs motions to intervene as of right under Civil Rule 24(a)(2). United 

States v. Tennessee, 260 F.3d 587, 591–92 (6th Cir. 2001). Courts consider (1) timeliness, 

(2) the movant’s legal interest in the case, (3) impairment of that interest absent intervention, and 

(4) if the parties adequately represent it. Id. Timeliness is a “threshold issue.” Blount-Hill v. 

Zelman, 636 F.3d 278, 284 (6th Cir. 2011) (quotation omitted). It splits into five component 

parts: (1) the stage of the litigation, (2) the intervenor’s purpose, (3) the length of time that the 

intervenor knew about her interest, (4) prejudice to the original parties, and (5) unusual 

circumstances. Id. The multi-factor tests generate multiple standards of review as well. The 
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district court’s timeliness analysis enjoys deferential abuse-of-discretion review, while the rest of 

it gets a fresh look. Stupak-Thrall v. Glickman, 226 F.3d 467, 471 (6th Cir. 2000).

The district court found Heathcote’s motion untimely, a finding well within its discretion. 

Heathcote hopes to act as a class representative to vindicate class claims and to pursue her own 

individual claims. Her attorney conceded at the motion hearing that he had represented 

Heathcote in the auto-adjudication period, meaning Heathcote and her attorney knew about her 

due process claim before Cahoo filed this lawsuit. That means Heathcote waited four years to 

act. She offers no satisfactory reason for this delay. Her counsel explained that he was “willing 

to sit back” and let others “pursue this on behalf of the tens of thousands of people.” R.551 at 

20. But we have rejected such a “wait-and-see” approach before. Stotts v. Memphis Fire Dep’t, 

679 F.2d 579, 584 n.3 (6th Cir. 1982). And while Heathcote “wait[ed] in the wings,” China 

Agritech, Inc. v. Resh, 138 S. Ct. 1800, 1811 (2018), the parties litigated motions to dismiss, 

undertook an interlocutory appeal, completed discovery, moved (unsuccessfully) for class 

certification, and briefed cross-motions for summary judgment. Adding Heathcote to the mix 

now would require re-traveling these same roads and re-reaching these same milestones, all 

while adding considerable delay and cost to the litigation. 

Put in terms of the five-factor test, the stage of the litigation was advanced. See StupakThrall, 226 F.3d at 474–75; Blount-Hill, 636 F.3d at 285. Heathcote’s purposes for intervening 

were not “legitimate,” Linton ex rel. Arnold v. Comm’r of Health & Env’t, 973 F.2d 1311, 1318 

(6th Cir. 1992), and they do not “excuse[]” the “lack of an earlier motion,” Stupak-Thrall, 226 

F.3d at 479 n.15. The length of time between Heathcote’s motion and her knowledge of her 

interest was vast. Cf. China Agritech, 138 S. Ct. at 1810–11 (instructing would-be class 

representatives not to wait to file). This delay, in turn, unduly prejudices the original parties by 

requiring them to re-litigate key stages of this case. See Bradley v. Milliken, 828 F.2d 1186, 

1194 (6th Cir. 1987) (noting an intervenor’s plan “to have the court reconsider its prior rulings” 

exacerbates prejudice). No unusual circumstances support intervention. All told, the district 

court did not abuse its discretion in holding that Heathcote filed this motion too late.

Heathcote raises several counterarguments.
Nos. 21-1407/2672 Cahoo, et al. v. SAS Inst., Inc., et al. Page 17

Her main argument turns on American Pipe & Construction Co. v. Utah, in which the 

Court held that the filing of a class action tolls the statute of limitations for the putative class 

members. 414 U.S. 538, 552–53 (1974). As a result, Heathcote maintains, motions to intervene 

filed after the denial of class certification necessarily satisfy the timeliness inquiry. But this 

argument conflates two distinct doctrines about time: tolling and timeliness. See id. at 552 n.22 

(declining to reach the separate question of the denial of intervention); Lindblom v. Santander 

Consumer USA, Inc., 771 F. App’x 454, 455 (9th Cir. 2019) (finding American Pipe “irrelevant” 

to intervention). American Pipe tolling sounds in efficiency. 414 U.S. at 551. Just because a 

litigant has complied with a statute of limitations does not mean she has satisfied the distinct 

imperatives of Rule 24’s timeliness requirements. E.g., Blount-Hill, 636 F.3d at 284–86. 

Multiple cases, she says, support her interpretation of American Pipe. But none binds 

this court. And none says anything about motions to intervene filed four years after the 

complaint—and filed after the denial of class certification to boot. Carpenters Pension Tr. Fund 

for N. Cal. v. Allstate Corp. (In re Allstate Corp. Sec. Litig.), 966 F.3d 595, 614–16 (7th Cir. 

2020); Fund Liquidation Holdings LLC v. Bank of Am. Corp., 991 F.3d 370, 393 (2d Cir. 2021); 

Pelletier v. Endo Int’l PLC, 338 F.R.D. 446, 475 (E.D. Pa. 2021); Byrd v. Progressive Direct Ins. 

Co., No. 3:20-cv-119, 2021 WL 1225961, at *6 (W.D. Ky. Mar. 31, 2021).

Also unhelpful is Potter v. Commissioner of Social Security, 9 F.4th 369 (6th Cir. 2021). 

It applied American Pipe’s tolling principle to individual claims after the administrative denial of 

class certification—at least two degrees of separation from today’s case. Id. at 371–72, 380.

Heathcote insists that “the district court’s ultimate decision on the legality of Defendants’ 

conduct could have stare decisis effect on a future individual action.” Appellant’s Br. 23. But 

this concern did not arise recently. It arose when Cahoo filed the lawsuit, pointing against 

timeliness, not towards it. See Stotts, 679 F.2d at 583.

Heathcote maintains that she could not have known about her class-representative interest 

until after the denial of class certification. Only then, she says, did the inadequacy of the existing 

class representatives become clear. But it’s far from apparent that Heathcote could vindicate her 

class-representative interest through intervention at this point. The district court denied class 
Nos. 21-1407/2672 Cahoo, et al. v. SAS Inst., Inc., et al. Page 18

certification for reasons on top of inadequacy; it also identified flaws with preponderance and 

superiority. Heathcote touts herself as an adequate class representative but cannot explain how 

her renewed class certification motion would fix these other problems embedded in this “factintensive” due process claim. Cahoo, 536 F. Supp. 3d at 158; see Stupak-Thrall, 226 F.3d at 

476.

