Barry v. Corrigan
Filing
106
OPINION and ORDER Partially Granting and Partially Denying Plaintiffs' 95 Motion to Strike, Denying Defendant's 93 Motion for Reconsideration, and Denying Defendant's 94 Motion to Stay - Signed by District Judge Judith E. Levy. (FMos)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Walter Barry, et al.,
Plaintiffs,
Case No. 13-cv-13185
Hon. Judith E. Levy
v.
Nick Lyon, in his capacity as
Acting Director, Michigan
Department of Human Services,
Defendant.
________________________________/
OPINION AND ORDER PARTIALLY GRANTING AND
PARTIALLY DENYING PLAINTIFFS’ [95] MOTION TO STRIKE,
DENYING DEFENDANT’S [93] MOTION FOR
RECONSIDERATION, AND DENYING DEFENDANT’S [94]
MOTION FOR STAY
This matter is before the Court on defendant’s Motion for
Reconsideration (Dkt. 93) of this Court’s January 9, 2015 Opinion and
Order (Dkt. 91), defendant’s Motion to Stay Judgment (Dkt. 94) pending
resolution of his motion for reconsideration, and plaintiffs’ Motion to
Strike (Dkt. 95) exhibits from defendant’s motion for reconsideration.
1
For the reasons set forth below, the Court will partially grant plaintiffs’
motion and deny defendant’s motions.
I.
Background
The factual background to this case is recounted in the Court’s
January 9, 2015 Opinion and Order (Dkt. 91) and is adopted here. By
that order, the Court granted plaintiffs’ motion for class certification,
granted
plaintiffs’
motion
for
summary
judgment,
and
denied
defendant’s motion to dismiss or, in the alternative, for summary
judgment. Defendant now seeks reconsideration of that order, as well
as a stay of judgment. Defendant attached four exhibits to his motion
for reconsideration; plaintiffs have moved to strike all four exhibits.
II.
Standard
Defendant’s motion is brought as a motion for reconsideration
under E.D. Mich. L.R. 7.1(h) and as a motion to amend or alter
judgment under Fed. R. Civ. P. 59(e). While the standard is articulated
differently for each type of motion, the Sixth Circuit and courts in this
district have held the standards are effectively the same.
See
Henderson v. Walled Lake Consol. Schs., 469 F.3d 479, 496 (6th Cir.
2006); Hence v. Smith, 49 F. Supp. 2d 547, 550 (E.D. Mich. 1999).
2
Defendant’s motion cites the standard as articulated in Local Rule
7.1(h); the Court will do so as well. Under that standard, a movant
must “not only demonstrate a palpable defect by which the court and
the parties and other persons entitled to be heard on the motion have
been misled but also show that correcting the defect will result in a
different disposition of the case.” E.D. Mich. L.R. 7.1(h)(3); Hence, 49 F.
Supp. 2d at 550. “A palpable defect is a defect that is obvious, clear,
unmistakable, manifest or plain.” Witzke v. Hiller, 972 F. Supp. 426,
427 (E.D. Mich. 1997).
A motion for reconsideration, however, “is not a vehicle to re-hash
old arguments, or to proffer new arguments or evidence that the movant
could have presented earlier.”
Gowens v. Tidwell, No. 10-10518, 2012
WL 4475352, at *1 (E.D. Mich. Sept. 27, 2012) (citing Sault St. Marie v.
Engler, 146 F.3d 367, 374 (6th Cir.1998)); accord Roger Miller Music,
Inc. v. Sony/ATV Publ'g, 477 F.3d 383, 395 (6th Cir.2007) (noting “[i]t
is well-settled that parties cannot use a motion for reconsideration to
raise new legal arguments that could have been raised before a
judgment was issued”); Owner–Operator Indep. Drivers v. Arctic
Express, Inc., 288 F. Supp. 2d 895, 900 (S.D. Ohio 2003) (stating that
3
“[m]otions for reconsideration do not allow the losing party ... to raise
new legal theories that should have been raised earlier.”).
Accordingly, “a party may not introduce evidence for the first time
in a motion for reconsideration where that evidence could have been
presented earlier.”
Shah v. NXP Semiconductors USA, Inc., 507 F.
App'x 483, 495 (6th Cir. 2012) (affirming denial of motion for
reconsideration brought under local rules of Eastern District of
Michigan); accord Bank of Ann Arbor v. Everest Nat. Ins. Co., 563 F.
App’x 473, 476 (6th Cir. 2014) (holding party may not introduce evidence
for the first time in a Rule 59(e) motion that could have been presented
earlier). “If district judges were required to consider evidence newly
presented but not newly discovered after judgment, there would be two
rounds of evidence in a great many cases.”
