RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 17a0075p.06 

### UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

A ELEN UNAN and P ATRICIA Q UINTINO , on behalf of themselves and all others similarly situated, Plaintiffs-Appellants ,

v
.
N ICK L YON , in his official capacity as Director, Michigan Department of Community Health and Human Services, Defendant-Appellee

. ┐ │ │ │ │ │ │ │ │ │ │ ┘ No. 16-1185

Appeal from the United St ates District Court for the Eastern District of Michigan at Detroit. No. 2:14-cv-13470—Marianne O. Battani, District Judge Argued: November 29, 2016 Decided and Filed: March 31, 2017 Before: MOORE, SUTTON, and WHITE, Circuit Judges.

_________________ COUNSEL ARGUED: Anna M. Hill, MICHIGAN I MMIGRANT RIGHTS CENTER, Kalamazoo, Michigan, for Appellants. Joshua S. Sm ith, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Mich igan, for Appellee. ON BRIEF: Anna M. Hill, Susan E. Reed, MICHIGAN IMMIGRANT RIGHTS CENTER, Kalamazoo, Michigan, Marie K. DeFer, Edward J. Hoort, Veronica A. Perera, Lysa Postula-Stein, CENTER FOR CIVIL JUSTICE, Flint, Michigan, for Appellants. Jonath an S. Ludwig, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansi ng, Michigan, for Appellee. MOORE, J., delivered an opi nion in which WHITE, J., join ed in part. WHITE, J. (pg. 19), delivered a separate opinion concurring in all but Part II.B.1 of the lead opinion. SUTTON, J. (pp. 20–25), delivered a separate dissenting opinion. 

### >No. 16-1185 Unan et al. v. Lyon Page 2

_________________ OPINION

_________________ KAREN NELSON MOORE, Circuit Judge. Inthe course of implementing certain changes required by the Patient Protection and Af fordable Care Act of 2010 (“ACA”), the State of Michigan experienced a systemic computer problem that erroneously assigned thousands of non-citizens, who may have been eligible for comprehensive Medicaid coverage, to Emergency Services Only (“ESO”) Medicaid. Plaintiffs Aelen Unan and Patricia Quintino, two eligible noncitizen residents of Michigan w ho were erroneously assigned ES O coverage, filed a class action complaint against Nick Lyon, Director of the Michigan Department of Health and Human Services (“DHHS”), alleging violat ions of the Medicaid statute and the Due Process Clause of the Fourteenth Amendment. On cross-motions for summary judgment, the district court found that actions taken by the State since the complaint was filed had resolved all systemic errors. Finding plaintiffs’ claims to be moot, the district court granted defendant’s motion for summary judgment, denied plaintiffs’ motion for the same, and dismissed as moot plaintiffs’ motions for preliminary injunction and class cert ification. Plaintiffs now appeal the district court’s judgment. For the reasons set forth belo w, we hold that the plainti ffs’ claims are not moot, and REVERSE the district court’s grant of de fendant’s motion for summary judg ment. On the basis of grounds other than those relied upon by the district court, we AFFIRM the denial of plaintiffs’ motion for summary judgment as to their claims thatdefendant failed to provide comprehensive Medicaid coverage and a reasonab le opportunity to verify immigra tion status, and hold that there are fact issues precluding su mmary judgment for both plaintiffs and defendant. We hold that defendant is entitled to judgment as a matter of law on the remaining notice claims, and we REMAND the case for further proceedings.
I. BACKGROUND In 1986, Congress made comprehensive Medi caid benefits available to eligible noncitizens who attest to havi ng “satisfactory immigration status.” Pub. L. No. 99

‒ 603, § 121(a)(1), 100 Stat. 3359 (codified as amended at 42 U.S.C. §1320b

‒ 7(d)(4)(A)). Non-citizen applicants are required to present verified documentation to prove their immigra tion status. 42 U.S.C.No. 16-1185 Unan et al. v. Lyon Page 3
§ 1320b

‒ 7(d)(2). If an individual attests to his or her status, butdoes not submit or verify the required documentation, state Medi caid agencies are required to pr ovide that individual with a “reasonable opportunity” to provide documents ve rifying their eligible status. 42 U.S.C. § 1320b

‒ 7(d)(4)(A). In Michigan, DHHS 1 administers the state Medicaid program, which is known as the Healthy Michigan Plan. Appellee’s Br. at 3. On January 25, 2014, DHHS implemented various system changes required by the ACA. R. 22

‒ 6 (Hundley Aff. at 2) (Page ID #837). In the course of implementation, a systemic computer problem caused a number of applicants to be assigned automatically to ESO Medicaid, although they might otherwise be eligible for co mprehensive coverage. Specifically, non-citizen applicants who attested to, but failed to verify, their immigration status were automatically denied comprehensive coverage, and approved for ESO coverage only. Id. at 3 (Page ID #838). Denial of comprehensive coverage occurred without a reasonable opportunity to provide documents verifying an applicant’s eligible status. Id. Among these applicants were named plaintiffs Unan and Quintino. Their cases are nearly identical. Unan, a refugee, applied for Medicaid on April 2, 2014. Quintino, who became a legal permanent resident in 1998, applied for Me dicaid on April 1, 2014. Neither Unan nor Quintino was asked for documentation of her immi gration status, although each had previously provided such proof of status for her food assi stance case. Each recei ved a Health Coverage Determination Notice indicating that she had been approved for ESO Medica id. The letters did not include any language regarding denial of comprehensive Medicaid coverage. R. 28

‒ 3 (Health Care Determination Notices) (Page ID #976

‒ 83). On September 8, 2014, Unan and Quintino filed a class-action lawsuit for declaratory and injunctive relief against Nick Lyon, the Director of DHHS, 2 alleging that defendant (1) failed promptly to provide comprehensive Medicaid to pl aintiffs pursuant to 42 U.S.C. § 1396a(a)(8),

1 Prior to April 10, 2015, the Michigan Department of Community Health and Department of Human Services administered the state Medicaid program. Appellee’s Br. at ix n.1; see R. 22–6 (Hundley Aff. at 2) (Page ID #837). These Departments were subsequently merged by Executive Order 2015

‒4 into the new Michigan Department of Health and Human Services. Appellee’s Br. at ix n.1. 2 Originally two other state officers were named, but Nick Lyon, the current dir ector of DHHS, has been substituted.No. 16-1185 Unan et al. v. Lyon Page 4
10(A) (Count I); (2) failed to provide comprehens ive Medicaid to plain tiffs pending a reasonable opportunity to verify plaintiffs’ immigration status pursuant to 42 U.S.C. §§ 1396a(a)(8), 1320b

