1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 16a0127p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

M ELISSA W ILSON et al., Plaintiffs-Appellees ,

v

.

D ARIN G ORDON et al., Defendants-Appellants

. ┐ │ │ │ │ │ │ │ ┘ No. 14-6191

Appeal from the United St ates District Court for the Middle District of Tennessee at Nashville. No. 3:14-cv-01492—Todd J. Campbell, Chief District Judge. Argued: June 18, 2015
Decided and Filed: May 23, 2016
Before: MOORE, SUTTON, and WHITE, Circuit Judges.

_________________ COUNSEL

ARGUED: Michael W. Kirk, COOPER & KIRK, PL LC, Washington, D.C., for Appellants. Samuel Brooke, SOUTHERN POVERTY LAW CENTER, Montgomery, Alabama, for Appellees. ON BRIEF: Michael W. Kirk, COOPER & KI RK, PLLC, Washington, D.C., Linda A. Ross, Carolyn E. Reed, OFFICE OF TH E TENNESSEE ATTORNEY GE NERAL, Nashville, Tennessee, for Appellants. Samuel Brooke , Sara Zampierin, SOUTHERN POVERTY LAW CENTER, Montgomery, Alabama, Jane Perkin s, Elizabeth Edwards, NATIONAL HEALTH LAW PROGRAM, Carrboro, North Carolina, Go rdon Bonnyman, Jr., Christopher E. Coleman, TENNESSEE JUSTICE CENTER, Nashville, Tenness ee, for Appellees. Mark B. Stern, Alisa B. Klein, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus Curiae.
MOORE, J., delivered the opinion of the cour t in which WHITE, J., joined. SUTTON, J. (pp. 31–33), delivered a sepa rate dissenting opinion. 

### >No. 14-6191 Wilson, et al. v. Gordon, et al. Page 2

_________________ OPINION

_________________ KAREN NELSON MOORE, Circuit Judge. Eleven named plaintiffs, residents of Tennessee who applied for Medicaid (“Plaintiffs”), filed a class action complaint for declaratory and injunctive relief against Darin Gordon, the Director of the Bureau of TennCare, Larry Martin, the Commissioner of the Department of Finance and Admini stration, and Dr. Raquel Hatter, the Commissioner of Human Services (collectively “the State”), alleging that the delays Plaintiffs have experienced in receiving eligibilit y determinations on their Medicaid applications violate 42 U.S.C. § 1396a(a)(8) of the Medicaid statute, and that the State’s failure to provide a fair hearing on their delayed applications violat es § 1396a(a)(3) and the Due Process Clause of
the United States Constitution. The district court certified a class and gr anted Plaintiffs’ motion for a preliminary injunction, which requires th e State to grant a fair hearing on delayed applications to class members who request on e. The State now appe als the grant of the preliminary injunction, but has not appealed the class ce rtification order. For the reasons set forth below, we AFFIRM the district court’s grant of a preliminary injunction.

I. BACKGROUND
A. Factual Background
The Medicaid statute requires th at states electing to participate in Medicaid “provide that all individuals wishing to make application fo r medical assistance under the plan shall have opportunity to do so, and that suchassistance shall be furnishe d with reasonable promptness to all eligible individuals.” 42 U.S.C. § 1396a(a)(8). Regulations implementing the statute provide that “the determination of eligibility for any applicant may not exceed” 90 days for those “who apply for Medicaid on the basis of disability” and 45 da ys for all other appl icants. 42 C.F.R. § 435.912(c)(3). The Medicaid stat ute additionally requires thatstates must “provide for granting an opportunity for a fair hearing before the State agency to any individual whose claim
for medical assistance under the plan is denied or is not acted upon with reasonable promptness.”
42 U.S.C. § 1396a(a)(3); 42 C.F.R. § 431.220(a)(1) (“ The State agency must grant anNo. 14-6191 Wilson, et al. v. Gordon, et al. Page 3

opportunity for a hearing to . . . [a]ny applicant who requests it be cause his claim for services is denied or is not acted upon with reasonable prom ptness.”). Where a hearing concerns a delayed application, “[t]he hearing must cover . . . [a ]gency action or failure to act with reasonable promptness on a claim for services, including both initial and subsequent decisions regarding eligibility.” 42 C.F.R. § 431.241(a). Moreover, a state is required to de signate a “single State agency to administer or to supervise the admini stration of the plan.” 42 U.S.C. § 1396a(a)(5). Tennessee’s Medicaid program is known as TennCare and is admi nistered by the Bureau of TennCare, which is within the Department of Finance and Administration. R. 52 (Gordon Decl. ¶ 1) (Page ID #660).
The Affordable Care Act (“ACA”) introduced several changes to federal law that affected Medicaid. First, the ACA require d the creation of Exchanges, st ate-specific health insurance marketplaces where individuals can compare and purchase private insurance plans. 42 U.S.C. § 18031. States were required either to create their own Exchange by January 1, 2014, or to
allow the federal Centers for Medicare and Medi caid Services (“CMS”) to operate an Exchange
in the state. Id. §§ 18031(b)(1); 18041(b) & (c); 18083(a). Second, st ates must now use a standard methodology to calculate income eligibility for most categories of Medicaid, called “modified adjusted gross income” (“MAGI”). 1 Id. § 1396a(e)(14).
Third, states must use a single, streamlined application for state health insurance and subsidy programs, including Medicaid and Child ren’s Health Insurance Program (“CHIP”). Id. § 18083(b)(1)(A); § 1396w-3(b)(3). Fourth, states are required to devel op an electronic system for data exchange that enables information on the application to be checked against data available electronically from federal agencies like the Internal Revenue Service (“IRS”) and the Social Security Administration (“SSA”). Id. § 18083(c). CMS has established the Federal Data Services Hub as “a single repositoryfor all federal data that may be useful in verifying Medicaid eligibility.” R. 55 (Purcell Decl. ¶ 4) (Page ID #708).

1 Two categories of Medicaid relevant to this litigation that do not use the MAGI methodology are Tennessee’s CHOICES program for long-term care services for individuals 65 and over and disabled individuals 21 and older, and its Medicare Savings Program (“MSP”), which helps individuals pay for Medicare. R. 55 (Purcell Decl. at 2–3) (Page ID #705–06); 42 U.S.C. § 1396a(e)(14)(D)(i).No. 14-6191 Wilson, et al. v. Gordon, et al. Page 4

Fifth, the ACA created a “no wrong door” polic y, meaning that individuals can apply for health coverage with the streamlined applica tion through the state Medi caid agency, the state CHIP agency, or the Exchange. 42 U.S.C. § 18083( b)(1)(A)(iii). Thus, stat es must actually have a system in place for accepting streamlined applications directly. See also 42 C.F.R. § 435.907(a) (stating that “the agency must accept an application” for Medicaid) (emphasis added). States must provide applicants the op tion to apply online, by telephone, by mail, or in person. 42 U.S.C. § 18083(b)(1)(A)(ii); 42 C.F.R. § 435.907(a). Applicants to the Exchange found eligible for Medicaid or CHIP must be en rolled in the applicable program, and applicants to a state agency who are found ineligible for Medi caid or CHIP must be screened for eligibility for Exchange plans, and enrolled if found e ligible. 42 U.S.C. §§ 1396w-3(a) & (b)(1)(C), 18083(a). Finally, when receiving Medicaid determ inations from the federal Exchange, states may elect to be either a “determination” stat e, meaning that the state will accept CMS’s final eligibility determination, or an “assessment” state, meaning that CMS’s determination is preliminary and the state can accept or change it. 42 C.F.R. §§ 431.10(c)(1)(i), 435.1200(c) & (d); 45 C.F.R. § 155.302(b).
The ACA required states to accept and process all Medicaid applications using the MAGI methodology by October 1, 2013, regardless of whethe r the state operates its own Exchange. 42 U.S.C. § 18083(b) & (c); 42 C.F.R. § 435.907(a) ; R. 4-1 (Ltr. from Mann to Gordon at 2) (Page ID #297). Tennessee informed CMS in 2013 that it could not update its pre-ACA computer system for processing Medicaid appli cations to perform MAGI calculations by this deadline. R. 4-1 (Tennessee Mitigation Plan at 1) (Page ID #274). Thus, the State proposed temporarily to redirect all MAG I-based applicants to the federal Exchange rather than accepting the applications itself through December 2013. Id. Tennessee also opted to be a determination

state. Id. CMS approved this mitigation plan on A ugust 16, 2013 as a “short-term measure, not a long-term solution.” R. 4-1 (Ltr. from Kahn to Go rdon at 1) (Page ID #263); R. 4-1 (Ltr. from Mann to Gordon at 3) (Page ID #298). Howeve r, Tennessee did not meet the January 1, 2014 deadline, and at the time this appeal was filed the State had not yet successfully created a new computer system to process MAGI-based a pplications, called the TennCare Eligibility Determination System (“TEDS”). R. 4-1 (C ontract at 4) (Page ID #261); TennCare, Tennessee to Go in New Direction for Medica id Eligibility Determination System (Jan. 12, 2015),No. 14-6191 Wilson, et al. v. Gordon, et al. Page 5