Navarro v. Fuji Heavy
Industries, Ltd., 117 F.3d 1027, 1032 (7th Cir. 1997).
Whether to strike new evidence or only to disregard it is within
the district court’s discretion.1
See, e.g., Int’l Union, United Auto.,
Defendant suggests that even if new evidence could be stricken under Rule 59(e),
it should still be part of the record under Local Rule 7.1, because plaintiffs’ motion
was “filed only as to Fed. R. Civ. P. 59(e).” (Dkt. 99, Def.’s Resp. to Mot. to Strike.)
However, the standard is the same for motions under Rule 59(e) and Local Rule 7.1.
E.g., Shah, 507 F. App’x at 495. Moreover, plaintiffs’ motion is to “Strike Exhibits
1
4
Aerospace, & Agricultural Implement Workers of Am. v. Aguirre, 410
F.3d 297, 304 (6th Cir. 2005) (reviewing district court’s striking of
affidavit under abuse-of-discretion standard).
III. Analysis
A.
Plaintiff’s Motion to Strike
The challenged exhibits are an affidavit of Dale Shaw, a policy
analyst at the Department of Human Services (Dkt. 93-2, Ex. 1 to Def.’s
Mot. Recon.); an affidavit of David Russell, acting director of DHS’
Office of Inspector General (“OIG”) (Dkt. 93-3, Ex. 2); a chart with the
text of 7 U.S.C. § 2015(k) and 42 U.S.C. § 1382(e)(4) (Dkt. 93-4, Ex. 3);
and an email dated November 5, 2014, from Robin Thomas in OIG to
defense counsel Joshua Smith and others. (Dkt. 93-5, Ex. 4.)
Plaintiffs contend all four exhibits could have been submitted
before entry of the Court’s January 9, 2015 order and should therefore
be stricken.
Defendant’s response is that they could not have been
submitted earlier, and the Court is to blame. In making this argument,
defendant relies on misrepresentations of law and fact and upon
Attached to Defendant’s Motion for Reconsideration or to Alter Judgment.” (Dkt.
95, Pls.’ Br. 1.) Its very title addresses both forms in which defendant brought his
motion.
5
baseless suggestions of impropriety on the part of plaintiffs’ counsel and
of bias on the part of this Court.
1.
The Court’s treatment of plaintiffs’ pre-judgment
submissions
Defendant’s first argument does not address whether the exhibits
could have been presented earlier. Instead, defendant claims plaintiffs,
without leave of Court, filed supplemental authority after the close of
briefing on the cross-motions for summary judgment, and “this Court
accepted” that authority.
(Dkt. 99, Def.’s Br. 2.)
Then, plaintiffs
“improperly offer[ed] evidence at the hearing” on November 14, 2014,
but the impropriety “did [not] stop this Court from accepting that
evidence over Defendant’s objection.” (Id. at 3 n.1.) Refusing to accept
defendant’s exhibits would thus be unfair.
There is more petulance than substance here. True, plaintiffs did
file supplemental authority after the briefing closed, and without leave
of Court.
(Dkt. 89.)
The supplemental authority consisted of two
opinions from a similar case in this district, issued after the close of
briefing and two weeks before oral argument in this case. It is far from
uncommon for parties to point to supplemental authority outside of
scheduled briefing, even at a hearing on a motion. Here, defendant had
6
ample opportunity to address that authority at the hearing, or to move
to strike the filing. At any rate, what plaintiffs did is qualitatively and
significantly different from what defendant attempts to do here –
namely, to submit new evidence, after judgment.
Defendant’s allegation that the Court improperly accepted
evidence at the November hearing is simply false. Plaintiffs proffered
copies of two Social Security benefit disqualification notices that were
part of the pleadings in another lawsuit. The Court stated on the record
that it was not taking evidence at the hearing, that it noted defendant’s
objection to the notices, and that the notices would not be docketed as
part of the record in this case. Indeed, the notices are not part of the
record in this case. Nor are the notices cited or relied upon anywhere in
the Court’s January 9, 2015 order. (See Dkt. 91.)
In sum, defendant’s charge of unequal treatment by the Court is
meritless and does not support admission or consideration of
defendant’s exhibits.
2.
The Court’s alleged rejection of supplemental briefing
Defendant next argues that he tried to present the challenged
evidence at the hearing, but was rebuffed by the Court. Specifically,
7
defendant claims that “[a]t several junctures during the hearing,
Defendant offered to provide supplemental briefs to the Court.
For
instance, as this Court notes in its Decision and Order, Defendant
referenced the rescission of Plaintiff Walter Barry’s second felony
warrant at oral argument. Each time, the Court rejected those offers.”