‒ 7(d)(4)(A) (Counts II and III); and (3) failed to provide plai ntiffs with ade quate notice and a meaningful opportunity to be h eard regarding the deni al of comprehensive Medicaid pursuant to 42 U.S.C. § 1396a(a)(3) and the Due Process Clau se of the Fourteenth Amendment (Counts IV and V). On the same date, plaintiffs filed a motion for preliminary injunction and a motion for class certification. Two days after the complaint was filed, Un an and Quintino were both determined by DHHS to be eligible for comprehensive Medicaid coverage retroactive to April 1, 2014. On August 2, 2014, DHHS, while working to correct the systemic computer problem, began approving for full Medicaid individual applicants who attested to eligible immigration status. R. 22

‒ 6 (Hundley Aff. at 3) (Pag e ID #838). DHHS applied other temporary fixes throughout November, and by the end of December, had re processed well over 16,000 cases in addition to those corrected manually. R. 69

‒ 10 (Woods Aff., Exh. B at 2

‒ 3) (Page ID #1755

‒ 56). Defendant claims that a “permanent correct ion for the ESO issue” was implemented by December 30, 2014. R. 45 (Def. Reply in Support of First Mot. to Dismiss and/or for Summ. J. at 2) (Page ID #1216). On March 24, 2015, the district court ordered the parties to prepar e revised notices for Medicaid applicants, and held in abeyance plaintiffs’ mo tions for preliminary injunction and class certification. R. 46 (Dist. Ct. Or der Denying Mot. to Dismiss) (Page ID #1247

‒48). On July 23, 2015, the district court stayed discovery pending resolution of dispositive motions. Both parties filed cross-motions for summary judgment 3 on August 31, 2015, and a hearing was held on October 8, 2015. R. 69 (Def. Second Mot. to Dismiss and/or for Summ. J.) (Page ID #1624– 73); R. 70 (Pls. Mot. for Summ. J.) (Page ID #1780–826). On January 11, 2016, the district court granted defendant’s motion for summary judgment, denied plaintiffs’ motion for summary judgment, and entered judgment for defendant. R. 83 (Dist. Ct. Order at 33) (Page ID #2443).

3 Defendant filed its first motion to dismiss and/or for summary judgment on November 24, 2014, which was denied without prejudice on March 24, 2015. R. 30 (Def. First Mot. to Dismiss and/or for Summ. J.) (Page ID #1021); R. 46 (Dist. Ct. Order Denying Mot. to Dismiss) (Page ID #1247

‒48).No. 16-1185 Unan et al. v. Lyon Page 5
Plaintiffs’ motions for class certification and pr eliminary injunction were dismissed as moot. Plaintiffs filed a timely notice of appeal.
II. JURISDICTION: Mootness
A. Standard of Review This court reviews jurisdictional issues de novo. Demis v. Sniezek , 558 F.3d 508, 512 (6th Cir. 2009). It is well established that a federal court must determine jurisdictional questions before proceeding to the merits. Children’s Hosp. Med. Ctr. of Akron v. Youngstown Assocs. in Radiology, Inc. , 612 F. App’x 836, 837 (6th Cir. 2015) ( citing Steel Co. v. Citizens for a Better Env’t , 523 U.S. 83, 111 (1998)). The Supreme Court has made clear that Arti cle III requires that “an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.” Preiser v. Newkirk , 422 U.S. 395, 401 (1975) (quotation marks omitted). A case may therefore become moot “when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” U.S. Parole Comm’n v. Geraghty , 445 U.S. 388, 396 (1980) (quoting Powell v. McCormack , 395 U.S. 486, 496 (1969)). Mootness doctrine, however, is “flexi ble” in the case of class actions. Wilson v. Gordon , 822 F.3d 934, 942 (6th Cir. 2016) (quoting Geraghty , 445 U.S. at 400). In general, “[ o ] nce a class is certified , the mooting of the named plaintiff’s cl aim does not moot the action, [and] the court continues to have jurisdiction to hear the merits of the action if a controversy between any class member and the defendant exists.” Brunet v. City of Columbus , 1 F.3d 390, 399 (6th Cir. 1993). Although dismissal is ordinarily require d when the named plai ntiff’s claim becomes moot before certification, we have r ecognized some exceptions to this general rule. Wilson , 822 F.3d at 942. The plaintiffs argu e that two such exceptions a pply in this case, namely, the “picking off” exception and the “inherently tr ansitory” exception. Appe llants’ Br. at 39–47. We consider each in turn.No. 16-1185 Unan et al. v. Lyon Page 6
B. Named plaintiffs’ indi vidual claims are not moot 1. “Picking off” exception The parties do not dispute that the named plaintiffs’ indi vidual claims became moot when, two days after the complaint was filed, they were approved for comprehensive Medicaid coverage retroactive to the date of their applicati ons. Appellants’ Br. at 36; Appellee’s Br. at 23. Plaintiffs argue, however that defendant cannot avoid litigation by strategically “picking off” named plaintiffs and settling their indi vidual claims. Appe llants’ Br. at 39. The “picking off” exception was developed to prevent defendants from strategically avoiding litigation by settling or buying off individual named plaintiffs in a way that “would be contrary to sound judici al administration.” Deposit Guar. Nat’l Bank v. Roper , 445 U.S. 326, 339 (1980). We need not wait until after class cer tification has been denied to apply this exception. Our cases recognize this exception even when a motion fo r class certification is still pending, because “the defendant is on notice that the named plaintiff wishes to proceed as a class, and the concern that the defendant ther efore might strategically seek to avoid that possibility exists.” Wilson , 822 F.3d at 947; see also Brunet , 1 F.3d at 400 (“If a tender made to the individual plaintiff while th e motion for certification is pending could prevent the courts from ever reaching the class action issu es, that opportunity is at the me rcy of a defendant, even in cases where a class action would be most clearly appropriate”) (quoting Susman v. Lincoln Am. Corp. , 587 F.2d 866, 870 (7th Cir. 1978)). We recently had an opportunity to address the “picking off” exception in Wilson , a case strikingly similar to the one before us. In Wilson , eleven named plaintiffs filed a class action complaint against various state officials char ged with administeri ng TennCare, Tennessee’s Medicaid program. 822 F.3d at 940–41. The plain tiffs alleged that as a result of problems relating to ACA-mandated updates to TennCare’s com puter system, plaintiffs experienced delays in their Medicaid eligibility determinations and did not receive fair hear ings on those delays. Id. at 941. A day before the hearing on class certifica tion, the State enrolled a ll named plaintiffs, as well as 100 other class members, in TennCare. Id. We held that the “picking off” exception applied, and pointed to the timing and method of relief to support our conclusion. Id. at 950–51.No. 16-1185 Unan et al. v. Lyon Page 7
Specifically, we found it relevant that the individu al claims were mooted on the eve of a hearing on the motion for class certification, and not before filing, despite the fact that plaintiffs had brought four similar cases to the State’s attention before the lawsuit was filed. Id. at 950 (“The exact timing of when the last cl aim of a class member identified by Plaintiffs was mooted . . . would also support a finding of mo tive.”). Moreover, we noted th at the claims did not become moot “through an established, standard pro cedure such that it might more clearly be characterized as ‘incidental’ or ‘a ma tter of standard operating procedure.’” Id. (citations omitted). Rather, “the State cr eated a new, ad hoc process,” providing further support for the inference that the state was atte mpting to avoid a class action. Id. at 951. There is sufficient evidence to support applying the “picking off” exception in this case. As was the case in Wilson , the timing here is suspect. The individual claims of the named plaintiffs were not resolved until after the lawsuit and contemporaneous motion for class certification were filed, despite the fact that th e State, by its own admission, became aware of the systemic issue as early as April 14, 2014, nearly five months prior to the initiation of this action. R. 22–6 (Hundley Aff. at 3) (Page ID #838). Defe ndant also quickly moved to moot the claims of Maria Vargas, a putative class member, as soon as she was identified in a motion to intervene as a potential representative. Appellants’ Br . at 42. Although Vargas’s claim was immediately resolved, her husband, who applied as a member of the same household on the same date as his wife, did not receive relief until a month later, when plainti ffs’ counsel informed DHHS that Vargas’s husband was in need of medical services not availabl e through ESO. R. 31