Permissive intervention. Heathcote in the alternative sought permission to intervene 

under Civil Rule 24(b). Like their mandatory counterparts, permissive intervention motions also 

must be timely filed. Fed. R. Civ. P. 24(b)(1); NAACP v. New York, 413 U.S. 345, 365–66 

(1973). That Heathcote filed her mandatory intervention motion too late bodes poorly for, 

indeed halts, her permissive intervention motion. Stupak-Thrall, 226 F.3d at 479.

III.

We reverse the district court’s denial of qualified immunity as to Moffett-Massey and 

Geskey. We affirm the district court’s denial of Heathcote’s motions to intervene and to 

reconsider.
Nos. 21-1407/2672 Cahoo, et al. v. SAS Inst., Inc., et al. Page 19

_____________________________________________________

CONCURRING IN PART AND DISSENTING IN PART

_____________________________________________________

ALICE M. BATCHELDER, CIRCUIT JUDGE, concurring in part and dissenting in part. 

The majority decides two separate appeals in this opinion. I concur in the latter, an appeal from 

a collateral judgment denying a motion to intervene. Maj. Op. § II.B. But I cannot concur in the 

first appeal, which is an interlocutory appeal from the district court’s determination that genuine 

disputes of material fact preclude Moffett-Massey’s and Geskey’s claims of qualified immunity. 

Maj. Op. § II.A. I would affirm the district court’s denial of qualified immunity.

Just to be clear, despite the language in its opinion, the district court did not make any 

findings of fact or hold the current defendants, Moffett-Massey and Geskey, liable on any of the 

plaintiffs’ claims—nor did it absolve them of liability on any claims. The district court merely 

denied qualified immunity and set the case for trial by a jury. That is, if the jury were to find that 

the form letters do not state the fraud accusation with particularity (or the means of delivery was 

not reasonably calculated to reach the recipients, or the hearing process did not provide them a 

reasonable opportunity to defend themselves) and if the jury were to find Moffett-Massey and 

Geskey were directly responsible for those failings (or for refusing to correct them), then the jury 

could find them liable. Or the jury might not. The point is that the plaintiffs have a story to 

tell—and evidence to present—to a jury and that is all the district court held.

We often say that “[q]ualified immunity protects all but the plainly incompetent or those 

who knowingly violate the law.” Jackson v. City of Cleveland, 64 F.4th 736, 750 (6th Cir. 2023) 

(quotation marks omitted) (quoting White v. Pauly, 580 U.S. 73, 79 (2017)). This “is a rigorous 

standard” to be sure. Guertin v. Michigan, 924 F.3d 309, 311 (6th Cir. 2019) (Sutton, J., 

concurring in the denial of rehearing en banc); accord Dist. of Columbia v. Wesby, 138 S. Ct. 

577, 589 (2018) (calling it a “demanding standard”). But, as the district court suggested, 

Moffett-Massey and Geskey appear to argue their incompetence as an excuse, while a jury could 

find that the totality of their actions demonstrates their knowing violation of the law. Either way, 

qualified immunity was not intended for defendants like these.
Nos. 21-1407/2672 Cahoo, et al. v. SAS Inst., Inc., et al. Page 20

The short story is this. The plaintiffs received unemployment benefits. Months or years 

later, MiDAS auto-adjudicated them guilty of fraud and imposed staggering penalties. The 

plaintiffs and thousands like them were unaware of the adjudication and penalties until afterward 

and, for many, not until the Agency seized their tax refunds and garnished their wages—sending 

already vulnerable people into renewed or further financial distress, including bankruptcy. 

Agency Director Moffett-Massey and her favored advisor, Geskey, were the masters of the entire 

MiDAS program. The plaintiffs contend that Moffett-Massey and Geskey, in conjunction with 

certain others, deprived them of their right to due process by adjudicating them guilty and 

imposing penalties without providing proper notice or an opportunity to defend themselves.

Four statements of clearly established law are relevant to these due-process claims. One, 

because the plaintiffs were not required to exhaust their administrative remedies (i.e., to appeal 

the Determination) or suffer the actual loss of their property, their injury (the deprivation) 

occurred when the Agency rendered the Determination in the three-letter combo. Two, predeprivation due process was required in this scenario, meaning notice and a hearing before the 

Determination; post-deprivation process was insufficient and irrelevant as a matter of law. 

Three, the pre-deprivation notice and process had to be constitutionally satisfactory—i.e., the 

means of delivery had to be reasonably calculated to reach the recipients, the content of the 

notice had to state the accusation and grounds for it with particularity, and the hearing had to 

provide a reasonable time and opportunity to oppose the accusation. Four, the state defendants 

had to be directly or actually responsible for the due process violations, or for refusing to remedy 

those violations. 

As the district court determined based on its thorough assessment of the evidence, there 

are material questions for decision by a jury, such as: whether the means and manner of 

delivering the Questionnaire was reasonably calculated to ensure that the plaintiffs would receive 

it; whether the content of the Questionnaire was sufficient for the plaintiffs to realize that they 

were accused of fraud, know the bases for that accusation, and prepare the evidence necessary to 

oppose or refute that accusation; whether the Questionnaire’s scheme (including the multiplechoice questions for auto-adjudication, the caveat in the instructions that permitted the recipient 

to submit additional information, the 10-day response deadline, etc.) comports with due process; 
Nos. 21-1407/2672 Cahoo, et al. v. SAS Inst., Inc., et al. Page 21

and whether Moffett-Massey and Geskey were directly responsible for the Questionnaire. There 

are other genuinely disputed issues, to be sure, but these are enough—in my view and the district 

court’s—to show that the record contains evidence by which a jury could reasonably find that 

Moffett-Massey and Geskey, via MiDAS, violated the plaintiffs’ clearly established rights to due 

process. 

I.

Since its filing in March 2017, this case has generated over a dozen written opinions by 

the district court (and one prior opinion by this court), exploring and discussing the underlying 

events, the legal claims and defenses, and a legion of associated factual, legal, and technical 

issues. Each of the district court’s opinions is thorough, detailed, and clear. More to the point, 

these opinions demonstrate the court’s meticulous review of the record and its full understanding 

of the claims, issues, and law. Everything in the summary that follows is attributable to the 

district court’s impressive and commendable efforts in managing and documenting this case to 

date.

In October 2013, Michigan’s Unemployment Insurance Agency (the “Agency”) started 

using the MiDAS software to run its entire fraud-investigation process automatically, without 

any Agency employee involvement. A fraud investigation typically began in one of two ways: a 

former employer objected to the unemployment claim (which objection the Agency accepted 

without question) or MiDAS flagged a suspect based on a database comparison of benefits to 

quarterly taxable income, which MiDAS averaged (prorated) over the 13 weeks of the quarter. 