(Dkt. 99, Def.’s Resp. 3 & n.2.)
The claim that the Court rejected evidence regarding Barry’s
second warrant is false. In fact, defendant did not offer to provide a
supplemental brief, or to submit additional evidence, on the alleged
rescission of Barry’s second felony warrant. Nor did defendant offer
supplemental briefing or evidence on any of the issues related to the
exhibits to his motion for reconsideration.
Rather, defendant’s counsel offered supplemental briefing on two
tangential issues: (1) the qualifications of proposed class counsel and (2)
whether Michigan can indirectly require photo identification as part of
the benefit reinstatement process. The Court declined supplemental
briefing on the second issue, but defendant’s counsel admitted that
issue was tangential – effectively acknowledging that supplemental
briefing was unnecessary. As for the first issue, defendant’s counsel
8
stated he had no reason to dispute the qualifications of proposed lead
class counsel. Again, defendant’s counsel effectively acknowledged that
supplemental briefing was unnecessary. Moreover, the Court did not
reject briefing on this issue, but expressly left open the possibility that
supplemental briefing could be requested.
3.
Timing of the Court’s opinion and order
Defendant’s
third
argument
also
rests
on
a
factual
misrepresentation; namely, that “the Court stated that it would issue a
decision with relative speed.” (Dkt. 99, Def.’s Resp. 3.) In fact, the
Court stated that it would “work as fast as I can” but “can’t give you an
exact date.” The Court also emphasized – repeatedly – that it wished to
take a close look at the numerous issues in this case and give them
careful attention.
Even assuming that the Court had indicated an opinion was
imminently forthcoming, defendant could have immediately moved to
introduce new evidence, either at the hearing or by written motion that
same day or the next. Instead, defendant inexplicably decided it would
be pointless to do so, and now blames the Court for his own
misjudgment.
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4.
Completeness of the record
Finally, defendant proclaims that “the essential issue remains
whether this Court’s decision should be based on complete and accurate
facts.” (Dkt. 99, Def.’s Resp. 4.) Counsel’s job is, in part, to ensure the
Court has complete and accurate facts before making a decision. Any
incompleteness or inaccuracy – and the Court finds neither here – is
entirely due to defendant’s unexplained failure to submit evidence in a
timely manner.
Even if the Court were to consider defendant’s new evidence, the
outcome of this case would be no different. Acceptance of the Russell
affidavit would not remedy the legal errors and evidentiary problems
with its contents, as discussed below.
As explained in the Court’s
Opinion and Order, defendant’s best efforts to pick off the individual
named plaintiffs – efforts that continued until the eve of the November
hearing – came too late to moot the class claims in this case. Those
efforts were also not enough to moot the individual claims of four of the
five named plaintiffs.
5.
Conclusion
10
Defendant has failed to show his exhibits could not have been
presented before judgment in this case. Exhibit 3, however, consists
solely of the text of two statutory provisions already presented to and
analyzed by the Court: 7 U.S.C. § 2015(k) and 42 U.S.C. § 1382(e). As
such, Exhibit 3 is not “new evidence,” and will not be stricken from the
record.
Exhibits 1, 2, and 4 are new evidence and could have been
presented to the Court earlier. All three exhibits will be stricken for
this reason, as well as for additional reasons. Admitting the affidavits
in Exhibits 1 and 2 would prejudice plaintiffs, as they would have no
opportunity to present counter-evidence or to depose affiant Russell.
Russell’s affidavit does not indicate his competence to testify as to (1)
matters of constitutional law, including adequacy of notice under the
Fourteenth Amendment; (2) matters of statutory law, including the
meaning and scope of Michigan law governing LEIN use and of federal
law governing disqualification from SNAP benefits; and (3) matters of
criminal procedure, including how warrants function.
Russell’s
affidavit also appears to be inadmissible opinion testimony. See Fed. R.
Evid. 701, 702. For these reasons, his affidavit cannot be considered in
11
deciding the motions for summary judgment.
See Fed. R. Civ. P.
56(c)(4); Alexander v. CareSource, 576 F.3d 551, 558 (stating that
“evidence submitted in opposition to a motion for summary judgment
must be admissible”). The statements in the email offered as Exhibit 4
constitute hearsay and, as such, could not be considered on a motion for
summary judgment. Fed. R. Evid. 801, 802; Wiley v. United States, 20
F.3d 222, 226 (6th Cir. 1994).
B.
Defendant’s Motion for Reconsideration (Dkt. 93)
Defendant raises four grounds for reconsideration. One of them is
presented here for the first time; the other three have already been
presented to and analyzed by the Court. As such, none is a proper
ground for reconsideration.