‒ 2 (Emails from Counsel at 2) (Page ID #1091). The exact timing of when these claims were mooted supports a finding that defendant was strategically seek ing to avoid litigat ion by selectively resolving the claims of any poten tial representatives as soon as they became known to defendant. Nor can defendant demonstrate that plai ntiffs’ claims became moot through an established, standardized procedure. 4 The failure simultaneously to resolve the claims of all

4 The dissent argues that the exception should not appl y because DHHS “‘picked off’ the entire putative class—which is to say it gave everyone just what they wanted.” The evidence suggests otherwise. Although DHHS claims to have implemented a systemic fix, the relief granted to the individual named plaintiffs was granted on an ad hoc basis, and, as the case of Maria Vargas demonstrates, was directed only at those individuals identified as potential class representatives. In all cases, DHHS moved to grant specific relief only once it was put on notice thatNo. 16-1185 Unan et al. v. Lyon Page 8
members of the Vargas household is evidence of this. See Appellants’ Br. at 42. Rather, defendant, like the defendants in Wilson , created a new ad hoc proce ss and mooted the individual named plaintiffs’ claims on a case-by-case basis af ter they were identified in this lawsuit. Wilson , 822 F.3d at 951. Although the dissent assert s that DHHS implemented a systemic fix alongside these ad hoc changes, the fact remains that not one of the individuals identified as a named plaintiff or potential named plaintiff was granted relief on th e basis of a systemic fix. As was the case in Wilson , “the State in this cas e did not moot Plainti ffs’ claims through an established, standard proce dure such that it might more clearly be characterized as ‘incidental’ or ‘a matter of standard operating procedure.’” Id. at 950 (citations omitted). The “picking off” exception therefore should apply in this case. 2. “Inherently transitory” exception Plaintiffs next claim that the “inherently tran sitory” exception to m ootness also applies in this case. In order for this ex ception to apply, two requi rements must be met. First, the injury must be “so transitory that it would likely evad e review by becoming moot before the district court can rule on cl ass certification.” Wilson , 822 F.3d at 945. Second, it must be clear that “other class members are suffering the injury.” Id. Plaintiffs clearly satisfy the first require ment. The key inquiry for assessing whether something is transitory is not merely how long a claim is likely to remain active. Rather, “the crux of the ‘inherently transitory’ exception is the uncertainty about the length of time a claim will remain alive.” Gawry v. Countrywide Home Loans, Inc. , 395 F. App’x 152, 158

‒ 59 (6th Cir. 2010) (citation omitted). Where a state may quickly and unilaterally grant relief to an individual once litigation begins, we have found that a claim may be transitory even where the claim could theoretically remain live for weeks, if not months. Wilson , 822 F.3d at 945. In Wilson , we applied the inherently transitory excep tion to a similar class of plaintiffs, whose claims for a hearing on Medicaid eligibility co uld be resolved quickly by the state Medicaid agency. Id. at 947. As was the case in Wilson , a named plaintiff in this case does not know whether her case will remain alive sufficiently long to enable a distri ct court to certify a class.

a particular individual could represent the class, which raises “the concern that the defendant therefore might strategically seek to avoid” the possibility of a lawsuit. Wilson , 822 F.3d at 947.No. 16-1185 Unan et al. v. Lyon Page 9

Id. at 946. Where resolution involves such uncerta inty, we conclude that the injury is “so transitory that it would likely evade review.” Id. at 945. Plaintiffs also satisfy th e second requirement. Affidavits submitted by defendant demonstrate that hundreds of erroneous assignm ents to ESO occurred after DHHS claimed to have implemented a permanent fix in December 2014. R. 58

‒ 3 (Roderick Aff. at 3

‒4) (Page ID #1382

‒ 83); R. 69

‒ 2 (Suppl. Roderick Aff. at 3) (P age ID #1679). Through August 2015, plaintiffs’ counsel had referred ninety additional individuals w ho had received erroneous ESO assignments. Appellee’s Br. at 48. Moreover, pl aintiffs have put forth evidence that these assignments occurred as a result of systemic, rather than human, error. See, e.g. , R. 70–14 (June 2015 Def. Emails at 11) (Page ID #1997); R. 70–10 (July 2015 Def. Emails) (Page ID #1983– 84); R. 70–11 (May 2015 Def. Emails) (Pag e ID #1985–87); R. 70–12 (June 2015 Def. Emails) (Page ID #1988–90). Although courts may not de mand perfection from agencies implementing complex programs, the evidence here indicates th e persistence of a systemic problem. Here, regular, periodic misassignment of hundreds of individuals continued to occur despite DHHS’s claims that a systemic fix was in place. Under these circumstances, it is clear that “other class members are suffering the injury” that Unan and Quintino experienced. Wilson , 822 F.3d at 945. We therefore conclude that the “inhere ntly transitory” exception applies here. C. The putative class claims are not moot
1. Notice claims Defendant makes two mootness claims that pe rtain to the class as a whole. First, defendant states that th e claims of the proposed “notice cla ss” are moot because notices were mailed out alerting applicants of th eir right to appeal. R. 69 (Def. Second Mot. to Dismiss and/or for Summ. J. at 8

