source: Caselaw Access Project

author: CLAY, J., CLAY, Circuit Judge. SILER, Circuit Judge,

license: Public Domain

text:
    A. PHILIP RANDOLPH INSTITUTE; Northeast Ohio Coalition for the Homeless; Larry Harmon, Plaintiffs-Appellants, v. Jon HUSTED, Secretary of State, Defendant-Appellee.
    No. 16-3746
    United States Court of Appeals, Sixth Circuit.
    Argued: July 27, 2016
    Decided and Filed: September 23, 2016

      ARGUED: Stuart C. Naifeh, DEMOS, New York, New York, for Appellants. Michael J. Hendershot, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Stuart C. Naifeh, Naila Awan, DÉMOS, New York, New York, Freda J. Levenson, Elizabeth Bonham, ACLU OF OHIO, Cleveland, Ohio, Richard Saphire, UNIVERSITY OF DAYTON SCHOOL OF LAW, Dayton, Ohio, Paul Moke, WILMINGTON COLLEGE, Wilmington, Ohio, for Appellants. Michael J. Hendershot, Eric E. Murphy, Steven T. Voigt, Jordan S. Berman, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee. Tovah R. Calderon, Vikram Swaruup, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Emmet J. Bondurant, BONDURANT MIXSON & ELMORE LLP, Atlanta, Georgia, Michelle E. Kanter Cohen, PROJECT VOTE, INC., Washington, D.C., Lauren M. Burke, JUDICIAL WATCH, INC., Washington, D.C., for Amici Curiae.
    Before: SILER, CLAY, and GIBBONS, Circuit Judges.
   CLAY, J.,

delivered the opinion of the court

in which GIBBONS, J., joined, and SILER, J., joined in part. SILER, J. (pp. 715-17), delivered a separate opinion concurring in part and dissenting in part.

OPINION

CLAY, Circuit Judge.

The A. Philip Randolph Institute (“APRI”), the Northeast Ohio Coalition for the Homeless (“NEOCH”), and Larry Harmon (collectively “Plaintiffs”) filed suit seeking to enjoin the defendant, Ohio Secretary of State Jon Husted (“the Secretary”), from removing the names of registered voters from Ohio’s voter rolls pursuant to the state’s so-called Supplemental Process, which Plaintiffs allege violates the National Voter Registration Act of 1993 (“NVRA”), 52 U.S.C. § 20501 et seq., and the Help America Vote Act of 2002 (“HAVA”),. 52 U.S.C. § 20901 et seq. Plaintiffs also sought an injunction requiring the Secretary either to reinstate otherwise eligible voters who were improperly removed from the rolls pursuant to the Supplemental Process, or to count provisional ballots cast by such persons. Finally, Plaintiffs alleged that the change-of-address confirmation notices mailed to voters as part of the Supplemental Process fail to meet the standards for such notices set out in the NVRA, 52 U.S.C. § 20507(d)(2). Before us is Plaintiffs’ appeal from the district court’s order denying Plaintiffs’ request for a permanent injunction and directing entry of judgment in favor of the Secretary. For the reasons set forth below, we REVERSE the district court’s judgment and REMAND for further proceedings consistent with this opinion.

BACKGROUND

Factual History

In .addition to maintaining procedures for removing the names of the deceased, those who have been adjudicated incompetent, and convicted felons from its voter rolls, see Ohio Rev. Code § 3503.18(A)-(C), Ohio utilizes two processes for identifying and purging from the rolls voters who are no longer eligible to vote because they have moved outside their county of registration. See Ohio Rev. Code § 3503.21. The first is Ohio’s “NCOA Process,” under which the Secretary’s office compares the names and addresses contained in Ohio’s Statewide Voter Registration Database to the National Change of Address (“NCOA”) database. “The NCOA database contains names and addresses of individuals who have filed changes of address with the United States Postal Service.” (R. 38-2, Damschroder Deck, ¶ 11.) The Secretary thereafter provides each county’s Board of Elections (“BOE”) with a list of voters registered therein who appear to have moved, based on the comparison of the two databases. The BOEs then “send[ ] a confirmation notice ... to each individual identified.” (Id.) That notice is a postage prepaid forwardable form on which- the voter must indicate whether he or she still lives at the same address. Recipients of the notice are removed from the rolls if they: (1) do not respond to the confirmation notice or update their registration; and (2) do not subsequently vote during a period of four consecutive years that includes two federal elections. See Ohio Rev. Code § 3503.21(A)(7), (B).