http://news.tn.gov/node/13420. Thus, Tennessee continue s to refer all MAGI-b ased applicants to the Exchange. R. 4-1 (Tennessee Mitigation Plan at 1) (Page ID #274). Tennessee continues to process directly applications for non-MAGI categories of Medica id. R. 55 (Purcell Decl. ¶ 10) (Page ID #711–12).
B. Procedural History
The eleven named plaintiffs are residents of Tennessee who applied for Medicaid in
Tennessee and did not receive a final determination of their eligibility within the requisite time periods, and who were not provided hearings on their delayed appli cations when requested. R. 1 (Compl. at 22–32) (Page ID #22–32). Plaintiffs’ applications were pending anywhere from 146 to 194 days as of the day the case was filed. R. 1-1 to 1-8 (Decls.) (Page ID #41–71). On July 23, 2014, Plaintiffs filed a class action complaint for declaratory and in junctive relief against Darin Gordon, the Director of th e Bureau of TennCare, Larry Ma rtin, the Commissioner of the Department of Finance and Administration, and Dr. Raquel Hatter, the Commissioner of Human Services (collectively referred to as “the Stat e”). R. 1 (Compl. at 1, 37–38) (Page ID #1, 37–38). Plaintiffs allege that the delays they experienced in receiving e ligibility determinations on their Medicaid applications violate 42 U.S.C. § 1396a(a)(8), and the Stat e’s failure to provide a fair hearing on their delayed applica tions violates § 1396a(a)(3) and the Due Process Clause of the
United States Constitution. Id. at 35–37 (Page ID #35–37). The same day, Plaintiffs filed a
motion for class certification and a motion for a preliminary injunction. R. 2 (Mot. for Class Cert.) (Page ID #76); R. 4 (Mot. for Prelim. Inj.) (Page ID #172–73).
The district court held a hearing on the motions on August 29, 2014. R. 93 (Mot. Hr’g Tr.) (Page ID #1345–1456). However, as of the day before the hearing, the State had enrolled all eleven named plaintiffs, as well as many of the 100 other class members identified by Plaintiffs,
in TennCare. Id. at 80–82 (Page ID #1424–26). On Septem ber 2, 2014, the district court granted both of Plaintiffs’ motions. R. 90 (Order re: Class Cert.) (Page ID #1271–79); R. 91 (Order re: Prelim. Inj.) (Page ID #1280–88). The distri ct court certified the following class:
All individuals who have applied for Medi caid (TennCare) on or after October 1, 2013, who have not received a final eligibility de termination in 45 days (or in the case of disability applicants, 90 days ), and who have not been given theNo. 14-6191 Wilson, et al. v. Gordon, et al. Page 6

opportunity for a “fair hearing” by the St ate Defendants after these time periods have run.
R. 90 (Order re: Class Cert. at 8) (Page ID #1278). The State has not appealed this order. The district court granted the fo llowing preliminary injunction:
The Defendants are enjoined from continui ng to refuse to provide “fair hearings” on delayed adjudications, as required by 42 U.S.C. §§ 1396a(a)(3), (8) and 42 C.F.R. § 435.912(c)(3). More specifi cally, based on these provisions, and the Fourteenth Amendment Due Process Cl ause, the Defendants are ordered to provide the Plaintiff Class with an opportunity for a fair hearing on any delayed adjudication. Any fair hearing shall be held within 45 da ys after the Class Member requests a hearing and provides the Defendants with proof that an application for medical assistance was filed (or the hearing shall be held within 90 days after that date, if the application was based on disability). “Delayed adjudication,” for purposes of this injunction, means an adjudication that has not occurred within 90 days after the filing of an applic ation for Medicaid on the basis of disability, and within 45 da ys after the filing of all other Medicaid applications. R. 91 (Order re: Prelim. Inj. at 8–9) (Page ID #1287–88) (footnote omitted). The State filed a timely notice of appeal of this order. R. 97 (Notice of Appeal) (Page ID #1481).

II. JURISDICTION: This Case Is Not Moot.

A core tenet of Article III is that “federal courts may adjudicate only actual, ongoing
cases or controversies.” Kentucky v. U.S. ex rel. Hagel , 759 F.3d 588, 595 (6th Cir. 2014) (internal quotation marks omitted). The Supreme Court has explained that a case may become moot “when the issues presente d are no longer live or the part ies lack a legally cognizable interest in the outcome,” sometimes referred to as “the personal stake requirement.” U.S. Parole Comm’n v. Geraghty , 445 U.S. 388, 396, 410 (1980) (internal quotation marks omitted). When class actions are involved, however , the Supreme Court has explaine d that “the Art. III mootness
doctrine” is “flexible.” Id. at 400. And unlike plaintiffs pr oceeding individually, “[a] class representative has two legally cogni zable interests: ‘One is the claim on the merits ; the other is
the claim that he is entitle d to represent a class.’” Richards v. Delta Air Lines, Inc. , 453 F.3d 525, 528 (D.C. Cir. 2006) (quoting Geraghty , 445 U.S. at 402).No. 14-6191 Wilson, et al. v. Gordon, et al. Page 7

The parties do not dispute that all eleven na med plaintiffs’ individual claims became
moot before the district court certified th e class. The general rule is that “[ o ] nce a class is certified, the mooting of the named pl aintiff’s claim does not moot the action, 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) (emphasis in original). This is because once a class is certified, “the class of unnamed persons described in the certification acquire[s] a legal status separate from the interest asserted by” the named plaintiff. Sosna v. Iowa , 419 U.S. 393, 399 (1975). “Where, on the other hand, the named plaintiff’s claim becomes moot before certification,” the ordinary rule is that “dismissal of the action is required.” Brunet , 1 F.3d at 399 (emphasis in original). However, there are exceptions to the general rule.
In its class certification order (again, not appealed by the State), the district court addressed this issue as part of its considerat ion of whether Plaintiffs would be adequate representatives of the class. R. 90 (Order re: Class Cert. at 5) (Page ID #1275). The district
court held that three ex ceptions to the mootness doctrine applied—the “capable of repetition, yet evading review” exception, the “inherently transitory” excep tion, and the “picking off” exception. Id. at 6–7 (Page ID #1276–77).
The State argues that the district court erre d in applying these exceptions to mootness,
and adds an additional reason for fi nding this case moot: that Plaintiffs voluntarily released their claims. We evaluate these arguments below, and ultimately conclude that this case is not moot.

A. The Parties’ Joint Motion Did Not Render This Action Moot.
The State argues that by agreeing to withdr aw their motion for expedited briefing on the class certification and preliminar y injunction motions in exchange for the State’s promise “to specially process the TennCare applications of the named pl aintiffs and up to 100 total applications identified by Plaintiffs’ couns el as having been de layed,” Appellant Br. at 19–20, Plaintiffs “voluntarily re linquished” their claims, Pettrey v. Enter. Title Agency, Inc. , 584 F.3d 701, 705 (6th Cir. 2009), thereby mooting the case. We do not think that Plaintiffs voluntarilyNo. 14-6191 Wilson, et al. v. Gordon, et al. Page 8

relinquished their claims by agreei ng to this process, even though Plaintiffs’ received relief as a

consequence.
On July 28, 2014, the parties submitted a “Joi nt Motion to Enter a Scheduling Order on Plaintiffs’ Motions for a Preliminary Injunction and for Class Certification.” R. 24 (Jt. Mot.) (Page ID #370–72). Plaintiffs had previously fi led a motion for an expedited hearing on these motions on July 23, 2014. R. 6 (Mot. to Expedite Hr’g) (Page ID #330–37). The Joint Motion states that “[b]ased on the State’s agreement to take certain actions to alleviate the immediate concerns of the Plaintiffs, Plain tiffs respectfully withdraw their motion for an expedited hearing . . . and along with the State, respectfully reque st that the Court grant the State until August 14, 2014 to file its responses to the motion for cla ss certification and a preliminary injunction.” R. 24 (Jt. Mot. ¶ 2) (Page ID #370–71). The Joint Motion concludes, however, that “[t]he Plaintiffs continue to request an oral argument on the motions for preliminary injunction and class certification as promptlyas possible after the 14th.” Id. ¶ 4 (Page ID #371).
Declarations submitted by both parties further flesh out what actions the State agreed to take. Kim Hagan, the Eligibility Policy Admini strator for the TennCare Division of Member Services, explained that “the St ate . . . agree[d] to provide i ndividualized help for the named Plaintiffs and up to 100 total applications that Plaintiffs’ counsel woul d bring to the State’s
attention to see if the State coul d resolve their applications.” R. 53 (Hagan Decl. ¶¶ 1, 12) (Page ID #667, 672). Specifically, the State agreed to take two actions. “[F]or those named Plaintiffs
who were newborn children of non-TennCare mother s, the State agreed to immediately provide Plaintiffs’ counsel with an appl ication for a new presumptive el igibility program for newborns the State is working with CMS to get approved a nd that the State has decided to implement in anticipation of that approval. Upon return of that a pplication, the State agreed to enroll any newborn found eligible.” Id. ¶ 12 (Page ID #672). “The State also agreed to ask CMS to provide [it] with the individual case files of the other named Plaintiffs so that [it could] review those files and attempt to reso lve any discrepancies . . . that might be holding up a final adjudication of eligibility by the federal exch ange and to provide a final decision on those Plaintiffs’ eligibility.” Id. The Joint Motion did not addres s attorney fees and costs.No. 14-6191 Wilson, et al. v. Gordon, et al. Page 9

The plain terms of the Joint Motion did not settle the case. Contrary to the dissent’s assertion, the State did not guarantee eligibility determinations or ev en fair hearings for all of the named plaintiffs and the 100 other class members identified. See R. 1 (Compl. ¶¶ 151

‒ 63) (Page
ID #35

‒ 37). For the named plaintiffs who are not infants, the State agreed only to “review [their] files and attempt to resolve any discrepancies” that might be the cause of the delay on their applications. R. 53 (Hag an Decl. ¶ 12) (Page ID #672) (emphasis added). The Joint
Motion therefore does not reveal a meeti ng of the minds to resolve the case.
We recognize that the Jo int Motion did eventually result in the State providing the requested relief, and the Plaintiffs’ individu al claims became moot. Thus, Plaintiffs’ involvement was not entirely involuntary: Plain tiffs knew that by giving the State more time to file its briefing, and by agreeing to the special revi ew process, they might receive their requested relief. However, even if we were to find that Plaintiffs voluntarily settled their claims, which we explicitly do not, it would not end our analysis as two separate exceptions to mootness apply
here. 2