‒ 10) (Page ID #1645

‒47). As to the notice claims, the parties agree that the only remaining issue for the proposed notice class concerns the retroactive notices sent to individuals assigne d to ESO from January 2014 to May 2015. Appellants’ Br. at 56; Appellee’s Br. at 8. Plaintiffs claim that the notices mailed out to these individuals violate the class members’ due-process rights. Specifically, they argue that the notices are inadequate because th ey do not inform applicants about the specificNo. 16-1185 Unan et al. v. Lyon Page 10
time period during which they may have been e rroneously assigned to ESO, and are therefore insufficient to alert individuals as to the precise questions relating to their eligibil ity. Appellants’ Br. at 56

‒ 57. Plaintiffs’ claims are not mooted by virtue of the simple fact that the notices were sent out. The issue of the adequacy of the notices sent out goes to the merits of the notice claims, not to mootness. See infra Part III.C (addressing merits of notic e claims). If th e language contained in the notices failed to meet federal statutor y or constitutional standards, the class members would continue to suffer that harm whether or not these letters were received from DHHS. Because the claims of the class are still “live,” the notice claims are not moot. See Geraghty , 445 U.S. at 396. 2. Claims of erroneous assignments caused by systemic error Defendant next contends that the remaining claims of the class are moot because of DHHS’s subsequent efforts to remedy the errors that caused Unan’s and Quintino’s injuries. R. 69 (Def. Second Mot. to Dismiss and/or for Summ. J. at 12

‒ 15) (Page ID #1649

‒ 52). Defendant maintains that the systemic problem ha s been fixed, and that any subsequent errors occurred as a result of normal worker error. Id. at 12–13 (Page ID #1649–50).
“It is well settled that a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to de termine the legality of the practice.” City of Mesquite v. Aladdin’s Castle, Inc ., 455 U.S. 283, 289 (1982). In order to establish that a case is moot, the party asserting mootness “bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. , 528 U.S. 167, 190 (2000). Here the “wrongful behavior” at issue is not any erroneous assignment of a non-citizen to ESO Medicaid. The law does not require that a state Medicaid agency implement a flawless program. See Frazar v. Gilbert , 300 F.3d 530, 544 (5th Cir. 2002) (“Perfect compliance with such a complex set of requirement s is practically impossible, and we will not infe r congressional intent that a state achieve the impossible”), rev’d on other grounds , Frew v. Hawkins , 540 U.S. 431, 436 (2004). Rather, we consider whether it is absolutely clear that a systemic computerNo. 16-1185 Unan et al. v. Lyon Page 11
problem of the type that caused Unan’s and Quin tino’s injuries could not reasonably be expected to recur. Defendant failed to put forward sufficient evidence to meet this standard. Although there is evidence that DHHS took significant steps to correct the systemic problem, evidence of substantial compliance does not moot a case unle ss it is “absolutely clear” that the violations could not reasonably recur. See Laidlaw , 528 U.S. at 193 (holding th at defendant’s “substantial compliance with its permit requirements[] might moot the case[] but . . . only if . . . these events made it absolutely clear that [defendant’s viol ations] could not reasonably be expected to recur.”). Here, defendant argues that by th e end of December 2014, over 16,000 cases were reprocessed and corrected. Appelle e’s Br. at 7. He points to affidavits from DHHS officials stating that “all systemic issues identified to date [had] been corrected.” R. 69

‒ 2 (Suppl. Roderick Aff. at 4) (Page ID #1680). Plaintiffs, on the other hand, ar gue that there is evidence inthe record to support the inference that systemic errors continued to oc cur after December 2014, when defendant claimed to have fixed the systemic issue. Plaintiffs point, in particular, to one email dated June 22, 2015, six months after the purported permanent fix: [t]his case keeps flipping from full MA to ESO, we have the alien card but when we put it in it reverts to ESO . . . We have a few of these that we know of and we are calling them in today but there are probably more that we don’t know about as the some [sic] workers are not checking the type of MA being approved and we don’t find out until the client calls. This case has everything correct on it and still is approving ESO. R. 70

‒ 14 (June 2015 Def. Emails at 11) (Page ID #1997). Additional emails from 2015 discuss erroneous assignments to ESO and the need to apply overrides to resolve those errors. R. 70

‒ 11 (May 2015 Def. Email at 1

‒ 2) (Page ID #1986

‒ 87); R. 70

‒ 10 (July 2015 Def. Email at 21) (Page ID #1984); R. 70

‒ 12 (June 2015 Def. Email at 84) (Page ID #1989). Plaintiffs also point out that hundreds of e rroneous assignments occurred after the system was declared by DHHS to be permanently fi xed in December 2014. Appellants’ Br. at 51

‒ 52. R. 58

‒ 3 (Roderick Aff. at 3

‒4) (Page ID #1382

‒ 83); R. 69

‒ 11 (Nelson Aff., Exh. at 1

‒ 5) (Page ID #1762

‒ 66). For example, from December 11, 2014 through May 18, 2015, 898No. 16-1185 Unan et al. v. Lyon Page 12
individuals were erroneously assi gned to ESO Medicaid. R. 58

‒ 3 (Roderick Aff. at 3

‒4) (Page ID #1382

‒ 83). From May 19, 2015 to August 14, 2015, 246 indivi duals were erroneously assigned to ESO. R. 69

‒ 2 (Suppl. Roderick Aff. at 3) (Page ID #1679). Given the evidence on the record, we cannot say that it is “absolutel y clear the allegedly wrongful behavior could not reason ably be expected to recur.” Laidlaw , 528 U.S. at 190. Although DHHS has apparently undertaken significant efforts to remedy this problem, the effect of these fixes on the prospect of future violat ions is a factual dis pute that remains open. Id. at 193 (holding a case was not moot where “[t]he eff ect of [defendant’s substantial] compliance and the facility closure on the prospe ct of future violations is a disputed factual matter.”). The district court erred in concluding that the claims of the putative class are moot, and we reverse its grant of defendant’s motion for summary judgment. III. ANALYSIS: Summary Judgment
A. Standard of Review
We review de novo a district cour t’s grant of summary judgment. Lindstrom v. A-C Prod. Liab. Trust , 424 F.3d 488, 492 (6th Cir. 2005). Summ ary judgment is appropriate where “there is no genuine dispute as to any material fact and the movantis entitled to judgment as a matter of law.” Fed. R. Civ. P. 56. The district c ourt must view the facts and draw all inferences “in the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986) (quotation marks omitted). B. Erroneous assignments in vi olation of the Medicaid statute After correctly determining that a court coul d provide plaintiffs with only prospective relief to prevent an ongoing violation of federa l law, R. 83 (Dist. Ct. Order at 8) (Page ID #2418), the district court denied plaintiffs’ motion for summary j udgment because “there are no potential plaintiffs remaining to whom it could issue prospective relief,” id. at 30 (Page ID #2440). As explained above, the di strict court erred in holding that the claims of the entire putative class were moot. However, because plai ntiffs failed to demonstrate that there is no genuine dispute of material fact as to whether defendant’s ongoi ng pattern and practice violatesNo. 16-1185 Unan et al. v. Lyon Page 13