For example, if Mary Doe received unemployment benefits in January, but later earned $1,300 at 

a new job in March, MiDAS would take Doe’s total First Quarter income of $1,300, divide it by 

13 weeks, treat that as if she earned $100 each and every week in the Quarter, including the 

weeks in January when she was receiving unemployment benefits, and assume that the January 

unemployment benefits were improper (due to the prorated $100 per week), and possibly 

attributable to fraud.1 

1This is what happened to Suzette Marie Heathcote, the attempted intervenor in the other appeal here, No. 

21-2672.
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To initiate the fraud investigation, MiDAS would automatically send a form letter (or an 

email, or place a notice in the related Agency account) to the recipient/suspect. We, like the 

district court, refer to this first form letter as “the Questionnaire,” which was actually titled 

“Request for Information Relative to Possible Ineligibility or Disqualification.” Pause to 

recognize that, at this point, many recipients were no longer receiving benefits and had not been 

for months or years, so it is doubtful that a form letter about “Ineligibility” or “Disqualification” 

from a program for which the recipient was no longer a participant would be of significant 

interest or concern. 

More importantly, the Questionnaire did not announce that it concerned a fraud 

investigation—in fact, that form letter does not contain the word “fraud” anywhere in it. Instead, 

it opens with the statement: “A question of eligibility and/or qualification has been raised on this 

claim. Please respond to the questions on the reverse side of this form.” Those two questions 

are: 

Did you intentionally provide false information to obtain benefits that you were 

not entitled to receive? 

Yes No

Why do you believe you were entitled to benefits? 

1. I needed the money

2. I had not received payment when I reported for benefits

3. I reported the net dollar amount instead of the gross dollar amount paid

4. I did not understand how to report my earnings or separation reason

5. I thought my employer reported my earnings for me

6. Someone else certified (reported) for me

7. Someone else filed my claim for me

8. Other

The recipient’s answers to these questions—actually just the second question—triggered 

MiDAS’s so called “logic tree.” The first question was virtually irrelevant; a “No” answer was 
Nos. 21-1407/2672 Cahoo, et al. v. SAS Inst., Inc., et al. Page 23

ignored.2 The recipient’s choice on the second question was determinative. But recognize 

that—as answers to the specific question asked—those eight options make no sense. The “real” 

question to these “answers” would be: Why did you (lie and) understate your income?3 The only 

“answer” that let the recipient out of the MiDAS auto-adjudication system was number 8, 

“Other.” If the recipient chose 2, 3, 4, or 5, then MiDAS determined that benefits were improper 

and necessitated repayment, albeit by mistake, not fraud. But if the recipient chose numbers 1, 6, 

or 7 (or did not respond within ten days), then MiDAS automatically adjudicated the recipient 

guilty of fraud. According to a subsequent U.S. Department of Labor (DOL) investigation, 

“most” of the MiDAS auto-adjudications of fraud were due to the recipient/suspect’s failure to 

respond to the letter. 

At the end of the list (after option number 8), the form had a blank space of about 13⁄8 

inches, beneath which was this paragraph, with its permissive opening sentence:

You may provide a statement and evidence regarding this issue before a 

(re)determination is made on this matter. You must provide a response to the 

questions above and if you failed to previously report this information, explain 

why. This form must be received by the Agency within 10 calendar days of the 

mail date shown on [the reverse side]. Submit copies (not the originals) of any 

records which you believe support your position, such as pay stubs, layoff slip, 

federal income tax form, W-2, etc. If you require additional space, attach 

additional page(s). . . .

Many things about this putative offer of an opportunity to respond are questionable, but I 

will point out two. One, because the MiDAS software auto-adjudicated the decision based on 

the option chosen in the second question, any additional explanation or information was ignored 

unless the recipient chose Option 8. And two, the response deadline of “must be received by the 

Agency within 10 calendar days of the mail date shown” includes any postal mail delivery time, 

2

“When a claimant did respond to the [Q]uestionnaire, MiDAS’s programming, based on its logic trees, 

found intentional fraud whenever a claimant chose certain multiple-choice options on the form, even if she indicated 

[in question one] that she did not intentionally provide false information.” Cahoo v. FAST Enterprises LLC, 508 F. 

Supp. 3d 162, 167 (E.D. Mich. 2020). Thus, MiDAS’s programming ignored a “No” answer in question one.

3As the plaintiffs point out in their brief, the Questionnaire “contained no multiple-choice option that 

would allow a claimant to select an answer indicating that they believed they were entitled to benefits because they 

were qualified for the benefits.” Ape. Br. at 28. And Clay Tierney, the Agency Project Manager who created the 

MiDAS system, testified at his deposition that the Agency presumed an overpayment, and likely fraud, before 

sending that letter. 
Nos. 21-1407/2672 Cahoo, et al. v. SAS Inst., Inc., et al. Page 24

thereby shortening the 10 days by two or more days, and it necessarily includes at least one 

weekend. 

The next stage of the process was the Determination notification, which MiDAS sent 

automatically, and which actually comprised three separate letters sent in three separate 

envelopes. Although none of these three letters referred to the other letters in any way, they are 

all form letters, in 10-point font, with the same Agency title block, mailed to the same recipient 

address, on the same mailing date, and listing the same nine-digit CLM code in the information 

block. The first letter, titled “Notice of Determination,” informed the recipient of its finding 

(“Your actions indicate you intentionally misled and/or concealed information to obtain benefits 

you were not entitled to receive.”) and its punishment: that she was “disqualified for benefits,” 

that “[r]estitution [wa]s due,” and that she was “required to pay the penalty assessed.” The 

second letter, also titled “Notice of Determination” but using a different “case number,” 

informed the recipient of a different finding (e.g., “You quit your job with [employer] on [date] 

due to other personal reasons. Your leaving was voluntary and not attributable to the 

employer.”) and stated an overlapping punishment: that she was disqualified for benefits until 

she has satisfied a certain dollar amount of “rework requirements.” And the third letter, titled 

“Restitution,” which has the same case number as the second letter, informed the recipient of the 

amount due in repayment and penalty (e.g., “Claimant must pay to the Agency in cash, by check, 

money order, EFT via MiWAM or deduction from benefits, restitution in the amount of $35,475 

[i.e., $7,095 in principal and $28,380 in penalty] . . . . Interest accrues at the rate of 1% per 

month (computed on a daily basis).”). The letter also says: “[s]hould your disqualification or 

ineligibility be reversed, restitution shall cease.”