B. Two Exceptions to Mootness Apply.
Although Plaintiffs did not volun tarily relinquish their clai ms, they did receive relief before certification, and the act ion would, under the ordinary ru le, become moot absent an exception. Brunet , 1 F.3d at 399. We hold th at the district court corr ectly concluded that the

2 The Supreme Court has never addressed whether a na med plaintiff who voluntarily settles her claim can continue to represent a class. And we do not read the Cour t’s cases that have considered the effect of a potentially moot individual claim on a nascent class action as implying that a voluntary settlement would render a case moot. Deposit Guaranty National Bank v. Roper , 445 U.S. 326 (1980), and Geraghty , 445 U.S. at 388, both involved unilateral action. In Roper it was objected-to settlement offers from the defendant, 445 U.S. at 329; in Geraghty it was the named plaintiff’s mandatory release from prison, 445 U.S. at 394. Both cases held that the named plaintiffs retained a personal stake in the litigation sufficient to app eal a denial of class certification, and neither decision turned on the fact that the act ion at issue was unilateral. Roper , 445 U.S. at 340; Geraghty , 445 U.S. at 404. And although our circuit confronted a similar set of facts in an earlier case, we expressly declined to determine whether the difference between voluntary and invol untary settlements is relevant when the plaintiff retains a personal stake in the litigation. See Pettrey , 584 F.3d at 702

‒ 03, 706 n.3. We see no need to de termine it now. This is an area of considerable complexity that has divided our sister circuits. Compare Ruppert v. Principal Life Ins. Co. , 705 F.3d 839, 844 (8th Cir. 2013), and Rhodes v. E.I. Du Pont De Nemours & Co. , 636 F.3d 88, 100 (4th Cir. 2011), with Espenscheid v. DirectSat USA, LLC , 688 F.3d 872, 874–76 (7th Cir. 2012); Narouz v. Charter Commc’ns, LLC , 591 F.3d 1261, 1264–65 (9th Cir. 2010); Pastor v. State Farm Mut. Auto. Ins. Co ., 487 F.3d 1042, 1043–44 (7th Cir. 2007); Richards , 453 F.3d at 528–29; and Love v. Turlington , 733 F.2d 1562, 1565 (11th Cir. 1984).No. 14-6191 Wilson, et al. v. Gordon, et al. Page 10

“inherently transitory” exception and the “picking off” exception apply. However, the district court erred in holding that the “capable of repe tition yet evading review” exception applies.
1. “Inherently transitory” exception

In Sosna , the Supreme Court first hinted at what would become the “inherently transitory” exception to normal mootness rules whenthe named plaintiff’s claims become moot prior to class certification:
There may be cases in which the contr oversy involving the named plaintiffs is such that it becomes moot as to them be fore the district co urt can reasonably be expected to rule on a certification mo tion. In such instances, whether the certification can be said to ‘relate back’ to the filing of the complaint may depend upon the circumstances of the particular case and especially the reality of the claim that otherwise the issue would evade review.
419 U.S. at 402 n.11; see also Geraghty , 445 U.S. at 399 (describing this as the “inherently transitory” exception).
The Supreme Court applie d this exception in Gerstein v. Pugh , 420 U.S. 103 (1975). The named plaintiffs in that case f iled a class action composed of pr etrial detainees alleging that Florida violated their constitutional rights by not providing a prompt judici al hearing on probable

cause. Id. at 105–07. “[T]he record d[id] not indicate wh ether any of [the named plaintiffs] were still in custody awaiting trial when th e District Court certified the class.” Id. at 111 n.11. The Supreme Court nevertheless held that the case was not moot. Id. The Court explained that “[t]he length of pretrial custody cannot be ascertained at the outset, and it may be ended at any time by release on recognizance, dismissal of the charges, or a guilty plea, as well as by acquittal or
conviction after trial.” Id. Thus, the Court continued, “[i]t is by no means certai n that any given individual, named as plaintiff, would be in pretrial custody l ong enough for a district judge to certify the class.” Id. Unlike the “capable of repetition but evading review” exception, the Court did not require that the named plaintiffs show that they pe rsonally will be subject to the same practice again. Geraghty , 445 U.S. at 399 (“There was no indi cation that the particular named plaintiffs [in Gerstein ] might again be subject to pretrial detention.”). Rather, the Court required only that other class members would suffer the same injury: “in this case the constant existence of a class of persons suffering the deprivation is certain.” Gerstein , 420 U.S. at 111 n.11. TheNo. 14-6191 Wilson, et al. v. Gordon, et al. Page 11

Supreme Court has applied the “inherently tran sitory” exception in several other cases. See, e.g. , Cty. of Riverside v. McLaughlin , 500 U.S. 44, 51–52 (1991); Swisher v. Brady , 438 U.S. 204, 213 n.11 (1978).

Courts have distilled from Gerstein two requirements for the “inherently transitory” exception to apply: (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 certain
other class members are suffering the injury. See, e.g. , Olson v. Brown , 594 F.3d 577, 582 (7th Cir. 2010). The State does not dispute that the second requirement is met.
The key point of disagreement between the part ies is the meaning of “transitory.” The State argues that Plaintiffs’ claims are not “i nherently transitory” because this exception is limited to cases in which the nature of the plaintiff’s claims is so fleeting that “‘ no plaintiff possesse[s] a personal stake in the suit long enough for litigation to run its course,’ and the challenged conduct would therefore be ‘effectively unreviewable’ if former class members were not allowed to proceed.” Appellant Br. at 29 (quoting Genesis Healthcare Corp. v. Symczyk , 133 S. Ct. 1523, 1531 (2013)). Essentially, the State argues that the claim mu st naturally expire
in a short amount of time. Here , however, the State emphasizes thatPlaintiffs have experienced delays in receiving hearings that are measured inmonths, not days, and thus in theory there could be individuals whose claims remain live long en ough for a court to rule on a class certification
motion. Id. at 30–31. Plaintiffs respond that claims can also be “inherent ly transitory” when it is uncertain how long the claim will remain live afte r litigation commences, not only whether the claim lasts days as opposed to months. Appellee Br. at 52. Here, the State can quickly process a delayed application soon after litigation begins, and thus the duration of any plaintiff’s claim is
uncertain. Id. at 53.
We think Plaintiffs have the better argument that the uncertainty about how long an injury caused by ongoing conduct will persist can also render a claim inherently transitory. To be sure, in some of the Supreme Court cases applying this excepti on, the duration of the challenged conduct was quite short. McLaughlin , 500 U.S. at 47–48 (pretrial detention of only days); Swisher , 438 U.S. at 213 n.11 (noting “the rapidity of judicial review of exceptions to masters’ proposals” in juvenile cases, the practice the class sought to challenge). However, thereNo. 14-6191 Wilson, et al. v. Gordon, et al. Page 12

is also support for Plaintiffs’ argument. Gerstein focused on the fact that “[t]he length of pretrial custody cannot be ascertained at the outset.” 420 U.S. at 111 n.11. The Supreme Court did not point to the fact that class members were in pr etrial custody only for a certain, short length of time; in fact, nowhere in the opinion does the Court discuss ho w long on average class members were in pretrial dete ntion without a probable cause determination. Id. at 106 (noting only that “a person charged by information could be detained for a substantial period solely on the decision of a prosecutor”).

The sole case in our circuit to address this issue has taken Plaintiffs’ approach. In Gawry v. Countrywide Home Loans, Inc. , we explained that “the crux of the ‘inherently transitory’ exception is the uncertainty about the length of time a claim will remain alive.” 395 F. App’x 152, 158–59 (6th Cir. 2010) (quoting Olson , 594 F.3d at 582). We then concluded that the exception did not apply in that case because th e named plaintiff “knew (or should have known)
that her claim would become moot when her prepayment rider expired after three years. And yet, plaintiffs did not move for class certification until nearly five years after Carr executed the allegedly illegal note.” Id . at 159 (internal citation omitted).

In Olson , the Seventh Circuit ca se we relied upon in Gawry , the court held that a class action brought by inmates alleging constitutional violations at a county jail was not moot even though the named plaintiffs were transferred out of the jail be fore the class was certified. 594 F.3d at 582. The court explai ned that “[w]hile the ultimate length of confinement does affect the applicabil ity of the ‘inherently transitory’ exception, the essence of the exception is uncertainty about whether a claim will remain alive for any given plaintiff long enough for a district court to certify the class. ” Id. (emphasis added). The Seve nth Circuit then emphasized that the named plaintiff “did not know when his claim would become moot” because “[t]he
duration of his claim was at the discretion of the Indiana Department of Correction. An
individual incarcerated in a county jail may be released for a num ber of reasons that he cannot anticipate.” Id. at 583.