the Medicaid statute, we affirm the district court’s denial of plaintiffs’ motion for summary judgment as to the claims that defendant failed promptly to provide comprehensive coverage indefinitely, failed to provide comprehensive coverage pendi ng a reasonable opportunity to verify immigration status, and failed to provide non-citizens a reasonable opportunity to verify immigration status. With respect to these clai ms, genuine disputes conc erning material facts remain, and thus summary judgment for both sides is inappropriate. In their motion for summary judg ment, plaintiffs contend that there is no genuine dispute that defendant’s ongoing pattern and practice viol ates the Medicaid statute by failing timely to provide to non-citizens comprehe nsive Medicaid coverage or a reasonable opportunity to verify their immigration status. R. 70 (Pls. Mot. for Summ. J. at 8

‒ 23) (Page ID #1801

‒ 16). Plaintiffs have put forth some evidence that a systemic issue persists. A June 22, 2015, internal DHHS email indicates that at least six months afte r the purported permanent fix, those employed by the agency continued to observe the computer syst em “flipping [cases] from full [Medicaid] to ESO,” which led at least one worker to believ e “there are probably mo re that we don’t know about as the some [sic] workers are not checking the type of [Medicaid] being approved and we don’t find out until the client calls.” R. 70

‒ 14 (June 2015 Def. Emails at 4) (Page ID #1997). Contrary to defendant’s contention that subsequent errors were caused by worker error, additional emails suggest a problem with “Bri dges,” the computer system used to process information and determine Medicaid eligibility. See Appellee’s Br. at 7. For example, a June 23, 2015 email stated that Bridges had assigned an applicant to ESO despite documentation that supported full coverage, and that “Bridges continues to error this case out.” R. 70

‒ 12 (June 2015 Def. Email at 84) (Page ID #1989). Another em ail from July 13, 2015, noted the “problems . . . caused by Bridges auto certifying Medicaid cases,” including problems related to ESO coverage. R. 70

‒ 10 (July 2015 Def. Email at 21) (Page ID #1984). Moreover, plaintiffs put forth facts demons trating that numerous individuals were erroneously assigned to ESO even after the purported permanent fix to the systemic errors was implemented in December 2014. Appellants’ Br. at 52; R. 58

‒ 3 (Roderick Aff. at 3

‒4) (Page ID #1382

‒ 83); R. 69

‒ 11 (Nelson Aff. at 5

‒ 9) (Page ID #1762

‒ 66); R. 69

‒ 2 (Suppl. Roderick Aff. atNo. 16-1185 Unan et al. v. Lyon Page 14
3) (Page ID #1679). From the evidence presented, it app ears that hundreds of erroneous assignments routinely occurred af ter the systemic issues were declared by DHHS to be fixed. Through affidavits, defendant denies that a sy stemic computer problem exists, and argues that the remaining erroneous assignments are a result of human error. R. 69

‒ 2 (Suppl. Roderick Aff. at 4 (Page ID #1680). He argues that the low error rate observed since the permanent fix supports the inference that erroneous assignm ents are caused merely by worker error.
Plaintiffs have failed to demons trate that they are entitled to judgment as a matter of law on this issue. Drawing all inferences in the ligh t most favorable to the defendant on plaintiffs’ motion for summary judgment, we must conclude that plaintiffs cannot definitively demonstrate that defendant’s current patterns and practices violate the Medicaid statute. Although internal DHHS emails suggest that systemic errors persist, the language of these em ails is speculative. For example, in the June 22, 2015 email, the worker’s suspicion that “there are probably more” erroneous assignments caused by a computer error is informed only by her personal experience of entering data into the system. R. 70

‒ 14 (June 2015 Def. Emails at 11) (Page ID #1997). Although plaintiffs can point to hundreds of erroneous assignments since the purported “permanent fix,” they have not put forth sufficient evidence to re but defendant’s claim that these were the result of worker error. Based on the ev idence before us, we conc lude that there is a genuine dispute of material fact with regard to plaintiffs’ claims that defendant, as a result of DHHS’s ongoing patterns and practices, failed to provide comprehensive coverage or a reasonable opportunity to verify immigration status (Counts I, II , III). We emphasize that the presence of this genuine dispute of material fact means that summary judgment should not be awarded either to plaint iffs or to defendant.
C. Notice Claims Since the commencement of this action, the parties have resolved many of the notice issues indicated in the complain t, including through revised notices sent to individuals assigned to ESO Medicaid on or about May 4, 2015 and onward. See Appellants’ Br. at 20; Appellee’s Br. at 7

‒ 8. The remaining issue on appeal concerns retroactive notices for individuals assignedNo. 16-1185 Unan et al. v. Lyon Page 15
to ESO Medicaid between January 2014 and May 2015. R. 69

‒4 (Chrysler Aff. at 6) (Page ID #1706). Plaintiffs argue that they are entitled to summary judgment because the retroactive notices do not include the specific dates the in dividual was assigned to ESO Medicaid, and that the notices therefore do not adequately inform applicants about th e precise questions raised about their eligibility. Appellants’ Br. at 57; see R. 69

‒4 (Chrysler Aff., Exh. A at 1) (Page ID #1706) (“Our records show that you have or had Emer gency Services Only (E SO) Medicaid between January 2014 and May 2015.”). In the context of the denial of public bene fits, due process require s that the individual receive “timely and adequate no tice detailing the re asons for a proposed termination, and an effective opportunity to defend by confronting any adverse witnesses and by presenting his own arguments and evidence orally.” Goldberg v. Kelly , 397 U.S. 254, 267

‒ 68 (1970). Due process, however, “is flexible and calls for such proce dural protections as the particular situation demands.” Rosen v. Goetz , 410 F.3d 919, 928 (6th Cir. 2005) ( quoting Mathews v. Eldridge , 424 U.S. 319, 334 (1976)). In considering whether due process is met, th erefore, we weigh the private interest at stak e; “the risk of an erroneous depr ivation”; the government’s interest, including the burden of imposing additional procedur al requirements; and “the probable value, if any, of additional or substitute procedural safeguards.” Mathews , 424 U.S. at 335. The retroactive notices clearly indicate th e reason for the denial of full Medicaid coverage. The letter states that the applicant wa s “denied full Medicaid coverage because we did not have information about your immigration stat us that showed you qualified for full Medicaid, or, according to the information we did have about your immigration status, you were not eligible for full Medicaid.” R. 69