To sum this up, if the claimant did not answer the Questionnaire within 10 days or 

answered by choosing options 1, 6, or 7, then MiDAS automatically adjudicated that claimant 

guilty of fraud and imposed severe penalties (recovery of benefits, a penalty of four times the 

benefits,4and interest at 1% per month compounded daily). So, returning to hypothetical Mary 

Doe, suppose she received $400 in unemployment that MiDAS deemed fraudulent four years 

4According to Geskey, this penalty (four times or 400% of the benefits) was the highest penalty of any 

State in the country. Most States had a fraud penalty of 10 to 15% of the benefits. 
Nos. 21-1407/2672 Cahoo, et al. v. SAS Inst., Inc., et al. Page 25

later: MiDAS would assess her $3,232, based on repayment of the $400, a penalty of $1,600 

(i.e., $400 x four), and interest of $1,232 (i.e., 1% monthly, compounded daily for four years). 

Being unemployed in Michigan was awfully expensive.5 If the recipient did not pay as 

demanded, MiDAS initiated collection through interception of federal and state income tax 

refunds and wage garnishment. 

As bad as this was in concept, it was even worse in practice. The Agency started using 

MiDAS in 2013, but the MiDAS database search, comparing benefits to taxable income, looked 

backward at every recipient for the prior six years. So, the compound interest was brutal, but 

also many recipients were no longer claiming or receiving unemployment at the time of the 

MiDAS Questionnaire and Determination. Unemployment was a distant (bad) memory to these 

people, who likely had no concern for any Agency form letters. Meanwhile, the Agency made 

no effort to establish the correct or current address for these suspects. No human involvement 

meant that MiDAS just automatically printed the old address from its database onto the form 

letters.6

According to the record, many letters were never even mailed and merely accumulated at 

the Agency. Thousands of letters were returned as undeliverable. And, presumably, even more 

were simply discarded and never read. There was no Agency follow up on the undeliverable 

returned letters or any effort to determine whether any letters were actually received. And the 

letters had an additional latent defect. The Determination letters—purportedly alerting the 

recipient of the adjudication and the right to appeal—listed a phone number with instructions to 

call that number for more information. In a subsequent audit, the Michigan Auditor General 

(MAG) determined that over 90% of the calls to that number were never answered, including the 

5According to the DOL investigation, most of these recovery actions were for over $10,000. Many were 

over $50,000. And some were over $180,000. And, as would be expected, many of these people ended up in 

bankruptcy. Three of the four plaintiffs here ended up in bankruptcy, which was its own separate issue in the district 

court. 

6Alternatively, MiDAS sent an email to the recipient/suspect at the email address that MiDAS had on 

record. That email instructed the recipients/suspects to check their Agency account for a new notice. The email did 

not reveal that the notice concerned a fraud investigation or the potential consequences. And, given that the 

recipient was no longer participating in the unemployment program, and had not been for months or years, one 

might reasonably question whether a nondescript, generic email about their dormant Agency account would be of 

interest or concern.
Nos. 21-1407/2672 Cahoo, et al. v. SAS Inst., Inc., et al. Page 26

last 50,000 calls leading up to that audit. It was also reported that, of the 22,427 fraud autoadjudications that the MAG selected for review, 93% involved no fraud. That number has since 

been called in to question, but in its opinion ruling on class certification, the district court cited 

evidence provided by the State of Michigan that MiDAS was involved in 67,740 adjudications of 

fraud; and the plaintiffs argued that at least 50% of those were faulty and involved no fraud. 

Meanwhile, if a recipient/suspect did actually receive the Determination letters, 

understand them, and request an appeal, the appeal was assigned for a hearing before an ALJ. 

But no Agency information was available because MiDAS was not accessible and there were no 

paper copies of any of the materials. So, the recipient/suspect/appellant had no information 

about the fraud determination and arrived at the hearing with no knowledge or preparation as to 

what accusations to dispute or disprove. At some point, the Agency began to send ex parte

communications to the ALJs, stating the reasons for MiDAS’s fraud determination. When 

certain ALJ’s expressed concern over that practice, the Agency removed them from hearing the 

fraud appeals. 

During its brief use of MiDAS, the Agency’s operating fund increased by $152 million. 

The Agency discontinued MiDAS in August 2015, purportedly due to the discovery of 

false-positive fraud determinations. The Agency denies that it was because the DOL had just 

learned the Agency was using an automated system and—warning that auto-adjudication of 

fraud claims violates due process and federal law—began a DOL investigation.7 The Agency 

(namely Moffett-Massey and Geskey) denied that auto-adjudication was illegal, but they 

discontinued it. Three months later, the DOL reported that the MiDAS auto-adjudication 

violated federal law:

On November 13, 2015, the United States Department of Labor issued a 

Monitoring Report of the [Agency]’s adjudication practices. It found that the 

[Agency]’s practices violated section 303 of the Social Security Act, 42 U.S.C. § 

503(a), in six ways, [including that the form letter] . . . questionnaires and fraud 

7Also, the Zynda lawsuit was filed in April 2015. This precursor lawsuit led to a settlement agreement that 

the Agency would no longer use MiDAS. Zynda v. Arwood, 175 F. Supp. 3d 791 (E.D. Mich. 2016) (denying 

motion to dismiss).
Nos. 21-1407/2672 Cahoo, et al. v. SAS Inst., Inc., et al. Page 27

determination notices did not clearly state the issue or reason for the [Agency]’s 

suspicion. . . .

Cahoo v. Fast Enterprises LLC, 508 F. Supp. 3d 138, 149 (E.D. Mich. 2020). 

As mentioned, the two State-employee defendants in this appeal are Sharon MoffettMassey and Stephen Geskey. Moffet-Massey was the Agency’s Director from April 2014 to 

January 2017, during which time she oversaw the entire Agency operation, including the MiDAS 

auto-notification and auto-adjudication system, the Questionnaire and Determination forms used 

in it, the decision tree, and the appeal process. She approved of it wholeheartedly, championed it 

(and herself) in the press, disregarded internal warnings and the eventual negative press about 

MiDAS, and insisted that auto-adjudication was legal and legitimate. Even when the DOL told 

her it was inappropriate, she argued that no federal rule or regulation said so. Geskey was the 

Agency’s Director from 2008 to 2011, and then the head of the Agency’s Policies and 

Procedures Group, which reviewed and approved aspects of MiDAS, including the 

Questionnaire and Determination form letters. Basically, Geskey’s role was as lawyer/advisor to 

Moffett-Massey and the Agency. Even though he had advised Moffett-Massey to abolish the 

logic tree, which she refused to do, he joined her argument (and drafted the letter for her 

signature) against the DOL, claiming that no federal rule or regulation prohibited autonotification or auto-adjudication. 