Other courts have also focused on uncertain ty about how long a claim will remain live, and the defendant’s ability to quickly render a clai m moot, in holding that this exception applies.
In Robidoux v. Celani , for example, the Second Circuit held that a class action challengingNo. 14-6191 Wilson, et al. v. Gordon, et al. Page 13

delays in processing various pub lic assistance applications was not moot even though the named plaintiffs received their benefits before the class could be certified on remand. 987 F.2d 931, 939 (2d Cir. 1993). The court explained that “[a]ppe llants’ claims are inherently transitory since the Department will almost always be able to process a delayed application before a plaintiff can obtain relief through litigation.” Id. The court did not consider av erage delays in processing those applications. Id. See also Thorpe v. Distri ct of Columbia , 916 F. Supp. 2d 65, 67 (D.D.C. 2013) (holding that the “inherent ly transitory” exception applie d to claims of nursing home inhabitants as “[t]he length of any individual’s stay in a nursing fa cility is impossible to predict, so even though there are certainly individuals whose cl aims will not expire within the time it would take to litigate their cl aims, there is no way for plaint iffs to ensure that the Named Plaintiffs will be those individuals”).
It is true, as the State argues, that the Supreme Court’s recent decision in Genesis
Healthcare described this doctrine as “focused on th e fleeting nature of the challenged conduct giving rise to the claim, not on the defendant’s litigation strate gy” and emphasized that it has been applied when “no plaintiff possessed a pe rsonal stake in the suit long enough for litigation to run its course.” 133 S. Ct. at 1531. However, this discussion does not foreclose application of the inherently transitory exception to clai ms for injunctive relief from ongoing conduct of inherently uncertain duration. Th e Court concluded that the inherently transitory line of cases did not apply in Genesis Healthcare mainly because the suit sought damages rather than injunctive relief; the Court did not rest its conclusion on the distinction between claims of inherently uncertain duration and claims of inherently limited duration. Id. In any event, as
Genesis Healthcare is a FLSA case, and, as discussed more fully below, the Court distinguished the law applicable to FLSA collective actions from Rule 23 classes, Genesis Healthcare does not
control this case.
Moreover, the Court’s reference to “litiga tion strategy” must be understood in the particular factual context of Genesis Healthcare , specifically that the plaintiffs argued that their claims were inherently transitory because at any point the defendant could moot them by making a Rule 68 offer of judgment that fully satisfied the named plaint iffs’ claims (a similar argument to that in the “picking off” cases fr om other circuits discussed below). Id. This is a much moreNo. 14-6191 Wilson, et al. v. Gordon, et al. Page 14

expansive argument than that in the present case b ecause the uncertainty of the injury here is tied to the type of claim—a failure to provide ti mely hearings, which could be remedied quite quickly—as opposed to any type of damages claim that coul d be mooted by a Rule 68 offer of judgment. The fact that the statute sets relativ ely short time periods within which applications must be resolved—45 days and 90 days—reinforces th at claims of delay or the failure to provide hearings can be resolved quickl y. Moreover, other types of clai ms for injunctive relief are not necessarily quite as easil y resolved so speedily.
In sum, the “inherently transitory” exception to mootness applies to this case. Plaintiffs did not know how long their claims for injunctive relief from delay would remain live. The
duration of Plaintiffs’ claims wa s tenuous. The State c ould quickly either ho ld a hearing on their delayed applications for Medicaid or enroll them in TennCare at any point after the 45- or 90-day deadline expired, as actually occurred in this ca se, before the district court could reasonably be expected to rule on the class certification motion.
2. “Picking off” exception
The potential exception to mootness where a defendant picks off named plaintiffs in a
class action before the class is certified originates from the Supreme Court’s decision in Deposit Guaranty National Bank v. Roper . The Court explained that:
To deny the right to appeal simply becau se the defendant has sought to “buy off” the individual private claims of the name d plaintiffs would be contrary to sound judicial administration. Requiring multiple plaintiffs to bring separate actions, which effectively could be “picked off” by a defendant’s tender of judgment before an affirmative ruling on class cer tification could be obtained, obviously would frustrate the objectives of class actions; moreover it woul d invite waste of judicial resources by stimulating su ccessive suits brought by others claiming aggrievement.
445 U.S. 326, 339 (1980). Although it is true that the district court in Roper already had denied
the motion for class certification when the defendant sought to pick off the named plaintiff, we see no distinction between picking off a named plai ntiff when a motion for class certification has been filed and is then pending and picking o ff a named plaintiff after the motion for class
certification has been denied. In both scenario s, the defendant is on notice that the namedNo. 14-6191 Wilson, et al. v. Gordon, et al. Page 15

plaintiff wishes to proceed as a class, and the concern that the defendant therefore might strategically seek to avoid that possibility exists.

Even before Roper , we recognized an exception to moot ness to address a similar concern of defendants strategically mooting named plaintiffs’ claims in an attempt to avoid a class action.
In Blankenship v. Secretary of HEW , we held that a class action to challenge delays by the Social Security Administration in scheduling administra tive hearings was not m oot even though “[a]ll of the named plaintiffs received disability he arings before the District Court granted class certification.” 587 F.2d 329, 331–33 (6th Ci r. 1978). We explained that:
[t]he claims of delay which the plaintiffs advance, however, epitomize the type of claim which continually evades review if it is declared moot merely because the defendants have voluntarily ceased the i llegal practice complained of in the particular instance. Thus, the defendants may expedite processing for any plaintiffs named in a suit while continuing to allow long delays with respect to all other applicants. . . . [R]efusal to cons ider a class-wide remedy merely because individual class members no longer need relief would mean that no remedy could ever be provided for continuing abuses.

Id. at 333. Thus, we concluded that “the class me mbers retain a live interest in this case” and
that “the class certification shoul d ‘relate back’ to the date of the filing of the complaint.” Id.

Since Roper , we have recognized this line of re asoning under analogous circumstances.
In Carroll v. United Compucred Collections, Inc. , we held that a class action was not moot even though the named plaintiffs had been tendered a Rule 68 offer of judgment because a motion for class certification was then pending. 3 399 F.3d 620, 625 (6th Cir. 2005). The Carroll court cited
our decision in Brunet as support, and articulated a conc ern about defendants strategically picking off named plaintiffs to avoid class actions. Carroll , 399 F.3d at 625 (“‘If a tender made to the individual plaintiff while the motion for ce rtification is pending c ould prevent the courts from ever reaching the class acti on issues, that opportunity is at the mercy of a defendant, even
in cases where a class action would be most clearly appropriate.’” (quoting Brunet , 1 F.3d at

3 Although the magistrate judge had issued a Report and Recommendation recommending that a class be certified when the defendant had made the Rule 68 offer, we did not limit our holding to that factual scenario. Carroll , 399 F.3d at 625. We in fact stated the ru le more broadly, explaining that we read Brunet as suggesting that “it would be inappropriate to hold that a case was mooted by a settlement offer made to a named plaintiff when a motion for class certification was pending,” full-stop. Id.No. 14-6191 Wilson, et al. v. Gordon, et al. Page 16

400)). In Brunet , we recognized that some courts ha d applied a “picking off” exception. Brunet , 1 F.3d at 400 (“ Some courts have held th at a case does not become moot where a defendant ‘picks off’ the claims of named plaintiffs with settlement offers in an attempt to avoid a class
action . . . where ‘a motion for class certificati on has been pursued with reasonable diligence and is then pending before the district court.’” (quoting Susman v. Lincoln Am. Corp. , 587 F.2d 866, 870 (7th Cir. 1978))).
Other circuits have applied or recognized the “picking off” exception along the lines
articulated in Roper

. See, e.g. , Lucero v. Bureau of Collection Recovery, Inc. , 639 F.3d 1239, 1250 (10th Cir. 2011) (“[W]e hold th at a named plaintiff in a propos ed class action for monetary relief may proceed to seek timel y class certification where an unaccepted offer of judgment is
tendered in satisfaction of the plaintiff’s individual claim befo re the court can reasonably be expected to rule on the class certification motion.” ). Some of these decisions blend the “picking off” exception with the “inherently transitory” exception, calling the claims transitory by virtue
of the fact that the defendant co uld pick off the named plaintiffs with Rule 68 offers of judgment
before a motion for class certification could be ruled on. See, e.g. , Pitts v. Terrible Herbst, Inc. , 653 F.3d 1081, 1091 (9th Cir. 2011) (“[W]e see no reas on to restrict application of the relationback doctrine only to cases involving inherently transitory claims. Where, as here, a defendant seeks to ‘buy off’ the small individual claims of the named plaintiffs, th e analogous claims of the class—though not inherently transitory—become no less transitory than inherently transitory claims.”); Weiss v. Regal Collections , 385 F.3d 337, 347 (3d Cir. 2004) (“Although Weiss’s claims here are not ‘inherently transitory’ as a result of being time sensitive, they are acutely susceptible to mootness, in light of defendants’ tactic of ‘picking o ff’ lead plaintiffs with a Rule 68 offer to avoid a class action.” (inter nal quotation marks and citation omitted)), abrogated by Campbell-Ewald , 136 S. Ct. at 669, 672; Zeidman v. J. Ray McDermott & Co. , 651 F.2d 1030, 1050 (5th Cir. Unit A 1981) (“[W]hile we recogni ze that the named plainti ffs in this case have not presented claims which by their nature are so transitory that no single named plaintiff with
such a claim could maintain a justiciable case long enough to procure a decision on class certification, we believe that the result should be no different when the defendants have the ability by tender to each named plaintiff effectiv ely to prevent any plaintiff in the class from procuring a decision on class certif ication. By tendering to the named plaintiffs the full amountNo. 14-6191 Wilson, et al. v. Gordon, et al. Page 17

of their personal claims each time suit is brought as a class action, the defendants can in each successive case moot the named plaintiffs’ claims before a decision on certification is reached. A series of individual suits, each brought by a new named plaintiff, could individually be ‘picked off’ before class certification.”); see also Stein v. Buccaneers Ltd. P’ship , 772 F.3d 698, 704–05 (11th Cir. 2014) (affirming that Zeidman , “a Fifth Circuit decision issued before October 1, 1981,” is also binding law in the Eleventh Circuit).
Although the Supreme C ourt’s decision in Genesis Healthcare may be read as casting doubt on the continued vitality of this excep tion, it does not overrule this part of Roper , as the State claims, or the circuit cases ap plying this reasoning. The Court in Genesis Healthcare
characterized Roper ’s discussion of “picking off” named pl aintiffs as “dicta,” and emphasized
that “ Roper ’s holding turned on a speci fic factual finding that the plaintiffs’ possessed a continuing personal economic stake in the litig ation, even after the defendants’ offer of judgment.” 133 S. Ct. at 1532. However, Genesis Healthcare involved FLSA collective actions,
not Rule 23 class actions. The Supreme Court took pains to empha size that Rule 23 actions are “fundamentally different from coll ective actions under the FLSA.” Id. at 1529. The Court explained that, unlike FLSA collective actions, “a putative class acquires an independent legal status once it is certified under Rule 23,” wh ereas “[u]nder the FLSA, by contrast, ‘conditional certification’ does not produce a cla ss with an independent legal status, or join additional parties
to the action.” Id. at 1530. Even if Genesis Healthcare were to apply to Ru le 23 class actions, it is factually distinguishable because the class re presentative “had not yet moved for ‘conditional
certification’ when her claim became moot.” Id