‒4 (Chrysler Aff., Exh. A at 1) (P age ID #1706). It also offers an opportunity for a hearing, provide s specific instructions as to how the individual can appeal the decision, and attaches a c opy of a Hearing Request form. Id. The enclosed form is prepopulated with the precise reason the individual is seeking the appeal. Id. at 2 (Page ID #1707). In light of this evidence, we conclude that there is no genuine dis pute of material fact with regard to plaintiffs’ notice claims, and that defendant is entitled to judgment as a matter ofNo. 16-1185 Unan et al. v. Lyon Page 16
law. Although the private interest here is hig h, the notices alleviate the risk of erroneous deprivation by alerting Medi caid applicants of their right to a hearing and enclosi ng copies of the hearing form. The enclosed form includes th e precise reason the indi vidual is seeking the appeal, which decreases the possibility of confusion over the appeals process. Although plaintiffs argue that the notices deny due process by failing to sp ecify the particular time period when the individual was erroneously assigne d to ESO, the burden on the government of providing such individualized notices would be high, and such individua lized notices would confer a minimal benefit on individuals who have already received past notices regarding ESO coverage. Plaintiffs have put forward no eviden ce demonstrating that know ledge of the specific time period is necessary to the appeals process, or that the time period would not be easily discoverable by the indivi dual from past notices.
The retroactive notices do not violate due process. We therefore hold, on grounds other than those relied upon by the district court, that defendant is entitled to judgment as a matter of law on plaintiffs’ notice cl aims (Counts IV and V). IV. ANALYSIS: Discovery
Plaintiffs contend that the di strict court erred in holding discovery in abeyance in the middle of the scheduled di scovery period. They fa iled, however, to file a motion or affidavit under Federal Rule of Civil Pro cedure 56(d), or otherwise to make specific objections or statements to the district cour t that additional discovery was re quired. Because plaintiffs failed properly to preserve this issue, we cannot conclude that the distri ct court abused its discretion by not allowing additional time for discovery. Federal Rule of Civil Procedure 56(d) states that: [i]f a nonmovant shows by af fidavit or declaration that, for specified reasons, it cannot present facts essentia l to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order. We have observed that filing an affidavit that complies with Rule 56(d) is essential, and that in the absence of such a motion or affida vit, “this court will not normally address whether there was adequate time for discovery.” Plott v. Gen. Motors Corp. , 71 F.3d 1190, 1196 (6thNo. 16-1185 Unan et al. v. Lyon Page 17
Cir. 1995). Generally, this filing must “indicate to the district court its need for discovery, what material facts it hopes to uncove r, and why it has not previouslydiscovered the information.” Cacevic v. City of Hazel Park , 226 F.3d 483, 488 (6th Cir. 2000). However, a formal affidavit may not be required “when a party has clearly explained its need for more discovery on a particular topic to the district court prior to or contemporaneously with the motion for summary judgment.” United States v. Rohner , 634 F. App’x 495, 504 (6th Cir. 2015) ( citing Abercrombie & Fitch Stores, Inc. v. Am. Eagle Outfitters, Inc. , 280 F.3d 619, 627–28 (6th Cir. 2002)). Plaintiffs argue that they suggested the n eed for further discovery on multiple occasions prior to the district court’s deci sion to hold discovery in abeyance. They point, for example, to their response to defendant’s motion to strike or for protective order, where plaintiffs stated that “there are still questions as to the ongoing extent of Defendant’s pattern and practice,” and that plaintiffs would therefore “need discovery c oncerning the allegations in Plaintiffs’ Class Complaint and the defenses raised in Defendant’s an swer.” R. 67 (Pls.’ Br. in Resp. to Mot. to Strike at 9–10) (Page ID #1476–77). However, just te n days after this filing, plaintiffs filed their own motion for summary judgment. At a later hearing, plaintiffs informed the court that: plaintiffs believe that summary judgment c ould be granted for the plaintiffs on the facts that we know at this time, but if it this Court believes that it’s essential to know exactly what has caused these errors . . . we don’t have the full knowledge of that cause. R. 87 (Mot. Hr’g Tr. at 15) (Page ID #2463). Plaintiffs failed to object contemporaneouslyto the district c ourt’s decision to hold discovery in abeyance. R. 94 (Pretrial C onf. Tr. at 36–37) (Page ID #2715–16). At oral argument in this court, plaintiffs conceded that they did not indicate to the district court a particular person to be deposed or documents to be produced that were necessary for the fair adjudication of this case. Plaintiffs here have failed to comply not only with the formal requirements of Rule 56(d), but also its substance. See Rohner , 634 F. App’x at 504–05. We th erefore cannot conclude that the district court abused its di scretion in holding discovery in abeyance pending the resolution ofNo. 16-1185 Unan et al. v. Lyon Page 18
dispositive motions. On remand, the district court may revisit the propriety of further discovery in light of the issues presented after this appeal.
V. CONCLUSION Based on the foregoing, we hold that the plaintiffs’ claims are not moot, and REVERSE the district court’s grant of de fendant’s motion for summary judg ment. On the basis of grounds other than those relied upon by the district court, we AFFIRM the denial of plaintiffs’ motion for summary judgment as to their claims thatdefendant failed to provide comprehensive Medicaid coverage and a reasonab le opportunity to verify immigra tion status, and hold that there are fact issues precluding su mmary judgment for both plaintiffs and defendant. We hold that defendant is entitled to judgment as a matter of law on the remaining notice claims, and we REMAND the case for further proceedings.No. 16-1185 Unan et al. v. Lyon Page 19