II.

For various reasons, the Agency suspected that each of the four plaintiffs in this case had 

committed fraud. These accusations or suspicions triggered MiDAS to send Questionnaires, but 

because the plaintiffs did not actually receive them or appreciate their significance, none of these 

plaintiffs responded. Consequently, MiDAS sent each a Determination, auto-adjudicating them 

guilty of fraud, disqualifying them from eligibility for future benefits, and setting out their 

individual monetary liability based on restitution of past benefits and the 400% penalty, which 

ranged from $6,962 to $34,475, plus interest, for the four of them. Because they did not receive 

or appreciate the significance of the Determination, none of these current plaintiffs sued back 

then for declaratory or injunctive relief based on the current due process claim. Nor did any of 

them pursue the administrative appeal, the availability of which expired after 30 days.
Nos. 21-1407/2672 Cahoo, et al. v. SAS Inst., Inc., et al. Page 28

Cahoo first discovered her $34,475 liability when she found it listed on her credit report 

as she was preparing to file for bankruptcy. Mendyk first discovered her $32,758 liability when 

she attempted to file another claim for uninsurance benefits three years later, which was after the 

Agency had seized her tax refunds and garnished her wages. Cole first learned of her $24,530 

liability when she received a statement of debt from the State, about 18 months after the 

Determination. And Davison first learned of her $6,962 liability when the Agency intercepted 

her federal tax refund about 18 months after the Determination. Cahoo, Mendyk, and Cole 

eventually declared bankruptcy and obtained a discharge of their debts from the bankruptcy 

court.

In 2017, these four plaintiffs filed this lawsuit in federal court, which included, among its 

several claims, a claim brought under 42 U.S.C. § 1983 that Moffett-Massey and Geskey, acting 

by and through MiDAS, deprived them of their constitutional right to due process by 

adjudicating them guilty and imposing penalties without providing proper notice or an 

opportunity to defend themselves.8 The plaintiffs also sought to prosecute this lawsuit as a class 

action, which the district court denied. In its opinion denying class certification, the district court 

explained that “[t]he plaintiffs argue that the manner of the notice was constitutionally deficient, 

but they also insist that the substance was deficient as well.” Cahoo, 508 F. Supp. 3d at 161. 

The court found that class certification was improper because “the manner of notice and the 

[Agency]’s failure to provide a meaningful hearing and impartial process are fact-intensive 

inquiries . . . [and] the resolution of those issues would depend on whether the individuals 

received actual notice.” Id. at 162. 

Then, Moffett-Massey and Geskey moved for summary judgment based on qualified 

immunity, which the district court denied, ordering that a jury would decide the plaintiffs’ claims 

at trial. The court did not hold Moffett-Massey and Geskey responsible for—or absolve them of 

responsibility for—anything at that stage. Meanwhile, the plaintiffs had moved for partial 

8The district court explained that “the complaint alleges that the automated system afforded no predeprivation process to the plaintiffs even though [such process] was required by state law, and post-deprivation 

remedies were inadequate because the decision-making process lacks transparency and access to records to 

determine the basis for the determination[.] The complaint also indicates that the appeals process was fraught with 

impropriety.” Cahoo v. FAST Enterprises LLC, 508 F. Supp. 3d 162, 176 (E.D. Mich. 2020) (citation omitted).
Nos. 21-1407/2672 Cahoo, et al. v. SAS Inst., Inc., et al. Page 29

summary judgment, arguing, among other things, that: “(1) the fraud questionnaires and 

determinations did not provide adequate substantive notice, (2) the manner of notice—by 

traditional mail and email—was constitutionally deficient, [and] (3) they were denied a fair 

hearing through the inadequate notice in the questionnaires and determinations.” Cahoo, 528 F. 

Supp. 3d at 727. But the court denied that motion because “fact questions preclude partial 

summary judgment on liability in favor of the plaintiffs against any of the defendants.” Id. at 

763.

Moffett-Massey and Gesky appealed. Because the denial of summary judgment is not a 

final decision under 28 U.S.C. § 1291, it is ordinarily not immediately appealable. But the 

“denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an 

appealable ‘final decision’ within the meaning of [] § 1291 notwithstanding the absence of a 

final judgment.” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). Thus, we have a certain, limited 

jurisdiction over interlocutory appeals from the district court’s denial of qualified immunity.

III.

“Our jurisdiction in this interlocutory appeal extends only to questions of law, which we 

review de novo. The legal question here is whether [the defendants] w[ere] entitled to qualified 

immunity, on the facts as we must construe them in this appeal.” Jarvela v. Washtenaw Cnty., 

40 F.4th 761, 764 (6th Cir. 2022) (citation omitted). We construe them by “tak[ing] the district 

court’s view of the facts in the light most favorable to [the plaintiffs].” Id. at 763 (citation 

omitted).9 And when the district court determines that material questions of fact preclude 

qualified immunity, as it did here, the defendants must “concede the most favorable view of the 

facts to the plaintiff for purposes of the appeal.” Bey v. Falk, 946 F.3d 304, 312 (6th Cir. 2019) 

9

“At the summary judgment stage, the [district] court determines whether there are genuine disputes of 

material fact that should go to a jury; it does not find facts.” Marshall v. The Rawlings Co. LLC, 854 F.3d 368, 381 

(6th Cir. 2017) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)); see also Upshaw v. Ford 

Motor Co., 576 F.3d 576, 592 (6th Cir. 2009) (“In considering a motion for summary judgment, the [district court]’s 

function is limited to determining whether sufficient evidence has been presented to make the issue a proper jury 

question, and not to judge the evidence and make findings of fact.” (quotation marks and citation omitted)); Harris 

v. Welch, 979 F.2d 850 (6th Cir. 1992) (“Thus, the inquiry performed is the threshold inquiry of determining 

whether there is the need for trial—whether, in other words, there are any genuine issues that properly can be 

resolved only by a finder of fact because they may be reasonably resolved in favor of either party.” (quotation and 

editorial marks omitted)).
Nos. 21-1407/2672 Cahoo, et al. v. SAS Inst., Inc., et al. Page 30

(citation omitted); see also Bunkley v. City of Detroit, 902 F.3d 552, 559-61 (6th Cir. 2018). 

That is, in an interlocutory appeal from the denial of qualified immunity, the plaintiffs win any 

material fact dispute. 