Reliance Mediaworks (USA) Inc. v.
Giarmarco, 549 F. App’x 458 (6th Cir. 2013) (holding party cannot raise
issue on motion for reconsideration that it had raised in earlier filings
but declined to brief thereafter); Sault St. Marie, 146 F.3d at 374;
Gowens, 2012 WL 4475352, at *1; E.D. Mich. L.R. 7.1(h)(3). The Court
will nonetheless explain why each argument fails to establish a
“palpable defect,” the correction of which would result in a different
outcome.
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1.
Burford abstention does not apply
Defendant resurrects an old argument, last made a year and a
half ago in his response (Dkt. 30) to plaintiff’s motion for preliminary
injunction, that this Court “must decline” to exercise jurisdiction over
this matter, under Burford v. Sun Oil Co., 319 U.S. 315, 318 (1943).
Under the so-called “Burford doctrine,”
Where timely and adequate state-court review is available, a
federal court sitting in equity must decline to interfere with
the proceedings or orders of state administrative agencies:
(1) when there are difficult questions of state law bearing on
policy problems of substantial public import whose
importance transcends the result in the case then at bar; or
(2) where the exercise of federal review of the question in a
case and in similar cases would be disruptive of state efforts
to establish a coherent policy with respect to a matter of
substantial public concern.
New Orleans Public Service, Inc. v. Council of City of New Orleans, 491
U.S. 350, 361 (1989) [hereinafter “NOPSI”].
The balance between
federal and state interests “only rarely favors abstention, and the power
to dismiss recognized in Burford represents an extraordinary and
narrow exception to the duty of the District Court to adjudicate a
controversy properly before it.” Adrian Energy Assocs. v. Michigan Pub.
13
Serv. Comm’n, 481 F.3d 414, 423 (6th Cir. 2007) (quoting Quackenbush
v. Allstate Ins. Co., 517 U.S. 706, 728 (1996)).
There are no “difficult questions of state law” here, only questions
of federal law. And where the claim is, as here, that federal law has
preempted the state’s regulatory authority, “federal adjudication . . .
would not disrupt the State’s attempt to ensure uniformity in the
treatment of an essentially local problem.” NOPSI, 491 U.S. at 362
(citing Alabama Pub. Serv. Comm’n v. Southern Ry. Co., 341 U.S. 341,
347 (1951)). Burford abstention is unwarranted here.
2.
Comparison of the SNAP Act with the Social Security
Act
Defendant rehashes his previous argument that significant
textual differences counsel against looking to 42 U.S.C. § 1382(e) as an
aid to interpretation of 7 U.S.C. § 2015(k).
The Court has already
explained that “in the absence of a plain indication to the contrary, . . .
Congress when it enacts a statute is not making the application of the
federal act dependent on state law.”
Mississippi Band of Choctaw
Indians v. Holyfield, 490 U.S. 30, 43 (1989) (quoting Jerome v. United
States, 318 U.S. 101, 104 (1943)). Defendant again cites no authority to
14
the contrary.
And there is no “plain indication” in § 2015(k) that
Congress intended for states to define “fleeing.”
Defendant likewise cites no authority for his new argument that
the “actively seeking” requirement is not operative until the Secretary
of Agriculture promulgates a final regulation.
Section 2015(k)(2)(B)
clearly indicates Congress’ intent that only persons actively sought by
law enforcement may be disqualified from food assistance.2
Finally, the verb “is fleeing” is not “passive,” as defendant
contends, presumably meaning the passive voice.
“Is fleeing” is the
present continuous or present progressive, a form of the present tense
used to indicate action that is ongoing in present time. Verb Tenses,
Oxford
Dictionaries,
http://www.oxforddictionaries.com/words/verb-
tenses#continuous (last visited March 23, 2015).
3.
The claims of plaintiffs Barry and Copeland are not
moot
Defendant misapplies the interpretive canon expressio unius, exclusio alterius. As reflected in its
Latin name, the canon applies when, of two terms, only one, and not the other, appears in the
statutory provision. Here, both “fleeing” and “actively seeking” appear in section 2015. The
argument that “actively seeking” must be defined before becoming operative is not the same as the
argument that “actively seeking” does not appear in the provision at all, and therefore was
intentionally left out.
2
15
Defendant’s mootness arguments have already been addressed in
the Court’s January Opinion and Order. If the Court were to consider
defendant’s Exhibits 1 and 4, a different outcome would not result. Nor
would a different outcome result even if the Court found Copeland’s and
Barry’s claims moot. That is because plaintiff Anderson’s claims would
remain, and, more importantly, mooting the named plaintiffs’ claims
while a motion for class certification is pending does not moot the case.
