Barry v. Corrigan

Filing 114

ORDER REGARDING AMENDED CLASS NOTICE 107 AND IMPLEMENTATION OF THE COURTS JANUARY 9, 2015 ORDER 91 Signed by District Judge Judith E. Levy. (Bankston, T)

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.
________________________________/
ORDER REGARDING AMENDED CLASS NOTICE [107] AND
IMPLEMENTATION OF THE COURT’S JANUARY 9, 2015
ORDER [91]
This matter is before the Court on plaintiffs’ Amended Proposed
Notice (Dkt. 107) to the class certified in the Court’s January 9, 2015
Opinion and Order (Dkt. 91). The Court held a status conference with
the parties on March 24, 2015, at which the contents of plaintiffs’
original proposed notice (Dkt. 98) and defendant’s objections to the
notice (Dkt. 102) were discussed. Plaintiffs were permitted to file an
amended proposed notice based on those discussions.
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Having

thoroughly reviewed the parties’ submissions on the proposed notice
and the amended proposed notice, and having carefully considered
defendant’s objections to the proposed notice, as articulated both in his
response brief and through counsel at the status conference, the Court
ORDERS that:
(1)

Plaintiffs’ Amended Proposed Notice to Class (Dkt. 107-1),

Claim Form for FAP (Dkt. 98-3), Hearing Form (Dkt. 98-4), and
Poster (Dkt. 98-5) are APPROVED as to form and content1;
(2)

Within 28 days of entry of this Order, defendant shall mail

the Notice (Dkt. 107-1), Claim Form (Dkt. 98-3), Hearing Request
Form (Dkt. 98-4), an application for food assistance benefits, and a
postage paid envelope addressed to Department of Human
Services,

Barry

Lawsuit

Processing

Unit,

[address

to

be

determined], to all class members, by first class mail addressed to
the last address known to the Department of Human Services
(DHS);
Defendant objects that the Notice must inform class members that they may opt
out of the litigation and that they may enter an appearance through their own
attorney, under Fed. R. Civ. P. 23(c)(2)(B). (Dkt. 102 at 5.) But Rule 23(c)(2)(B)
only applies to classes certified under Rule 23(b)(3). The class in this case was
certified under Rule 23(b)(2). (Dkt. 91, Opinion and Order 91.) Rule 23(c)(2)(A)
thus applies to the Notice, which is only required to be “appropriate.”

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2

(a)

DHS shall fill in information specific to each class

member on the Notice, Claim Form, and Hearing Request
Form, to the extent such information is contained in DHS
records;
(b)

The return address on the envelopes shall indicate the

notice was sent from the Michigan Department of Human
Services, and the front of the envelope shall contain the
statement,

“IMPORTANT

NOTICE

ABOUT

DHS

BENEFITS” in bold, capital letters;
(c)

DHS shall send the Notice, Claim Form, and Hearing

Request Form in Spanish to any class member on record
with DHS as being Spanish-speaking or who later comes to
defendant’s attention as needing information in Spanish;
(d)

DHS shall send the Notice, Claim Form, and Hearing

Request Form in Arabic to any class member on record with
DHS as being Arabic-speaking or who later comes to
defendant’s attention as needing information in Arabic;

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(3)

For any notices sent under (1) above that are returned as

undeliverable, defendant shall use a people locator service to find
the current address for the relevant class member, and shall resend the notice with the new mailing date and new deadline date
to the corrected address within 21 days of receiving the returned
notice;
(4)

Within 28 days of entry of this Order, defendant shall print

and distribute 24 inch by 36 inch copies of the Notice Poster (Dkt.
98-5).

Defendant shall distribute a number of posters to each

DHS office sufficient to ensure that one poster will be posted in
each lobby, reception, and waiting area, along with directions that
these posters must be prominently displayed in all lobby,
reception, and waiting areas. DHS shall post the notice on its
website at a location to be agreed upon by the parties, which
location will be available via links on locations to be agreed upon
by the parties. DHS shall also provide at least one poster to all
legal services offices in Michigan listed in Dkt. 98-6, and at least
one poster to each Community Action Agency in Michigan and to
each Michigan Works! Agency office, with a request that these
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posters be prominently displayed until at least 180 days after
entry of this Order. DHS shall also provide up to 500 posters to
not-for-profit, community-based organizations or human services
providers that request them by emailing DHS at an email address
to be determined, or by calling DHS at a phone number to be
determined, on a first-come, first-served basis;
(5)

Food Assistance Program (FAP) benefits due on or after

January 1, 2013 shall be restored to class members under 7 U.S.C.
§ 2023(b).