Qualified immunity shields government officials in the performance of discretionary 

functions from standing trial for civil liability unless their actions violate clearly established 

rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 

(1982). A plaintiff who brings a § 1983 action against such an official bears the burden of 

overcoming the qualified immunity defense. Crawford v. Tilley, 15 F.4th 752, 760 (6th Cir. 

2021). At the summary judgment stage, the plaintiff must show that (1) the defendant violated a 

constitutional right and (2) that right was clearly established. Id. (citing Wesby, 138 S. Ct. at 

589).

“A right is clearly established if the contours of the right are sufficiently clear that a 

reasonable official would understand that what he is doing violates that right.” Baynes v. 

Cleland, 799 F.3d 600, 610 (6th Cir. 2015) (quotation marks, editorial marks, and citation 

omitted). Because “officials can still be on notice that their conduct violates established law 

even in novel factual circumstances,” Hope v. Pelzer, 536 U.S. 730, 741 (2002), there need not 

be “a case directly on point,” so long as “existing precedent [has] placed the statutory or 

constitutional question beyond debate,” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (citation 

omitted). The “unlawfulness can be ‘clearly established’ from direct holdings, from specific 

examples describing certain conduct as prohibited, or from the general reasoning that a court 

employs.” Vanderhoef v. Dixon, 938 F.3d 271, 278–79 (6th Cir. 2019) (quotation marks and 

citation omitted).

The district court framed the question in terms of three due process violations: (1) “the 

defective notices that MiDAS generated—notices that defendants Moffet-Massey and Geskey 

were responsible for crafting”; (2) “the presumptive logic tree fraud determinations”; and 

(3) “the automatic fraud findings that resulted from a failure to respond to the questionnaires.” 

Cahoo, 528 F. Supp. 3d at 755. But the right in question is the same for all three violations: the 

right to notice of and an opportunity to defend against Agency accusations that would lead to an 

adjudication of guilt and imposition of punishment, namely the disqualification from the 
Nos. 21-1407/2672 Cahoo, et al. v. SAS Inst., Inc., et al. Page 31

unemployment program and the monetary liability for restitution of past benefits, severe 

penalties, and interest.

“A procedural due process claim consists of two elements: (i) deprivation by state action 

of a protected interest in life, liberty, or property, and (ii) inadequate state process.” Reed v. 

Goertz, 143 S. Ct. 955, 961 (2023) (citation omitted). The first element is easily satisfied here. 

As for the disqualification, the plaintiffs have a protected property interest in their access to the 

State’s unemployment benefits program. Cahoo v. SAS Analytics Inc., 912 F.3d 887, 900 (6th 

Cir. 2019) (“Recipients of unemployment compensation have constitutionally-protected property 

interests in unemployment benefits.”) (citing cases). And as for the monetary liability, the 

plaintiffs have a protected property interest in their own money, as they undoubtedly “have a 

legitimate claim of entitlement to it.” See Board of Regents of State Colleges v. Roth, 408 U.S. 

564, 577 (1972). And the Agency’s penalties deprived the plaintiffs of those interests. 

The question here concerns the process. Specifically, whether the right to adequate 

notice and opportunity to defend was so clearly established under existing law that “a reasonable 

official would understand that what he [wa]s doing violate[d] that right.” See Baynes, 799 F.3d 

at 610. And the notice and process of concern in this analysis is limited to the Questionnaire 

because everything in and after the Determination was post-deprivation and, therefore, irrelevant. 

The plaintiffs were not required to exhaust their state administrative remedies. Patsy v. 

Bd. of Regents, 457 U.S. 496, 500 (1982) (“[W]e have on numerous occasions rejected the 

argument that a § 1983 action should be dismissed where the plaintiff has not exhausted state 

administrative remedies.); see also Pakdel v. City & Cnty. of San Francisco, 141 S. Ct. 2226, 

2230 (2021) (reciting “‘the settled rule’ that exhaustion of state remedies is not a prerequisite to 

an action under § 1983” (quotation marks and citation omitted)). Nor were the plaintiffs required 

to wait to suffer a tangible injury. See Patsy, 457 U.S. at 504 (explaining that “Congress 

intended [§ 1983] to throw open the doors of the United States courts to individuals who were 

threatened with, or who had suffered, the deprivation of constitutional rights, and to provide 

these individuals immediate access to the federal courts” (quotation marks and citation omitted; 

emphasis added)).
Nos. 21-1407/2672 Cahoo, et al. v. SAS Inst., Inc., et al. Page 32

If the plaintiffs had received and understood the Determination letters, they could have 

filed this § 1983 action right then, seeking a declaratory judgment or injunctive relief based on 

this same due process claim they raise here. The Determination was a final decision that offered 

an administrative appeal, with the first two letters describing a “protest” of the Determination 

(not a defense against the accusation or charge) and the third letter’s referring to the 

Determination’s being “reversed”; it does not refer to an accusation’s being proven or disproven.

Therefore, the Determination (three-letter combo) is the Agency action that caused the 

plaintiffs’ injuries, i.e., the deprivation of the plaintiffs’ rights concerning their property interests. 

The Questionnaire was the first (putative) contact with the suspected claimant, it comprised the 

purported “notice” of the accusation and it described the “process” for defending against the 

accusation. The next communication from, or contact with, the Agency was the Determination 

(three-letter combo), which announced that the Agency had adjudicated the claimant guilty, 

demanded restitution of the prior benefits, and imposed the 400% penalty. At some point later, 

typically without further communication or contact, the Agency seized the claimants’ money 

(with accumulated interest) by intercepting their tax refunds or garnishing their wages. The 

effect of the disqualification and seizure of money would be relevant to questions of actual 

notice and consequential damages, but it does not delay or negate the deprivation of the 

plaintiff’s rights. 

Because the Determination effected the Agency’s deprivation of the plaintiffs’ rights, the 

plaintiffs could have brought a § 1983 action immediately, before pursuing any administrative 

appeal or waiting for tangible harm. In fact, the statute of limitations would start upon receipt of 

the Determination. Therefore, the Questionnaire comprises the totality of the pre-deprivation 

process. The Determination’s offer of an appeal falls entirely under post-deprivation process. 

“An essential principle of due process is that a deprivation of life, liberty, or property be 

preceded by notice and opportunity for hearing appropriate to the nature of the case.” Cleveland 

Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (quotation marks and citation omitted; 

emphasis added). Thus, the Supreme Court has “described the root requirement of the Due 

Process Clause as being that an individual be given an opportunity for a hearing before he is 
Nos. 21-1407/2672 Cahoo, et al. v. SAS Inst., Inc., et al. Page 33

deprived of any significant property interest.” Id. (quotation marks, citation, and footnote 

omitted). 