Ohio’s so-called “Supplemental Process” is the second method the state uses for identifying and removing from the rolls voters who are no longer eligible to vote due to a change of residence. The Supplemental Process is largely identical to the NCOA Process, except in the way it begins: rather than identifying voters who may have moved by reference to, the NCOA database, each county’s BOE compiles a list of registered voters who have not engaged in any “voter activity” for two years. For the purposes of the Supplemental Process, “voter activity” includes “filing a change of address” .with a designated state agency; “filing a voter registration card with the [BOE]; ... casting an absentee ballot; casting a provisional ballot; [or] voting on election day.” (R. 42-1, Dam-schroder Dep., PagelD 1548-49.) After compiling a list of inactive voters, each BOE sends a confirmation notice to those on its list. As with the NCOA Process, voters sent a confirmation notice are removed from the rolls if they subsequently fail to vote for four years and fail to either respond to the notice or re-register. In sum, under the Supplemental Process, a voter is purged from the rolls after six years of inactivity—even if he or she did not. move and otherwise remains eligible to vote.

When this litigation began, the confirmation notices sent to voters pursuant to both the NCOA Process and Supplemental Process required that voters provide their name, current Ohio address, date of birth, and either their Ohio driver’s license number, their Social' Security number, or ■ a copy of a document verifying their identity and address. The notices required that voters provide such information regardless of whether they had changed address or were merely confirming that they still lived at the same address. Moreover, the notices did not adequately inform voters of the consequences of failing -to respond to the notice; rather, the form indicated that the recipient’s registration “may” be canceled if he' or she did not respond, re-register, or vote in the next four years. (R. 42-13, 2015 Conf. Notice Form, PagelD 1702.) Finally, the form failed to inform voters who had moved outside of Ohio on how they could remain eligible to vote in their new state.

As discussed below, the Secretary issued a new confirmation notice form during the pendency of this litigation. On the newly issued form, voters can confirm that they have not changed address by simply signing, dating, and returning the postage prepaid form. The new form also provides voters with, the dates by which they must either return the form or vote in order to remain registered. Notably, however, the new form still lacks information on how persons who have moved to another state can register to vote in their new state.

Procedural History

This case began with two letters sent by NEOCH and APRI to the Secretary in December 2015 and February 2016, respectively. Both letters asserted that Ohio’s Supplemental Process violated Section 8 of the NVRA. Not long after sending their letters, APRI and NEOCH representatives began meeting with the Secretary in an attempt to resolve their concerns without litigation. Those meetings failed to produce results, causing Plaintiffs to file this suit in federal dis-: trict court on April 6, 2016. Plaintiffs’ complaint alleged two causes of action relevant to this appeal: first, that the Supplemental Process unlawfully removes registered voters from the rolls due to their failure to vote in -violation of Section 8, subsection (b)(2) of the NVRA, 52 U.S.C. § 20507(b)(2); and second, that the confirmation notices sent to voters under both the NCOA Process and the Supplemental Process fail to meet the standards for such forms set out in the NVRA, 52 U.S.C. § 20507(d)(2).