The Court will postpone determination of how

defendant will restore FAP benefits (see Dkt. 98, pp. 6-12 and Dkt.
102, pp. 10-13) until discussions between DHS and the U.S.
Department of Agriculture Food and Nutrition Service regarding a
streamlined process for restoration of FAP benefits have
concluded, or until notified by the parties that further action from
the Court is necessary;
(6)

Defendant shall compile and provide to plaintiffs’ attorneys

a searchable and sortable spreadsheet or data file (such as an
Excel or Access file) that contains for all class members the
information specified below;
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(a)

Within 21 days of entry of this Order, defendant shall

provide a spreadsheet or data file that contains, for each
class member, the information listed in numbers 1-6 below;
(b)

Within 42 days of entry of this Order, defendant shall

provide an updated spreadsheet or data file that contains,
for each class member, the information listed in numbers 112 below.

The information in numbers 7-12 shall be

provided to the extent that defendant has that information;
(c)

Every 14 days thereafter, defendant shall provide an

updated spreadsheet or data file that contains, for each class
member, the information listed in numbers 1-12 below;
(d)

Defendant shall continue to provide such updates until

12 months have elapsed from the date of provision of the
first spreadsheet or data file, per (6)(a) above. After the 12
months have elapsed, if the spreadsheet or data file shows
that there are pending applications, claims, or hearing
requests, defendant shall continue to provide the biweekly

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updates in (6)(c) until all pending applications, claims, or
hearing requests have been resolved;
(e)

Updates

shall

consist

of

a

completely

updated

spreadsheet or data file;
(f)

The spreadsheet or data file shall contain, for each

class member, the following information:
All class members:
1.

Name;

2.

Last address known to DHS;

3.

Case number;

4.

The date the criminal justice disqualification

notice was sent to the class member, both initially and,
if returned, when re-mailed;
5.

The type of benefits (FAP, FIP, CDC, SDA, or

RAP) affected by the denial, termination, or reduction
of benefits, and, for each type of benefit affected,
whether it was denied, terminated, or reduced, and the
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effective date(s) of the termination, denial, or reduction
of benefits;
6.

The date, if any, on which the class member

requested

a

hearing

regarding

benefits

denied,

reduced, or terminated because of a criminal justice
disqualification, as well as the disposition of the
hearing request or that it is pending;
7.

The date, if any, on which the class member

applied for benefits after DHS sent the class member a
Notice of Decision (Dkt. 107-1),
a.

Which benefits (FIP, FAP, CDC, SDA, RAP)

the class member applied for, and whether the
application is still pending,
b.

If approved, the monthly benefit amount

approved,
c.

If denied, the reason for the denial;

Subclass members

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8.

Contingent

on

the

outcome

of

discussions

between DHS and the U.S. Department of Agriculture
Food

and

Nutrition

Service,

whether

DHS

has

classified the class member as being in Group 1, Group
2, or Group 3, or as not a member of those groups (See
Dkt. 98, pp. 6-12);
9.

The date(s), if any, of all applications for FAP

submitted

by

the

class

member

or

household

subsequent to the criminal justice disqualification,
other than those disclosed in number 7 above, and
whether the application(s) was approved, denied, or is
still pending,
a.

If approved, the monthly FAP allotment for

the

first

full

month

for

which

FAP

was

prospectively approved for the class member and
his / her household after the criminal justice
disqualification notice,
b.

If denied, the reason for denial;

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10.

The date, if any, on which the class member

submitted a Claim Form;
11.

Whether the class member or class member’s

household received a FAP supplement (restored back
benefits) for benefits denied, terminated, or reduced
based on a criminal justice disqualification,
a.

The total amount of the FAP supplement /
back benefits,

b.

The months for which the FAP supplement /
back benefits were approved,

c.

For any class member for whom benefits are
not restored, the specific problem that
prevented

restoration

of

benefits

(e.g.,

income, assets, residence, verification, work
sanction, not in Groups 1, 2, or 3, etc.),
d.

Whether the class member filed a Hearing

Request in response to notice regarding the
denial or amount of the FAP supplement, and the
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disposition

of

any

such

hearing

request.

Disposition means whether the request was
dismissed without a hearing, the appeal was
settled without a hearing, defendant’s decision
was reversed by a decision and order, or
defendant’s decision was affirmed by a decision
and order;
12.

The number of notices mailed out under (2) above

that are returned as undeliverable, the number of
individuals not located under (3) above, and the
number of notices returned after remailing under (3)
above;
(7)

For the period defined in (6)(d) above, defendant shall

provide the Court and plaintiffs with monthly written reports
detailing DHS’ progress in implementing the Court’s January 9,
2015 Order.
IT SO ORDERED.
Dated: March 31, 2015

s/Judith E. Levy
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Ann Arbor, Michigan

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 31, 2015.

s/Felicia M. Moses
FELICIA M. MOSES
Case Manager

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