________________________

CONCURRING IN PART

________________________ HELENE N. WHITE, Circuit Judge , concurring in part. I agree with Judge Sutton that if the district court correctly de termined that the st ate had already granted the relief sought— compliance with the Medicaid statute as to all putative class members, subject to a de minimis error rate—then the court correctlydismissed plaintiffs’ erroneous -assignment claims as moot. On this record, however, there is a genuine dispute whether th at class-wide relief had been granted. Defendant attributes any ongoing erroneous assignments of emergency-services-only Medicaid (ESO) to human error. But plaintiffs produced an email showing that even after the state implemented a permanent fix to its computer system, the system “flipped” multiple applicants who were eligible for full Medicai d to ESO coverage, and did so despite human attempts to correct the misassignment. Def. Em ails, R. 70-14, PID 1997. I also agree with Judge Sutton that the possibility of future mistakes is not enough to avoid mootness. Here, however, the record sufficiently suggests an existing and continuing probl em in the state’s computer system. This contrasts with occasional human error consisting of one-off mistakes, which must be expected in any large, complicated governme nt program. The state cannot be expected to operate its Medicaid enrollment process flawlessly, but it can be expected to cure continuing problems, such as its system erroneously “fli pping” applicants from full Medicaid to ESO coverage. Plaintiffs thus established a genuine dispute of material fact regarding whether the state had complied with the Medica id statute and had granted the pl aintiff class complete relief. For this reason, I join in Judge Moore’ s “inherently trans itory” analysis. See Lead Op. at 8–9. I do not, however, join in Part II.B.1, which concludes that the “picking off” exception also applies. I am not convinced the record establishes that exception, and find it unnecessary to reach the issue given that the “inheren tly transitory” exception applies. I concur in the remainder of Judge Moore’ s opinion for the reasons stated therein.No. 16-1185 Unan et al. v. Lyon Page 20

_________________ DISSENT

_________________ SUTTON, Circuit Judge, dissenting. This case is moot. Unan and Quintino filed this lawsuit to require Michigan to fix an error in its computer system that assigned non-citizens to the wrong Medicaid eligibility cat egory. Michigan has done just that. Unan and Quintino also asked Michigan to provide them and the member s of a putative class Medicaid benefits and constitutionally adequate notice. Michigan has done that too—for every member of the putative class. At this point, Unan and Quintino canno t identify a single immigrant covered by their putative class action to whom the State should be provi ding benefits but is not. The explanation for the plaintiffs’ request to continue the case at this point is not that the State will change its mind and undo the fix to its computer system. It’s that the State may make another mistake in the future in allocating these benefits. The premise is accurate; the conclusion is not. No public agency, including this court, can insulate itself from the possibility of future mistakes. If the possibility of future mist akes suffices to invoke the “picking off” and “inherently transitory” exceptions to mootness, I am hard pressed to understand when they would not apply to the implementation of an ongoing bene fits program. Instead of “narrow” exceptions to the mootness doctrine, Gerstein v. Pugh , 420 U.S. 103, 110 n.11 (1975), they would become Article III overrides, sufficiently elastic to apply whenever this or that claimant wanted to apply them. No State can guarantee that its comp uter systems will operate flawlessly for every applicant, whether immigrant or citizen, and corre ctly assign Medicaid benefits. That is an unclimbable mountain. I would follow Judge Battani’s lead, dismiss this case as moot, and reject the plaintiffs’ reliance on the “picking off” and “inherently transitory” exceptions to mootness. The majority seeing it otherw ise, I respectfully dissent. The “picking off” exception to mootness do es not apply in this instance for a straightforward reason. Michigan did not “strat egically avoid[] litigation by settling or buying off individualnamed plaintiffs.” Lead Op. at 6 (empha sis added). It “picked off” the entire putative class—which is to say it gave everyone just what they wanted. If that’s what we call “picking off,” I doubt ther e is a potential claimant in the country that would object to it. SinceNo. 16-1185 Unan et al. v. Lyon Page 21