. The Supreme Court recently had the opportunity to address the “picking off” exception in Campbell-Ewald v. Gomez , which considered whether an un accepted offer to satisfy a named plaintiff’s individual cla im mooted the case. 136 S. Ct. at 6 66. The named plaintiff argued that

“ Roper ’s specific disapproval of . . . efforts to evade class certification by offering ‘complete relief’ to the representative plai ntiff” foreclosed a finding of m ootness. Brief for Respondent at 38, Campbell-Ewald Co. v. Gomez , 136 S. Ct. 663 (2016) (No. 14-857). The Supreme Court agreed that the case was not moot , but grounded its holding in “basic principles of contract law” instead. 136 S. Ct. at 670. Though Campbell-Ewald sheds little light on the “picking off”No. 14-6191 Wilson, et al. v. Gordon, et al. Page 18

exception, the Court did observe that allowing anunaccepted offer to moot a case would place defendants like Campbell-Ewald “in the driver’s s eat,” enabling them to avoid significant classbased liability. Id. at 672. As the Court explained, “C ampbell sought to avoid a potential adverse decision, one that could expose it to dama ges a thousand-fold larger than the bid Gomez declined to accept.” Id.
The State next argues that ther e is insufficient evidence thatit was actually attempting strategically to moot Plaintiffs’ claims, and it cite s three out-of-circuit cases declining to find that the “picking off” exception app lies without evid ence of such a motive. Appellant Br. at 26–28; Cruz v. Farquharson , 252 F.3d 530, 535 (1st Cir. 2001) (declining to apply this exception where the INS ruled on delayed petitions for visas and pe rmanent residence, thus mooting the plaintiffs’ claims related to that delay, because “[o]ne swallow does not a summer make, and we have no acceptable basis to conclude, wit hout a more substantial factual predicate, that the INS has devised a scurrilous pattern and prac tice of thwarting j udicial review”); Sze v. I.N.S. , 153 F.3d 1005, 1008 (9th Cir. 1998) (declining to apply the exception where the INS ruled on the plaintiffs’ applications for naturalization that th e plaintiffs argued were illegally delayed because

“ [p]laintiffs have demonstrated no more than correlation; they have not shown causation”) ; Rocky v. King , 900 F.2d 864, 870–71 (5th Cir. 1990) (“Th ere is no indication that Angola
officials will remove . . . inmates from field work before a district court rules on class
certification in order to render [a] claim [relating to conditions for field workers] moot.”).

To the extent that evidence of a defendant’s actual motive to avoid a class action is

necessary, 4 the evidence could support such a finding in this case. Here, the State did not address the delays relating to Pl aintiffs’ applications until afte r the lawsuit and contemporaneous motion for class certification were filed, despite the fact that Plai ntiffs had brought four of these
cases to the State’s attention before the lawsuit was filed. R. 53 (HaganDecl. ¶ 11) (Page ID #671); see also Pettrey , 584 F.3d at 707 (stating that the con cern related to “picking off named plaintiffs . . . arises[s] when a defendant attempts to eliminate the named plaintiffs at the outset

4 In Blankenship , we did not point to evidence of such an improper motive by the defendants, and instead “focused on the ability and action ” of the defendant in mooting named plaintiffs’ claims, whatever the reason. Appellee Br. at 50–51; Blankenship , 587 F.2d at 333. The cases from other circuits discussed above also did not point to evidence of such a motive, although all of those cases involved Rule 68 offers of judgment, which are intended to end litigation.No. 14-6191 Wilson, et al. v. Gordon, et al. Page 19

of the class action by convening an offer of judgment or settleme nt with the named plaintiffs before or immediately after a cl ass certification motion is filed” (emphasis added)). The exact timing of when the last claim of a class member identified by Plaintiffs was mooted—on the eve of the hearing on the preliminar y injunction and class certifica tion motions—would also support a finding of motive. R. 93 (Mot. Hr’g Tr. at 80–82) (Page ID #1424–26); see Sze , 153 F.3d at 1008 (finding no evidence that the defendants inte nded to avoid a class action where the last named plaintiff’s claim was not mooted until an appeal of summary judgment was pending before the Ninth Circuit) . Moreover, unlike in Cruz , Sze , or Rocky , the State in this case did not moot Plaintiffs’ claims through an established, standard proce dure such that it might more clearly be characterized as “incidental” or “a matter of standard operating procedure.” William B. Rubenstein, Newberg on Class Actions § 2:15 (5th ed. 2015) (notin g that it is possible when named plaintiffs’ claims are mooted by actions other than Rule 68 offers, “a defendant may unilaterally accord individual relief to a named plaintiff incidental ly or as a matter of standard operating procedure without any specific intenti on of preventing judicial review of class claims”). Instead, the State create d a new, ad hoc process to addres s Plaintiffs’ claims. Even if this evidence is not sufficient to find an improper motive at this stage in th e litigation, re versal on this ground would not be the answer: the district court should have the opportunity to make an evidentiary finding in the first instance.

In sum, we hold that the distri ct court had an adequate basis on which to conclude that the “picking off” exception applies to this case. As in Blankenship , absent application of the exception “the defendants may expedite processi ng for . . . plaintiffs named in a suit while continuing to allow long delays with respect to . . . other applicants. . . . [R]efusal to consider a class-wide remedy merely because individual cl ass members no longer need relief would mean that no remedy could ever be provided for continuing abuses.” 5 587 F.2d at 333.

5 A separate issue is whether the “picking off” exce ption applies at all where the named plaintiffs voluntarily settle their individual claims. Campbell-Ewald , which concerned an unaccepted settlement offer, provides no guidance. See 136 S. Ct. at 666. As discussed previously, we do not think that the Joint Motion should be treated the same as a voluntary settlement agreement. Even if it were equivalent, however, we still believe that the “picking off” exception applies. We recognize that this places us in some tension with other circuits. See, e.g. , Thomas v. Mamaso, Inc. , 548 F. App’x 131, 132 (5th Cir. 2013); Potter v. Norwest Mortgage, Inc. , 329 F.3d 608, 612–13 (8th Cir. 2003); Toms v. Allied Bond & Collection Agency, Inc. , 179 F.3d 103, 106–07 (4th Cir. 1999). However, we think that the proper focus of this exception is on the defendant’s behavior to avoid a class action.No. 14-6191 Wilson, et al. v. Gordon, et al. Page 20

3. “Capable of repetition yet evading review” exception
Finally, the district court e rred in holding that the “capab le of repetition yet evading review” exception to mootness applies to this case. For this exception to apply, “a challenged action must satisfy two requirements. First, it must be too short in duration to be fully litigated before it ceases. Second, there must be a reasonable expectation that the same parties will be subjected to the same action again.” Appalachian Reg’l Healthcare, Inc. v. Coventry Health & Life Ins. Co. , 714 F.3d 424, 430 (6th Cir. 2013 ) (citation omitted) (empha ses added). Plaintiffs cannot meet the second requirement. Medicaid reci pients’ eligibility must be reassessed every twelve months. 42 C.F.R. § 435.916(a)(1). However, federal regulations implementing Medicaid require that states continue to provide Medicaid to applicants while their applications
for renewal are considered. Id. § 435.930(b) (“The agency must . . . [c]ontinue to furnish Medicaid regularly to all eligib le individuals until they are found to be ineligible”). The State has not yet created a post-ACA redetermination proce ss. Appellant Br. at 33. Plaintiffs have not presented any evidence that the State will not comp ly with this federal requirement. Speculation based only on problems with initial enrollment in Medicaid does not give Plaintiffs a reasonable expectation that they will be subject to delays that will result in the loss of Medicaid coverage while the redetermination process is ongoing. Cf. Dean v. Austin , 602 F.2d 121, 124 (6th Cir. 1979) (“Similarly we do not believe that here pl aintiffs have offered any evidence which would create a reasonable expectation that the U.S. Labor Party will be subjected to the same actions again.”); see also Gawry , 395 F. App’x at 158 (“Carr has faile d to present evidence showing a ‘reasonable expectation’ or a ‘demonstrated probab ility’ that she will be subject to the type of Countrywide loan at issue in the future.”).