The day after filing their complaint, Plaintiffs moved for a temporary restraining order (“TRO”) prohibiting the Secretary from “removing eligible Ohio' voters from the voter rolls on account of their failure to vote pursuant to Ohio’s ‘Supplemental Process.’” (R. 9, Mot. for TRO, PagelD 36.) Plaintiffs’ motion also requested a preliminary injunction compelling' the Secretary to reinstate voters already removed from the rolls pursuant to the Supplemental Process. Four days later, Plaintiffs agreed to withdraw their request for a TRO in exchange for the Secretary’s agreement not to initiate the Supplemental Process prior to July 1, 2016. A week after Plaintiffs filed their complaint, the parties agreed to engage in limited discovery and to address all the dispositive issues in the case through simultaneous briefing. The parties filed their briefs in May and June of 2016, with Plaintiffs styling their briefs as memoranda supporting motions for summary judgment and a preliminary injunction. On June 17, 2016—the day the parties’ final briefs were due before the district court—the Secretary issued a directive requiring BOEs to use a new version of the confirmation notice form. As discussed above, that new form corrected all but one of Plaintiffs’ alleged deficiencies.

On June 29, 2016, the district court issued an order denying Plaintiffs’ motions for summary judgment and a preliminary injunction; the order directed entry of judgment in favor of the Secretary. Addressing the parties’ arguments under permanent injunction standards, the court began by rejecting Plaintiffs’ arguments that the Supplemental Process violates the NVRA and the HAVA. The court held that because Section 8 of the NVRA does not explicitly dictate what information states may or must use as a “trigger” for sending a confirmation notice, that decision was impliedly left to the states. The court also concluded that the Supplemental Process does not violate the NVRA and the HAVA’s prohibition on removing voters from the rolls solely by reason of their failure to vote because such removal occurs only after a voter has failed to vote and ■ failed to respond to a confirmation notice.

Turning to the Plaintiffs’ arguments regarding the legality of Ohio’s confirmation notice form, the district court first noted the Secretary’s promise that his newly issued form would be used during the upcoming voter roll purges; Relying on that promise, the court held that the Secretary’s voluntary cessation of illegal activity was sufficient to moot Plaintiffs’ challenges to the confirmation notice form. Finally, the court rejected Plaintiffs’ argument that the newly issued form still violated 52 U.S.C. § 20507(d)(2)(B) by failing to provide those who have moved out of Ohio with information on how to stay registered. The court held that this argument was waived because Plaintiffs’ briefing failed to raise the argument, and that the argument failed on the merits in any event because it “defies logic” that the NVRA would require local registrars to “coach” voters on how to register in a different state. (R. 66, Order, PagelD 23025.) Thus having rejected all of Plaintiffs’ arguments on the merits, the district court held that no preliminary injunction was warranted .and that judgment should be entered for the Secretary. Plaintiffs filed their notice of appeal the following day.

DISCUSSION

Standard of Review

The parties agree that there are no disputes regarding the facts recounted above, and that the district court’s denial of Plaintiffs’ request for an injunction was based solely on its interpretation of the NVRA and the HAVA. “When reviewing the decision of a district court to grant or to deny a request for issuance of a permanent injunction, ... legal conclusions are reviewed de novo,” Sec’y of Labor, U.S. Dep’t of Labor v. 3Re.com, Inc., 317 F.3d 534, 537 (6th Cir, 2003) (internal quotation marks omitted); see also Communities for Equity v. Mich. High Sch. Athletic Ass’n, 459 F.3d 676, 680 (6th Cir. 2006) (“[Statutory interpretation questions are issues of law, which we review de novo.”). We also review de novo the district court’s conclusion that some of Plaintiffs’ claims are now moot, Cleveland Branch, N.A.A.C.P. v. City of Parma, 263 F.3d 513, 530 (6th Cir. 2001).

Analysis

I. Plaintiffs’ Challenge to Ohio’s Supplemental Process

Congress’ stated purposes in’ enacting the NVRA were, inter alia, “to establish procedures that will increase the number of eligible citizens who register to vote in elections for Federal office; ... [and] to ensure that accurate and current voter registration rolls are maintained.” 52 U.S.C. § 20501(b). “These purposes coun-terpose two general, sometimes conflicting, mandates: To expand and simplify voter registration processes so that more individuals register and participate in federal elections, while simultaneously ensuring that voter lists include only eligible ... voters.” Common Cause of Colo. v. Buescher, 750 F.Supp.2d 1259, 1274 (D. Colo. 2010). Those sometimes conflicting mandates are reflected in the language of Section 8 of the NVRA, 52 U.S.C. § 20507, which is where our analysis must begin. See Lewis v. United States, 445 U.S. 55, 60, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980) (“[I]n any case concerning -the interpretation of a statute the ‘starting point’ must be the language of the statute itself.”). Importantly, Section 8’s language pairs the mandate that states maintain accurate voter rolls with multiple constraints on how the states may go about doing so.