when, moreover, is it the business of the federal courts to punish, or to be suspicious about, this form of state action? Michigan fixed the computer problem that “wrongfully den[ied] comprehensive Medicaid, and instead assign[ed] ESO [Emergency Services Only] Medicaid, to eligible Michigan residents who are qualified aliens” by the end of 2014. R. 1 at 47. And by April 2015, the Michigan Department of Co mmunity Health and Human Services had reprocessed thousands of Medicaid applications and retr oactively given full Medicaid benefits to the 2,895 individuals whom the Department had m oved to Emergency Services Only coverage but had not yet sent revised notices to. The Department began mailing revised notices, which Unan and Quintino accept as constitutionally adequate, to new Emergency Services Only recipients on May 4, 2015. That’s all the compla int asked for. Once received, that relief required an Article III court to dismiss the case as moot, just as the district court correctly did. The exception also does not apply for a s econd reason. The Supreme Court has applied the exception only after the district court ha s ruled on class certif ication, not before. See Deposit Guar. Nat’l Bank v. Roper , 445 U.S. 326, 339–40 (1980). The lead opinion’s application of the “picking off” exception overlooks th e reason that the Supreme Court considered that concern in the first place: to “[p]ermit[] appeal of the distri ct court’s certifi cation ruling.” Id. at 339. In this case, there is no certification ruling and no remaining member of the putative class either. The Department made the putativ e class whole; it didn’t “pick off” a few named plaintiffs to prevent review of a cl ass-certification order.
Wilson v. Gordon , 822 F.3d 934 (6th Cir. 2016), does not lead to a contrary result. In that case, Tennessee limited its actions to named plainti ffs and a small portion of the putative class. Id. at 941. In this case, Michigan granted relief to the en tire putative class. That’s called capitulation, not maneuvering—a surr ender, not a strategic retreat. The idea behind the “picking off” exception is the risk of “invi t[ing] waste of judicial resources by stimulating successive suits brought by others claiming aggrievement.” Roper , 445 U.S. at 339. How is that a risk here? Neither the plaintiffs nor the lead opinion can identify a single putat ive class member who remains aggrieved. Nor is the timing of relief suspect. Hundreds of thousands of Michigan residents became eligible for Medicaid for the fi rst time on April 1, 2014. While struggling to process the influxNo. 16-1185 Unan et al. v. Lyon Page 22
of applications, the Department became aware of problems with the computer system on April 14, 2014, and immediately began to correct the issu e for all applicants. The Center for Civil Justice contacted the Department about the issu e, and the Department promised to fix the problem by the end of the year and to use a ma nual override to provide Medicaid benefits to eligible residents in the meantime. By August 3, 2014, the De partment had implemented a shortterm fix to the computer system s so that post-August 3 applican ts claiming eligible immigration status received full Medicaid and an opportunity to dispute any contra ry assignment. All of that happened before Unan and Quintino filed this lawsuit. When the plaintiffs sued the Department, Michigan promptly gave Unan and Quintino comprehensive Medicaid benefits. The Departmentdid the same for any eligible individual, whether Maria Vargas, her husband, or anyone else who notified the Department of an error. True, the Department restored benefits to thes e individuals on an ad hoc basis. True also, that happened in one sense in Wilson . But in contrast to Wilson , where a new ad hoc process for a limited slice of the putative class was the only procedural change the State made, the Department’s ad hoc reassignments took place alongside an ongoing and comprehensive computer system fix. 822 F.3d at 951. Michigan has fixed the computer system and reprocessed all of the applications through this established, st andardized procedure. On this record, no one who should be receiving benefits is not receiving benefits . What more can plai ntiffs or the court fairly ask of the State? And what good woul d it do to wait to run the named and potential plaintiffs’ applications back through the now fixed computer syst em? To apply the “picking off” exception here, it seems to me, runs the risk of turning it into a caricature and encourages defendants to delay relief until the comprehensive fi x is already in place. The reality that the Department initially granted a few applicants relief on a case-by-case basis does not grant us jurisdiction over this class action ye ars after plaintiffs received all of the benefits they asked for and were entitled to, and years af ter the Department had establishe d a standardized procedure to deal with similar concerns. The “inherently transitory” exception fares no better. Wilson identified two requirements for applying this exception: “(1) that the injury be so transitory that it would likely evade review by becoming moot before the district court can rule on class certification, and (2) that it is certainNo. 16-1185 Unan et al. v. Lyon Page 23
other class members are suffering the injury.” Id. at 945. Tennessee conceded the second requirement in Wilson . But Michigan challenges it here. And it’s the failure to meet the second requirement that should end this case. Unlike Wilson , where Tennessee provided speedy Medicaid determinations only for the named pl aintiffs and 100 individuals of their choosing, id. , the Department has resolved the computer is sues for all putative class members and sends adequate notice to all new applicants with indeterminate immigration status. The record evidence since the computer fi xes bear this out. From May 19, 2015 to August 14, 2015, the Department received 150,641 Medicaid applications for 230,217 individuals. It assigned Emergency Services Only for just 3,595 cases and 4,378 individuals. “218 of the cases, affecting 246 individuals, were erroneously assigned ESO,” which means that “[0].015% of total Medicaid applic ations resulted in an errone ous ESO assignment and [0].011% of individuals seeking Medicaid were erroneously assigned ESO. . . . Looking only at the ESO assignments, 6.1% of ESO case assignments were erroneous and 5.6% of ESO assignments for individuals were erroneous.” R. 69-2 at 4–5. At oral argument, Unan and Quintino acknowledged that they could not point to any putative class memb er still affected by the glitch in the computer system. By all ac counts, the targeted error thus no longer exists. On what basis, then, can we reverse Judge Battani’s deci sion? None, at leas t that I can see. Even though Judge White shares many of my concerns about applying the inherently transitory exception here, she nonetheless believes that the case is not moot because “plaintiffs produced an email showing that even after the st ate implemented a permanent fix to its computer system, the system ‘flipped’ multiple applicants who were eligible for full Medicaid to ESO coverage.” Concurring Op. at 19 (q uoting R. 70-14 at 4). The cita tion refers to immigrants from two countries, Cuba and Haiti, th at apparently had difficulty withthe computer sy stem in June 2015. But there is no evidence that the Department failed to correct this error as well—and no evidence that any immigrants from these countrie s owed benefits are not getting them. No less importantly, this is not a clas s action on behalf of Cuban and Haitian immigrants, and indeed none of the named plaintiffs comes from Cuba or Ha iti. This is a class action on behalf of all immigrants from all countries. At most, this email (but for the other problems) might permit theNo. 16-1185 Unan et al. v. Lyon Page 24
continuation of a class action on behalf of immigrants from Cuba and Haiti. But that is not what the majority opinion says or what Judge White proposes. That human error may lead to future errone ous assignments or computer code mistakes does not justify a lawsuit that seeks a never-ending injunction. Otherwise, City of Los Angeles v. Lyons , 461 U.S. 95, 109–12 (1983), would have come out differently. Lyons rejected as unduly speculative (for Article III purposes) a requ est for a future injunction against a police department’s use of chokeholds by an individua l improperly subjected to a chokehold by officers from that department before. Today’s in junction—to obey the re levant statutes and constitutional provisions in the future —looks a lot like the one rejected in Lyons . In truth, it is even broader. The injunction instructs the Department “broadly to obey the statute” and the Constitution “and thus subject[s] the defendant to cont empt proceedings if he shall at any time in the future commit some new violation unlike and unrelated to” the original computer system

error. NLRB v. Express Publ’g Co. , 312 U.S. 426, 435–36 (1941). The setting of this injunction makes it particular ly hard to accept. It is inevitable that errors will occur in implementing any complex be nefits programs. Just look at the Social Security program. See, e.g. , Mathews v. Eldridge , 424 U.S. 319, 346 n.29 (ove rall error rate of 12.2% for Social Security disabi lity benefits program). Or consider the challenges of implementing the national hea lthcare law. Yet Unan and Quintino, as their counsel acknowledged at oral ar gument, don’t believe any error rate, whether 10% or 0.00001%, would demonstrate that the Department has resolved the “systemic errors” in Michigan’s Medicaid benefits program. If that’s the case, this lawsuit has no end. The “systemic error” is the fact that no one person, and thus no one co mputer system, is beyond repr oach. That’s not enough to maintain a case or controversy in any setting. And it’s assuredl y not enough to ma intain one in this setting—where the Department has given Unan and Quintino everything they asked for. The same goes for the notice claims. Federal courts may overcome a State’s sovereign immunity only with prospective injunctions, see Ex parte Young , 209 U.S. 123, 159 (1908), and Michigan has been issuing revised notices, conced edly constitutional, si nce May 2015. There is no plausible argument that Michigan will revert b ack to the old notices or reinsert the same computer error that it spent months fixing. See Friends of the Earth, Inc. v. Laidlaw Envtl.No. 16-1185 Unan et al. v. Lyon Page 25

Servs ., 528 U.S. 167, 190 (2000). At any rate, we must treat th e voluntary “cessation of the allegedly illegal conduct by government officials . . . with more soli citude . . . than similar action by private parties.” Mosley v. Hairston , 920 F.2d 409, 415 (6th Cir. 1990) (quotation omitted). The notice claims, like the Medicaid benefits claims , are moot. And even if the belatedly raised retroactive notice issue remained live and una ffected by Michigan’s sovereign immunity, the court agrees that the retroactive not ices do not violate due process. See Lead Op. at 15–16. If the “inherently transitory” exception to moot ness allows us to sidestep these realities, and if it applies to “systemic errors” without an y built-in expiration dates, I am concerned. The exception was designed to “focus[] on the fleeting nature of the challenged conduct giving rise to the claim, not on the defendant’s litigation strategy.” Genesis Healthcare Corp. v. Symczyk , 133 S. Ct. 1523, 1531 (2013). We seem to be at th e bottom of a long, steep, and icy slope and may want to consider how we got here. For these reasons, I would affirm the district court across the board. The court seeing it otherwise on the mootness decision, I respectful ly dissent from that part of its ruling.