Moreover, because this entire adjudication process was a preconceived and established 

government procedure, the law required pre-deprivation due process—meaning notice and 

hearing before the Determination—whereas post-deprivation process was insufficient (and 

irrelevant) as a matter of law. See Silberstein v. City of Dayton, 440 F.3d 306, 316 (6th Cir. 

2006) (explaining that “[w]hen a deprivation occurs through an established state procedure, then 

it is both practicable and feasible for the state to provide pre-deprivation process, and the state 

must do so regardless of the adequacy of any post-deprivation remedy” (quotation marks and 

citation omitted)); Logan v. Zimmerman Brush Co., 455 U.S. 422, 436 (1982) ( “[A]bsent the 

necessity of quick action by the State or the impracticality of providing any predeprivation 

process, a post-deprivation hearing here would be constitutionally inadequate.” (quotation marks 

and citation omitted)); Mitchell v. Fankhauser, 375 F.3d 477, 481 (6th Cir. 2004) 

(“Postdeprivation remedies do not satisfy due process where a deprivation of property is caused 

by conduct pursuant to established state procedure, rather than random and unauthorized action.” 

(quoting Hudson v. Palmer, 468 U.S. 517, 532 (1984))). Nothing about the MiDAS adjudication 

scheme suggests that “quick action” was even intended, much less necessary, or that predeprivation process was impractical. 

Moreover, the law required that the Questionnaire’s pre-deprivation notice and process 

had to meet certain standards. The notice must be “reasonably calculated, under all of the 

circumstances, to apprise interested parties of the pendency of the action and afford them an 

opportunity to present their objections,” and it “must afford a reasonable time for those interested 

to make their appearance.” Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950) 

(citations omitted). The manner or “means [of providing notice] must be such as one desirous of 

actually informing the absentee might reasonably adopt to accomplish it.” Id. at 315; Jones v. 

Flowers, 547 U.S. 220, 229 (2006). In substance or content, the notice “must set forth the 

alleged misconduct with particularity.” Cox v. Turley, 506 F.2d 1347, 1351 (6th Cir. 1974) 

(quoting In Re Gault, 387 U.S. 1, 33 (1967)); Memphis Light, Gas & Water Division v. Craft, 

436 U.S. 1, 98 (1978) (“[T]he purpose of notice is to apprise the affected individual of, and 
Nos. 21-1407/2672 Cahoo, et al. v. SAS Inst., Inc., et al. Page 34

permit adequate preparation for, an impending hearing.”). “The need for more specific notice is 

particularly critical when the regulations provide in lieu of an adversary hearing the opportunity 

to submit information in opposition to [the accusation].” Transco Sec., Inc. v. Freeman, 639 

F.2d 318, 324 (6th Cir. 1981); accord ATL, Inc. v. United States, 736 F.2d 677, 683 (Fed. Cir. 

1984). Therefore, the content of the Questionnaire had to state the accusation of fraud and the 

grounds for it with particularity such that the recipient would understand it; the means of 

delivering the Questionnaire had to be reasonably calculated to reach the recipients (“such as one 

desirous of actually informing the [recipient] might reasonably adopt to accomplish it”); and the 

process afforded the recipient had to provide a reasonable time and opportunity to oppose the 

accusation, particularly because it limits the recipient’s response to the submission information 

in lieu of an adversarial hearing.

Given those standards, the plaintiffs contend that the content of the Questionnaire does 

not provide (1) notice of the fraud accusation, (2) the grounds for that accusation, (3) the 

consequences of the impending Determination, (4) the information necessary to defend against 

or produce contra-evidence to the accusation, (5) a hearing at which to question the accusation 

and present a defense to the decisionmaker, or (6) a reasonable time to reply. See Cahoo v. Fast 

Enterprises LLC, 528 F. Supp. 3d 719, 757 (E.D. Mich. 2021). The defendants’ contention that 

the content of the Questionnaire form letters does provide that information creates a fact dispute. 

There is no need to refer to any law to resolve that dispute; one need only read the Questionnaire. 

The district court explained its assessment of the evidence: 

The plaintiffs in this case challenge not only the manner that the [Agency] 

officials chose to deliver the notices to claimants, but also the adequacy of the 

notice’s contents. They contend that the fraud questionnaires and the 

determination letters did not explain why the [Agency] suspected them of 

committing fraud, and that deficiency deprived them of their ability to make an 

informed response.

1. Fraud Questionnaires

Once MiDAS flagged a claim for overpayment, it automatically issued 

questionnaires to . . . claimants. A claimant’s failure to respond timely to a 

questionnaire resulted in a default determination that the claimant committed 

fraud. 
Nos. 21-1407/2672 Cahoo, et al. v. SAS Inst., Inc., et al. Page 35

Although a suspicion of fraud triggered the questionnaires, the basis for that 

suspicion was not communicated to the claimant. The questionnaire provided 

almost no notice whatsoever of the alleged misconduct, or that the failure to 

respond would result in a fraud determination. . . . 

There is no question that this [fraud] questionnaire woefully falls short of setting 

forth the alleged misconduct with particularity, or providing claimants a 

reasonable opportunity to know the claims of the opposing party and meet them. 

The notice refers generally to a ‘question of eligibility’ and mentions that [the 

Agency] may determine that a claimant committed fraud based on its ‘available 

information.’ But the questionnaire does not state what that information is, 

thereby limiting the opportunity to present objections intelligently.

Id. at 756-57 (emphasis added; editorial marks, quotation marks, citations omitted). 

As mentioned, for purposes of deciding this peculiar interlocutory, qualified-immunity 

appeal, we are bound to that assessment. See Bey, 946 F.3d at 312; Bunkley, 902 F.3d at 559. A 

jury might agree, or a jury might disagree (and find that the Questionnaire did provide sufficient 

notice and process), but that is a question for a jury. Our assessment of the Questionnaire—even 

a strong belief that every juror would necessarily find that it provides notice and process—

cannot, under existing precedent and Supreme Court guidance, trump the district court’s 

assessment. 

As for the two defendants here, Moffett-Massey and Geskey, the district court further 

framed the issue, set out the controlling law, and identified specific questions of fact for each of 

these two defendants that required determination by a jury. In framing the issue, it said:

None of the plaintiffs allege that any of the State defendants were involved 

personally in their fraud adjudications or subsequent collections. 

Instead, the plaintiffs allege that these defendants were responsible for applying 

MiDAS’s system of defective notices, logic trees that led to presumptive fraud 

determinations, and automated collection procedures that deprived them of the 

right to be informed of the accusations against them and to present their side of 

the story. 