See Carroll v. United Compucred Collections, Inc., 399 F.3d 620, 625 (6th
Cir. 2005); Dozier v. Haverman, No. 14-12455, 2014 U.S. Dist. LEXIS
153395, at *25-36 (E.D. Mich. Oct. 29, 2014). Reconsideration on this
issue would thus be inappropriate, because a movant must “not only
demonstrate a palpable defect . . . but also show that correcting the
defect will result in a different disposition of the case.” E.D. Mich. L.R.
7.1(h)(3) (emphasis added).
4.
This Court’s order does not require defendant to violate
state law
16
Finally, defendant argues, for the first time, that the Court’s
January 9, 2015 order requires DHS employees to violate Michigan law
– specifically, Mich. Comp. Laws §§ 28.214(3) and (5).3
There is no colorable argument that subsection (3) could be
violated here. Subsection (3) provides that “[a] person shall not access,
use, or disclose nonpublic information governed under this act for
personal use or gain.” Defendant has not indicated where this Court
ordered disclosure of LEIN information for the personal use or gain of
DHS employees.
Subsection (5) provides that “[a] person shall not disclose
information governed under this act in a manner that is not authorized
by law or rule.” Defendant also cites Mich. Admin. Code R. 28.5208(4),
which provides that “[e]xcept as permitted in these rules or if
authorized by statute, information from LEIN, AFIS, or other
Defendant maintains that “implicit in the Court’s holding is the finding that the
Department does not inform clients of the nature of the intended action and its
duration. But this implied finding is inaccurate.” The Court ordered defendant to
“provid[e] notice that explains, in detail: (1) The nature of the intended action and
its duration.” (Dkt. 91, Opinion and Order 95) (emphasis added). The implication is
not that defendant “does not inform” clients at all, but that defendant does not
explain the disqualification with the level of detail required by both the SNAP Act
and the Due Process Clause of the Fourteenth Amendment.
3
17
information systems shall not be disseminated to an unauthorized
agency, entity, or person.”
The Court did not order defendant to disclose LEIN information.
Rather, the Court ordered defendant to disclose certain information
about a disqualifying warrant to an applicant for or recipient of food
assistance benefits. While DHS might initially obtain that information
from LEIN, it can (and must) then verify that information – as DHS
already does in other contexts – by, for example, contacting law
enforcement or the relevant prosecuting attorney’s office. Information
obtained from those sources is not covered by Mich. Comp. Laws §
28.214(5) or Mich. Admin. Code R. 28.5208(4).
Furthermore, state law may, in fact, authorize the disclosure of
LEIN information in these circumstances.
Subsection (5) prohibits
disclosure “in a manner that is not authorized by law or rule.”
Subsection (1)(a)(iii) requires the Policy Council to “[e]nsure access by
the Department of Human Services to information necessary to
implement section 10c of the Social Welfare Act.” Mich. Comp. Laws §
28.214(1)(a)(iii).
In turn, section 10c provides that, upon receiving
information of an outstanding felony warrant, DHS “shall notify the
18
local office handling the recipient’s public assistance case of that
outstanding felony warrant or extradition warrant.” Mich. Comp. Laws
§ 400.10c(1).
The local office then “shall take appropriate action
regarding cases that local office receives notification of under this
subsection.” In short, LEIN information must be provided to DHS to
implement section 10c, and section 10c authorizes DHS, through its
local office, to “take appropriate action” regarding outstanding felony
warrants.
Surely,
“appropriate
action”
includes
providing
constitutionally adequate notice of disqualification from benefits.
C.
Defendant’s Motion to Stay Judgment pending
resolution of her Motion for Reconsideration (Dkt. 94)
Because defendant’s motion for reconsideration has been resolved,
her motion to stay will be denied as moot.
III. Conclusion
Accordingly, plaintiffs’ Motion to Strike (Dkt. 95) is GRANTED as
to Exhibits 1, 2, and 4 to defendant’s Motion for Reconsideration;
Plaintiff’s Motion to Strike is DENIED as to Exhibit 3 to
defendant’s Motion for Reconsideration;
Defendant’s Motion for Reconsideration (Dkt. 93) is DENIED; and
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Defendant’s Motion to Stay Judgment is DENIED as moot.
IT IS SO ORDERED.
Dated: March 24, 2015
Ann Arbor, Michigan
s/Judith E. Levy
JUDITH E. LEVY
United States District Judge
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on March 24, 2015.
s/Felicia M. Moses
FELICIA M. MOSES
Case Manager
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