How the defendant is actually successful—whether thr ough unilateral action or settlement with the named plaintiffs—does not affect the policy rationales underlying th is exception, such as thwarting defendants’ efforts to “frustrate the objectives of class actions” or preventing “waste of judi cial resources by stim ulating successive suits brought by others claiming aggrievement.” Roper , 445 U.S. at 339. We also note that here, the importance of the voluntary

‒ involuntary distinction is certainly less than it is in cases where plaintiffs have a meaningful choice to accept or reject an offer. Plaintiffs are low-income i ndividuals who alleged that th e State denied them access to essential medical services. When the State finally agreed to evaluate their applications, could Plaintiffs really have rejected that offer in the hope that the district court would grant certification and eventually order relief?No. 14-6191 Wilson, et al. v. Gordon, et al. Page 21

III. ANALYSIS: The District Court Pr operly Issued a Preliminary Injunction.

A. Standard of Review

We must balance four factors in deciding whether to issue a preliminary injunction: “(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the inju nction; (3) whether issu ance of the injunction
would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction.” City of Pontiac Retired Emps. Ass’n v. Schimmel , 751 F.3d 427, 430 (6th Cir. 2014) (en banc) (internal quotation mark s omitted). “Whether the movant is likely to succeed on the merits is a question of law we review de novo.” Id. We review the overall determination of whether a preliminary injunc tion is warranted, however, for an abuse of
discretion. Id. “ This standard is deferential, but [we] may reverse the district court if it improperly applied the governing law, used an erroneous legal standard, or relied upon clearly erroneous findings of fact.” Id.

B. The District Court Did Not Abuse it s Discretion in Granti ng the Preliminary Injunction.

1. Plaintiffs are likely to succeed on the merits because Tennessee retains ultimate responsibility for administeri ng Medicaid despite the passage of the ACA.

The district court held that Plaintiffs are likely to succeed on the merits because “the State can[not] delegate its re sponsibilities under the Medicaid pr ogram to some other entity— whether that entity is a private party or the Federa l Government.” R. 91 (Order re: Prelim. Inj. at 5) (Page ID #1284). The district court found that “this principle is lo ngstanding and was not altered by the [ACA].” Id. The district court also gave we ight to the United States’ amicus curiae brief setting forth the same position. Id.
The crux of the State’s argument is that, by au thorizing federal Exchanges in the states, the ACA altered the prior rule th at the state Medicaid agency is ultimately responsible for administering Medicaid and ensuring it complies with federal law. Appellant Br. at 34–35. The
State claims that CMS is sole ly responsible for the delays in making benefits-eligibility
determinations. Id . at 8. Those delays, the State argues, arise because CMS “has not developedNo. 14-6191 Wilson, et al. v. Gordon, et al. Page 22

a process for reviewing the supplemental veri fication documentation submitted by applicants”
when there are data inconsistencies between info rmation on the applicant’s Medicaid application
and information in the Federal Data Services Hub. Id. at 9–10; United States Amicus Br. at 7. Additionally, the State argues that “the Federal Exchange has not provided the State with the basic information it needs to process . . . [delayed] applications itself.” 6 Appellant Br. at 10. Holding Tennessee responsible in this case, the State argues, would require Tennessee to supervise federal officials at CM S, violating long-standing federa lism principles, and the State asserts that nothing in the ACA gr ants states such authority. Id. at 35–36. Rather, the State argues that the “only remedy for delays at the hands of the Federal Exchange is against the
federal officials who oversee it.” Id. at 36.
a. Despite the passage of the ACA, states remain ultimately responsible for ensuring their Medicaid programs comply with federal law. We hold that the plain text of the Medica id statute and its implementing regulations
indicate that the district court did not err in holding that Plain tiffs are likely to succeed on the merits. Again, the Medicaid statute requires that the state designate “a single State agency to administer or to supervise the administration of the plan.” 42 U.S.C. § 1396a(a)(5). However, its implementing regulations prov ide that, although the state can delegate authority to other entities to perform certain functions, the state Medicaid agency “may not delegate, to other than its own officials, the authority to supervise the plan or to devel op or issue policies, rules, and regulations on program matters.” 42 C.F.R. § 4 31.10(c), (e). As the State acknowledges, courts have interpreted this regulation to mean that the state Medicaid agency remains “legally responsible for problems with a state’s Medicaid pr ogram notwithstanding delegations of authority to other state agencies or pr ivate parties.” Appellant Br. at 34; see, e.g. , Catanzano ex rel. Catanzano v. Dowling , 60 F.3d 113, 118 (2d Cir. 1995) (a ffirming the district court’s

6 When this suit was filed, the State argues, CMS did not share any informat ion with the State about pending TennCare applications, and now CMS only “intermittently” sends the St ate “‘special flat files’—essentially giant Excel spreadsheets—listing the names of people whose un adjudicated applications were flagged for some type of data inconsistency.” Appellant Br. at 10 (citing R. 54 (Long Decl. at 9–10) (Page ID #684–85); R. 80-3 (Long Supp. Decl. at 3, 6–7) (Page ID #1191, 1194–95)). However, the State argues that these files “do not contain reliable application dates or information from any subsequent correspondence between the applicant and the Federal Exchange.” Id. at 10–11 (citing R. 80-3 (Long Supp . Decl. at 4) (P age ID #1192)).No. 14-6191 Wilson, et al. v. Gordon, et al. Page 23

“persuasive reasoning” that “it is patently unrea sonable to presume that Congress would permit a state to disclaim federal respons ibilities by contracting away its obligations to a private entity” (internal quotation marks omitted)); McCartney ex rel. McCartney v. Cansler , 608 F. Supp. 2d 694, 701 (E.D.N.C. 2009) (holding that the stat e Medicaid agency “may not disclaim its responsibilities under federal law by simp ly contracting away its duties”), aff’d sub nom. D.T.M. ex rel. McCartney v. Cansler , 382 F. App’x 334 (4th Cir. 2010); Carr v. Wilson-Coker , 203 F.R.D. 66, 75 (D. Conn. 2001) (hol ding that the state Medicaid agency’s “duties relative to ensuring that the plaintiffs receive medical services with reasonable promptness are nondelegable”); J.K. ex rel. R.K. v. Dillenberg , 836 F. Supp. 694, 699 (D. Ariz. 1993) (“The law demands that the designated single state Medi caid agency must overs ee and remain accountable for uniform statewide utilization review proc edures conforming to bona fide standards of medical necessity.”); see also Tenn. Ass’n of Health Maint. Orgs., Inc. v. Grier , 262 F.3d 559, 565 (6th Cir. 2001) (holding that private entities that had contracted with TennCare are bound by a consent decree to which TennCare is a party b ecause they “are acting on behalf of the State, since the State, by statute, is the ‘single Stat e agency’ responsible for administration of the TennCare program” and citing 42 U.S.C. § 1396a(a)(5)).
Nothing in the ACA modifies this long-standi ng principle. In fact, 42 U.S.C. § 18118(d) provides that “[n]othing in this title (or an amendm ent made by this title, unless specified by direct statutory reference ) shall be construed to modify any existing Federal requirement concerning the State agency responsible for dete rmining eligibility for programs identified in section 18083 of this title,” wh ich includes Medicaid. 42 U.S.C. § 18118(d) (emphasis added). Tennessee cannot point to any direct statutory reference relieving states from their general obligation to ensure their Medicaid programs complywith federal law or relieving states from their obligation to pr ovide “a fair hearing before the State agency ” on delayed applications,

see 42 U.S.C. § 1396a(a)(3) (emphasis added)—the limited command of the preliminary injunction. Instead, the State point s to 42 U.S.C. § 18041(c)(1), whic h directs “the Secretary [to] . . . establish and operate such Exchange[s] with in the State” and to “take such actions as are necessary to implement such other require ments” that apply to state Exchanges, see 42 U.S.C. § 18041(c)(1), which the State argues includes pr omptly adjudicating claims and providing fair hearings, Reply Br. at 17.No. 14-6191 Wilson, et al. v. Gordon, et al. Page 24

The ACA does require the fede ral government to provide fa ir hearings on eligibility determinations made by the Exchange. 42 U.S.C. § 18081(f)(1). However, the better reading of the ACA is that it imposes a parallelobligation on the federal government to provide fair hearings on eligibility determinations made by the Exchange, which does not displace the state Medicaid agency’s general obligation to ensure fair hearings on all Medicaid eligibility
determinations. Exchanges: Eligibility and Enrollment , 78 Fed. Reg. 42160-01, 42164 (July 15, 2013) (explaining that “section 19 02(a)(3) of the Act . . . requir es” that individuals have “an opportunity for a fair hearing before the Medicaid agency” even if the stat e elects to have the federal government operate its Exchange); id. at 42165 (“[B]oth state Medicaid agencies and the Exchange have distinct respons ibilities to provide for such hearings, and we do not have authority to eliminate individua ls’ statutory rights, or a Medi caid agency’s or Exchange’s statutory responsibility.”).