When an automated system is alleged to be the culprit behind a constitutional 

deprivation like this, the plaintiffs’ theory of liability is a viable one. After all, as 

the court of appeals pointedly observed, ‘MiDAS did not create itself.’ 

Cahoo, 528 F. Supp. 3d at 748 (paragraph breaks inserted; citation omitted). 
Nos. 21-1407/2672 Cahoo, et al. v. SAS Inst., Inc., et al. Page 36

As the district court explained, “[s]upervisors cannot be held liable on a respondeat 

superior theory for claims brought under 42 U.S.C. § 1983,” but must either “set[] in motion a 

series of events that the [supervisor] knew or should reasonably have known would cause others 

to deprive the plaintiff[s] of [their] constitutional rights,” or “abandon the specific duties of his 

[or her] position in the face of actual knowledge of a breakdown in the proper workings of the 

department.” Id. (quotation marks, editorial marks, and citations omitted) (citing or quoting 

Troutman v. Louisville Metro Dep’t of Corr., 979 F.3d 472, 487 (6th Cir. 2020), Conner v. 

Reinhard, 847 F.2d 384, 396-397 (7th Cir. 1988), Heyerman v. Cnty. of Calhoun, 680 F.3d 642, 

647 (6th Cir. 2012), and Winkler v. Madison Cnty., 893 F.3d 877, 898 (6th Cir. 2018)). 

As for Moffett-Massey, the district court found that “the record allows an inference that 

she actively encouraged, authorized, or acquiesced to the rote application of logic trees and use 

of substantively deficient questionnaires and fraud determination notices.” Cahoo, 528 F. Supp. 

3d at 751. The court cited several facts from the record: (1) her advisor, Geskey, had “repeatedly 

recommended against the fraud finding decision trees . . . [and] insisted that fraud determinations 

must be based on competent material and substantial evidence”; (2) Moffett-Massey “was aware 

of the policy permitting the [Agency] commonly to adjudicate issues based on nothing but a 

failure to respond to allegations”; and (3) “[t]he record does not show that Moffett-Massey did 

anything to address this problem.” Id. at 750. If the jury were to believe that evidence, it could 

reasonably “infer that [Moffett-Massey] approved the policy and thereby abdicated her duty with 

active performance to ensure that the [Agency]’s process conformed with federal and State law.” 

Id.

The district court further found that “[t]he record also permits an inference that [MoffettMassey] actively approved the substance of the fraud determinations and questionnaires.” Id. 

The court pointed to: (4) Moffet-Massey’s own testimony that “the [Agency] was aware . . . that 

the forms might be deficient[] before she became director in April 2014”; (5) but “once she 

became director, it does not appear that she took any action to modify the content of those 

notices”; and that (6) “[h]er name appears on the form[s] . . . under the heading, ‘authorized by.’” 

Id. at 750-51. Thus, a jury could find that Moffett-Massey’s actions and inactions directly 
Nos. 21-1407/2672 Cahoo, et al. v. SAS Inst., Inc., et al. Page 37

violated the plaintiffs’ clearly established rights to due process, and she was not entitled to 

qualified immunity.

Moffett-Massey was the Agency Director, with full and final authority over every aspect 

of the Agency’s operations, including MiDAS, as well as final say over the content of the 

Questionnaire. The plaintiffs label it “confounding,” that she would contend that she did not 

approve of the forms even though she was the Director and her name is at the top. In her 

deposition testimony she admitted that she was aware of the substance of the forms, the use of 

logic trees, and the auto-adjudications. And, despite her authority as Director, she took no action 

to remedy or change any of those things. Overall, the evidence in the record allows an inference 

that she actively encouraged, authorized, or acquiesced to violations of their due process rights. 

The theme of Moffett-Massey’s deposition testimony was a Sergeant Schultz defense: “I 

see nothing! I hear nothing! I know nothing!” That is, although she was the Director in charge of 

the entire Agency, with all the benefits and responsibilities that entails, she claims that she has 

done nothing wrong nor did she know of any wrongdoing. If she testifies at trial, a jury could 

believe her. Or it could believe that she was in charge and should have known—or likely did 

know—and therefore disbelieve her denials. The point is, because the answer to the question of 

her liability would turn on her credibility, it is not a proper subject for summary judgment. 

As for Geskey, the district court found questions for a jury concerning his “involvement 

in creating or approving the defective forms.” Id. at 752. The court pointed to three record facts 

to support this: (1) “Geskey was the director of the policies and procedures group up to the 

implementation of MiDAS”; (2) “he should have reviewed the forms and noticed that they were 

almost completely devoid of substantive notice (particularly the questionnaire)”; and (3) despite 

this responsibility and authority, he “apparently found no fault with the notices that deprived 

claimants of their ability to confront the [Agency]’s suspicions intelligently.” Id. (quotation 

marks omitted). The court held that these “fact questions about Geskey’s role in approving the 

deficient questionnaires and fraud determination notices” precluded qualified immunity. Id.

In this appeal, Geskey argues that the forms were already developed when he took over 

the Policies and Procedures Group, and that he “did not have authority to make policies of 
Nos. 21-1407/2672 Cahoo, et al. v. SAS Inst., Inc., et al. Page 38

significant import or to unilaterally make decisions of broad import . . . [or] to unilaterally 

change forms or implement changes.” Nor did he review, develop, or approve any of the 

specific forms—he claims someone else did. Thus, he disputes the district court’s assessment of 

the record concerning his role in the development and approval of the forms, which is not 

appropriate in this appeal.

The plaintiffs answer that, while Geskey’s role may be muddled, he certainly played a 

role—either in advancing the problematic MiDAS program or failing to correct it. As a lawyer, 

former Agency Director, and then head of the Policies and Procedures Group, he was undeniably 

in a position of either real or advisory authority, such that he was (or should have been) aware of 

the problems. In his deposition, Geskey could not deny that he was employed at the Agency in a 

responsible role at the time, but he insisted that he neither did anything wrong nor knew of 

anything wrong, nor should he have known. A jury might believe him, or it might not. That is 

for a jury.

IV.

Ultimately, the district court determined that the evidence could permit a jury to find that 

the Questionnaire and associated process did not provide notice and an ability to defend, and that 

Moffett-Massey and Geskey were directly responsible for the MiDAS adjudication program. See

Cahoo, 528 F. Supp. 3 at 754-60. Consequently, the court denied qualified immunity. 

I agree with the district court and, therefore, I would affirm. Because the majority sees it 

differently, I respectfully dissent.