Nor does the creation of the “determination” option for federal Exchange states provide the “direct statutory reference” for the State’s ar gument. The regulation allowing states to elect
to be a determination state also re quires that the state Medicaid agen cy “ensure” that “all relevant Federal and State law, regulations[,] and policies” are followed and to “institute corrective action as needed.” 42 C.F.R. § 431.10(c)(3). The re gulation also specifies that a state can only “[d]elegate authority to conduct fair hearings” for MAGI-bas ed categories to an Exchange—a delegation that requires a written agreement—“p rovided that individual s who have requested a fair hearing of such a denial are given a choice to have their fair hearing instead conducted by the Medicaid agency.” Id. §§ 431.10(c)(1)(ii), (d). A lthough it is not clear wh ether states can also delegate authority to conduct fa ir hearings on delayed applic ations—the sole focus of the preliminary injunction—this further illustrates th at the ACA creates parallel federal and state processes for aggrieved individuals.
b. The preliminary injunction does not require the State to supervise CMS. The State’s argument that the preliminary in junction would require it to supervise federal
officials at CMS overstates the scope of the preliminary injunc tion and is not grounded in the
facts of this case. The State’s sole support for this argument is th at, because the text of 42 U.S.C.No. 14-6191 Wilson, et al. v. Gordon, et al. Page 25

§ 1396a(a)(5) requires states to designate a single state agency “to administer or to supervise ” its Medicaid plan, it necessarily follows that the state Medicaid agency must always directly supervise any agency—be it another state agency, private entity, or the federal government—to ensure that its program is complying with fede ral law. Reply Br. at 15–17. However, direct supervision is not the only way a state can en sure compliance with federal law, as the preliminary injunction here illustrates. The pr eliminary injunction merely requires the State to provide its own hearing on delayed applications; it does not require the State to commandeer or directly supervise CMS. As discussed in the next subsection on whether the federal government is a required party, the State can obtain the ne cessary information from CMS to provide such hearings and even to make a final determination of an applicant’s eligibility for Medicaid—even though the preliminary injunction does not require it to do so—without impermissibly “supervising” CMS.
One final point is that the certified class in cludes individuals who have applied for nonMAGI categories of Medica id, and the State remains solely responsible for receiving applications and determining eligibility for these cat egories. Thus, there is no possibility that the State would have to supervise CM S to provide fair hearings for these class members. The State argues that the class does not include these indivi duals because the declar ations of individuals who applied for these categories of Medicaid did not state that they reques ted a hearing and were denied one, as the declarations of the named plai ntiffs do. Reply Br. at 23. However, the class certified by the district court does not specify th at only those who apply for MAGI categories of Medicaid are included; the class includes anyo ne who has applied for Medicaid and has not received a fair hearing on their de layed applications. R. 90 (Order re: Class Cert. at 8) (Page ID #1278). The State’s argument might be relevant if it had appealed the cla ss certification order, for example on the issues of comm onality or typicality. But the State did not appeal the class
certification order.
c. The United States’ position s upporting Plaintiffs’ argument is entitled to deference. Further support for Plaintiffs’ position can be found in the amicus curiae brief filed by the United States, which reiterates Plaintiffs’ ar guments. United States Amicus Br. at 12No. 14-6191 Wilson, et al. v. Gordon, et al. Page 26

(“[Appellants’] argument misses the point, which is not that the State should supervise a federal agency directly, but that the State Medicaid agen cy retains ultimate responsibility to ensure that the State Medicaid program is administered in ac cordance with the requirements of the Medicaid statute.”). The State argues th at the United States’ position s hould not be given deference because it is “wholly unsupported by regulations, rulings, or administrative practices,” and is “nothing more than [the] agency’s convenient li tigating position.” Appell ant Br. at 38 (quoting Smiley v. Citibank (South Dakota), NA , 517 U.S. 735, 741 (1996), and Bowen v. Georgetown Univ. Hosp. , 488 U.S. 204, 213 (1988)).
The United States’ position should be give n deference. As the above discussion demonstrates, the United States’ position is not “wholly unsupported.” Two additional factors present or cited in Bowen —that the agency was itself a part y and that the agency’s position espoused in litigation contradict ed prior interpretations of a statute, 488 U.S. at 212–13—are not present here. See, e.g. , Eligibility Changes Under the Affordabl e Care Act of 2010 , 77 Fed. Reg. 17144-01, 17188 (Mar. 23, 2012) (stating that “[a]s is true whenever a single State agency delegates authority to an other entity to make eligibility dete rminations, we continue to require that the single State agency must supervise th e administration of the plan, is responsible for making the rules and regulations for administer ing the plan, and is accountable for the proper administration of the program,” while acknow ledging in the same paragraph that “ delegation authority also applies to any Exchange operated by the Federal government”) . Moreover, “[u]nder Auer v. Robbins, 519 U.S. 452 (1997), [a c ourt must] defer to an agency’s interpretation of its own regulation, advan ced in a legal brief, unless that inte rpretation is ‘plain ly erroneous or inconsistent with the regulation.’” Chase Bank USA, N.A. v. McCoy , 562 U.S. 195, 208 (2011) (quoting Auer , 519 U.S. at 461). Nor is the United States’ position a “‘post hoc rationalizatio[n]’ advanced by an agency seeking to defe nd past agency action against attack.” Id. at 209 (quoting
Auer , 519 U.S. at 462) (alteration in original); see also N. Fork Coal Corp. v. Fed. Mine Safety &
Health Review Comm’n , 691 F.3d 735, 742 (6th Cir. 2012) (“[L]itigating positions [of federal agencies] are entitled to deference when they are not ‘ post hoc rationalization[s] ’ of previous agency actions.” (internal quotation marks omitted) (alteration in original)).No. 14-6191 Wilson, et al. v. Gordon, et al. Page 27

2. The federal government is not a required party.
The State also argues that th e federal government is a requi red party in this case. Appellant Br. at 42. Federal Rule of Civil Proced ure 19(a)(1) states that a party “must be joined” if “in that person’s absence, the court cannot ac cord complete relief among existing parties” or “that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may . . . leave an existing party subject to a substantial risk of incurring doubl e, multiple, or otherwise inconsis tent obligations because of the interest.” Fed. R. Civ. P. 19(a)(1). We review a district court’s decision whether a party must be joined under Rule 19(a)(1) for an abuse of discretion. PaineWebber, Inc. v. Cohen , 276 F.3d 197, 200 (6th Cir. 2001). The district court did not abuse its discretion in determining CMS is not a party that must be joined.
The State first argues that th e court cannot accord complete relief without CMS because “CMS at a minimum bears more responsibility than the State for the delays Plaintiffs experienced” and no regulation compels CMS to provide information to states on pending applications. Appellant Br. at 42–43. However, as Plaintiffs argue, the fact that there is no mechanism compelling CMS to transfer informati on to states on pending applications does not mean that there is no way for the State to obtai n the information necessary to hold a hearing on delayed applications. Appellee Br. at 38. As the di strict court held, “there is no legal or factual barrier preventing the State from obtaining information about part icular individuals from the Federal Exchange.” R. 91 (Order re: Prelim. Inj. at 7) (Page ID #1286). Moreover, the district
court’s factual determination that the State ha s proven it can do this—as demonstrated by “Ms. Hagan’s description of how the State was able to act on the applications of several of the
Plaintiffs and other individuals whose names were brought to the attention of the State”—is not clearly erroneous. Id. (citing R. 53 (Hagan D ecl.) (Page ID #667–75 )). Plaintiffs are also correct that, to the extent that CMS bears joint resp onsibility for delays in providing eligibilityNo. 14-6191 Wilson, et al. v. Gordon, et al. Page 28

determinations, the Supreme Court has held that joint tortfeasors are not required parties under Rule 19(a). Temple v. Synthes Corp. , 498 U.S. 5, 7 (1990). 7

Nor does the district court’s failure to join CMS subject the State to inconsistent legal obligations. Specifically, the Stat e argues that it cannot comply with the preliminary injunction without violating 42 C.F.R. § 431.242 and 42 U.S. C. § 18083(b)(2). Appellant Br. at 44–47; Reply Br. at 27–30.
Section 431.242 requires that, “before the date of [a] hearing,” an applicant “must be given an opportunity to . . . [e]xam ine at a reasonable time . . . [t]h e content of the applicant’s . . . case file; and [a]ll documents and records to be us ed by the State . . . at the hearing.” 42 C.F.R. § 431.242. The State argues that it cannot comply with this provision because it does not have an applicant’s “complete case f ile.” Appellant Br. at 45.

Plaintiffs and the United States have the be tter argument that the plain text of § 431.242 does not provide that a state can comply with its requirements only by providing an applicant the complete case file. Rather, it says only that a st ate must provide the applicant access to the “case file.” 42 C.F.R. § 431.242(a)(1); see also id. § 431.958 (defining “[c]ase record” as “either a hardcopy or electronic file that contains in formation on a beneficiary regarding program eligibility”). A “straightforward construction” of this provision is that “the State must simply provide all the evidence relate d to the applicant that it posse sses.” Appellee Br. at 40. The United States has similarly interpreted this regula tion to mean that “the agency complies with the regulation by making available th e relevant information it has” because “[t]he purpose of the requirement is to ensure that an applicant has access to the material the State Medicaid agency will consider in conducting a hearing.” United St ates Amicus Br. at 14. This interpretation— which does not contradict the unambiguous text of the regulation as the State argues, Reply Br. at 28—is similarly entitled to Auer deference, for the reasons disc ussed above in Section V.B.1. Nor do the regulations require that a hearing o fficer have access to a complete case file to determine the reason for the delay, as the Stat e suggests. Appellant Br. at 45. Rather, the

7 Although the State is correct that the district court in Temple labeled the “joint tortfeasors as indispensable parties under Rule 19(b),” Reply Br. at 27, the Supreme Court held that “no inquiry under Rule 19(b) is necessary[] because the threshold requirements of Rule 19(a ) have not been satisfied.” 498 U.S. at 8.No. 14-6191 Wilson, et al. v. Gordon, et al. Page 29

regulations require that “[h]eari ng recommendations or decisions must be based exclusively on evidence introduced at the hearing.” 42 C.F.R. § 431.244(a). Even if the State’s interpretation of the regulation is accepted, th e district court’s conclusion that the State could acquire information about an applicant’ s complete case file is not clearly errone ous for the reasons
discussed above in Section V.B.2.
42 U.S.C. § 18083(b)(2) states that “an applic ant filing” the streamlined application for health coverage “shall receive notice of eligibility for an applicable State health subsidy program without any need to provide additional informa tion or paperwork unless such information or paperwork is specifically required by law when in formation provided on the form is inconsistent
with data used for the electronic verification . . . or is otherwise insufficient to determine eligibility.” The State argues that the prelimin ary injunction may force them to violate this provision because “if the State wishes to actuall y adjudicate the Medicaid application submitted to the Federal Exchange, . . . the State has no choi ce but to ask applicants about their income and when they first applied to TennCare—information the Federal Exchange already has but refuses to share.” Appellant Br. at 45.
There are two problems with this argument. First, the preliminary injunction does not require the State actually to adjudicate class members’ benefits applications; it simply requires a fair hearing on the cause of the delay a nd whether that delay is reasonable. See R. 91 (Order re: Prelim. Inj. at 8–9) (Page ID #1287–88). Additio nal information an applicant might need to provide would simply be proof of the date his/ her application was submitted. Second, applicants are permitted to submit voluntarily additional info rmation at hearings. 42 C.F.R. § 431.242(b)– (e). Presumably, class members would be will ing to do so in order to obtain a hearing.
3. The district court did not abuse its discretion in determining that overall, the preliminary injunction was warranted. Finally, the district court did not abuse its di scretion in determining that, overall, the four preliminary injunction factors weigh in favor of granting the injunction. The State does not
contest that Plaintiffs have suffere d irreparable injury in the form of delays in medical treatment. Appellant Br. at 39. Courts routinely uphol d preliminary injuncti ons where the alleged irreparable harm involves delay in or inability to obtain medical services and the party againstNo. 14-6191 Wilson, et al. v. Gordon, et al. Page 30

whom the injunction is issued claims that th e injunction places significant costs on them. See,

e.g. , Blum v. Caldwell , 446 U.S. 1311, 1315–16 (1980) (declining to stay an injunction even though “counsel for petitioner estimated that the State will have to expend an additional $150 million per year in Medicaid benefits as a result of the decision below” because “[o]n the other
side of the balance are the life and health of the members of this class: persons who are aged, blind, or disabled and unable to provide for necessary medical care because of lack of resources”); Yolton v. El Paso Tenn. Pipeline Co. , 435 F.3d 571, 584 (6th Cir. 2006) (holding
that the district court did not abuse its discre tion in granting an injunction even though it “will place a substantial expense on the defendants” inpart because “the plaintiffs would suffer irreparable harm without the in junction,” including the possibility that “retirees [would] be[] unable to afford prescrip tions or doctor visits”).
Although the State claims that its resources wo uld be better spent working with CMS to find solutions to delays faced by class members, it is not clear why the St ate cannot continue to work with CMS while also complying with the district court’s injunction. Nor does the fact that the State has taken some steps to remedy the problems faced by the class relieve it of its obligation to provide hearings that it is like ly statutorily and constitutionally obligated to provide. And as Plaintiffs note, some of th e steps the State has taken occurred only after litigation commenced, even though Pl aintiffs’ counsel had met with the State prior to filing this lawsuit. Appellee Br. at 45 (citi ng R. 53 (Hagan Decl. ¶ 5) (Page ID #669)). Finally, neither of the cases cited by the State to support its argument that extra judicial defe rence to the State is warranted given that the ACA is relatively ne w are on point. Neither involved a preliminary injunction, and both concerned deference to an agency ’s interpretation of its own regulations or implementing statute. Power Reactor Dev. Co. v. Int’l Union of Elec., Radio & Mach. Workers , 367 U.S. 396, 408 (1961); Cmty. Health Ctr. v. Wilson-Coker , 311 F.3d 132, 138 (2d Cir. 2002).

IV. CONCLUSION

For the reasons set forth above, we AFFIRM the district court’s grant of a preliminary injunction.No. 14-6191 Wilson, et al. v. Gordon, et al. Page 31

_________________ DISSENT

_________________ SUTTON, Circuit Judge, dissenting. This injunction action is moot by any conventional measure. The eleven plaintiffs filed this class action in orde r to obtain determinations about whether they are eligible to ob tain Medicaid benefits. Before the court certif ied the proposed class, the plaintiffs obtained a commitment fr om the State, through a bargained-for agreement between the parties, that the State would provide each of the named plaintiffs and 100 others of the plaintiffs’ choosing with an e ligibility determination. The Stat e delivered on its promise. All eleven named plaintiffs received that determin ation and now all eleven are obtaining Medicaid
benefits. The 100 other individuals obtained th e sought-after determinations, and the vast majority of them now are receiving Medicaid be nefits. (The others were not fully processed because the State had not received the proper documentation.) The plaintiffs asked and now have received. Because the plainti ffs received all of their reques ted injunctive relief before class certification, the case is moot. Alvarez v. Smith , 558 U.S. 87, 92–94 (2009); Pettrey v. Enter. Title Agency, Inc. , 584 F.3d 701, 703 (6th Cir. 2009).
Neither the court nor “[t]he parties . . . dispute that all elev en named plaintiffs’ individual
claims became moot before the dist rict court certified the class.” Supra at 7. The court offers two alternative grounds for nonetheless saving the case. With respect, I am not persuaded.
1. The first is that the “inherently transito ry” nature of these claims keeps any mootness problems at bay. To meet this te st, however, the claims must be so “fleeting” that “no plaintiff [will] possess[] a personal stake in the suit” long enough for the trial court “to rule on a motion
for class certification.” Genesis Healthcare Corp. v. Symczyk , 133 S. Ct. 1523, 1531 (2013).
The cause of action in other words must moot itsel f due to some inherent time limit in the nature of the claims that expires before class certification. Accord County of Riverside v. McLaughlin , 500 U.S. 44, 47–48 (1991). These Medicaid requests, however, will remain as alive as ever until the State processes the plaintiffs’ applications—until, that is, the plaintiffs get what they asked
for.No. 14-6191 Wilson, et al. v. Gordon, et al. Page 32

What makes these claims inherentlytransitory, the court responds, is uncertainty over whether the claims will remain pending through class certification—uncer tainty sparked by the possibility in this case (and in any other) that th e defendant will grant the relief requested. Yet
that is not what makes a claim “i nherently,” as opposed to potential ly, transitory. To inhere in something is to “exist as a permanent, inseparable, or essential attribute” of it. Black’s Law Dictionary 902 (10th ed. 2014). As Genesis explains, inherently transitory claims are ones where “no plaintiff” will retain a live claim long enough to reach class certif ication. 133 S. Ct. at 1531. The question is whether the clai m has a built-in expiration date. See Susman v. Lincoln Am. Corp. , 587 F.2d 866, 870 (7th Cir. 1978). That is not this claim, and it is not this case.
2. As an alternative explanation for saving this case, the court invokes a “picking off” exception to mootness. The idea is that defendant s should not be able to avoid class actions by intentionally mooting the name d plaintiffs’ claims. But this consideration applies after the
district court has ruled on a class-certification motion. See Deposit Guar. Nat’l Bank v. Roper , 445 U.S. 326, 339–40 (1980).

That is not this case. Whatever the me rits of this debate one way or another before a district court rules on a class-certification moti on, I doubt that it is advanced by pejorative or euphemistic labels. One person’s “picking off” may be another person’s “making whole.” Civil
Rule 68 indeed encourages the “picking off” and “making whole” of claims. It says that, if a plaintiff rejects a defend ant’s offer of judgment under Rule 68 and later receives a smaller award at trial, the plaintiff “must pay the costs” the de fendant “incurred after the offer was made.” Fed. R. Civ. P. 68(d). The point is to incentivize settlement, to deter protracted litigation, and in the process to advance Rule 1’s goa l of the “just, speedy, and ine xpensive” resolution of “every action and proceeding.” See Marek v. Chesny , 473 U.S. 1, 5 (1985). In the mine run of disputes with several alleged victims, it seems just as li kely that the defendant who promptly offers to make claimants whole will encourage more claimant s to file as not—if there is something to the claims. That is particularly so in cases like th is one, where the plainti ffs may obtain attorney’s fees if they prevail. See 42 U.S.C. § 1988. Yet if no other claimant s step up to the pl ate, it is fair to ask whether the dispute calls for class action re solution, especially when fees remain available to encourage private enforcement of individual cl aims. How at any rate will named plaintiffs,No. 14-6191 Wilson, et al. v. Gordon, et al. Page 33

once made whole, be adequate, to say nothing of good and productive, represen tatives of a class
of individuals who have not receiv ed their hearings? La bels do not answer th ese questions in the context of a mootness inquiry thatarises before the district c ourt rules on a class-certification
motion.
“Picking off” is an especially unhelpful label in this case. The State did not limit its offer and provision of relief to the eleven named plai ntiffs. It offered relie f to those plaintiffs and 100
others of the plaintiffs’ choosing. If that is evid ence of the State’s “actual motive” in the case,

supra at 18, it would seem to be evidence of a good motive, not a bad one.
The court overstates in maintaining that our circuit has already established a “picking off” exception that saves th is kind of case and others like it from mootness. Brunet v. City of
Columbus , 1 F.3d 390, 400 (6th Cir. 1993), says that “[s]ome courts” in other circuits have adopted this exception but that, even if such an exception did exist, it would not apply on the
facts at issue there. Carroll v. United Compucred Collections, Inc. , 399 F.3d 620, 625 (6th Cir. 2005), holds only that a Rule 68 o ffer of judgment does not moot a class action after a “Report and Recommendation ha[s] been issued by the ma gistrate judge recomme nding that a class be certified.” No such ruling occurred here. Nor did Blankenship v. Secretary of Health, Education, and Welfare , 587 F.2d 329 (6th Cir. 1978), a case that predates Roper and Genesis , establish a broad picking-off exception in its one- paragraph analysis, as our later cases reveal.
I agree with the majority th at class action issues like these present “considerable complexit[ies].” Supra at 9 n.2. For that reason, I would pref er to stick closel y to our precedent and wait for further guidance from the Supreme C ourt before adding new mootness exceptions in
this area.
The majority seeing things differe ntly, I respectfully dissent.