Those constraints begin with subsection (a) of Section 8, which states that “[i]n the administration of voter registration for elections for Federal office, each State shall ... provide that the name of a registrant may not be removed from the official list of eligible voters except” under certain circumstances. 52 U.S.C. § 20507(a)(3) (emphasis added); see also S. Rep. No. 103-6, at 19 (1993) (“[0]ne of the guiding principles of [the NVRA is] to ensure that once registered, a voter remains on the rolls so long as he or she is eligible to vote in that jurisdiction.”); H.R. Rep. No. 103-9, at 18 (1993). The Act then provides an exhaustive- list of circumstances justifying removal: “criminal conviction or mental incapacity as provided by state law, the death of the registrant, or ... a change of the registrant’s residence.”. U.S. Student Ass’n Found. v. Land, 546 F.3d 373, 376 (6th Cir. 2008) (citing 42 U.S.C. § 1973gg-6(a)(3)-(4), now codified as . 52 U.S.C. § 20507(a)(3)-(4)). This case concerns the final circumstance justifying removal— change of residence—which is subject to its own mandate and accompanying constraints. Subsection (a)(4) of Section 8 requires that states “conduct a general program that makes a reasonable effort to remove the names of ineligible voters from the official lists of eligible voters by reason of ... a change in the residence of the registrant;” the Act thereafter specifies that any such program must be conducted “in accordance with subsections (b), (c), and (d).” 52 U.S.C. § 20507(a)(4)(B).

Subsection (b) provides two additional constraints on states’ discretion. First, all roll maintenance procedures must “be uniform, nondiscriminatory, and in compliance with the Voting Rights Act of 1965 (42 U.S.C. 1973 et seq.).” Id. § 20507(b)(1). Second, and more pertinent to this appeal, subsection (b)(2) provides that roll maintenance procedures “shall not result in the removal of the name of any person from the official list of voters registered to vote in an election for Federal office by reason of the person’s failure to vote.” Id. § 20507(b)(2). This language from subsection (b)(2) was later modified by the HAVA, which appended the following clause to the general prohibition on removal by reason of failure to vote:

... except that nothing in this paragraph may be construed to prohibit a State from using the procedures described in subsections (c) and (d) to remove an individual from the official list of eligible voters if the individual—
(A) has not either notified the applicable registrar (in person or in writing) or responded during the period described in subparagraph (B) to the notice sent by the applicable registrar; and then
(B) has not voted or appeared to vote in 2 or more consecutive general elections for Federal office.

Id. By the HAVA’s own terms, however, this language is not to “be construed to authorize or require conduct prohibited under. ... or to supersede, restrict, or limit the application of ... [the NVRA].” Id. § 21145(a); see also H.R. Rep. 107-329, at 37 (2001) (indicating that under the HAVA, “removal of those deemed ineligible must be done in a manner consistent with the [NVRA]. The procedures established by NVRA that guard against removal of eligible registrants remain in effect under this law. Accordingly, [the HAVA] leaves NVRA intact, and does not undermine it in any way.”).

Subsections (c) and (d) of Section 8 provide two final constraints on states’ roll maintenance procedures. First, subsection (c)(2)(A) provides that “any program the purpose of which is to systematically remove the names of ineligible voters from the official list of eligible voters” must be completed “not later than 90 days prior to the date of a primary or general election for Federal office.” 52 U.S.C. § 20507(c)(2)(A). Second, subsection (d)(1) establishes that states “shall not remove the name of a registrant from the official list of eligible voters in elections for Federal office on the ground that the registrant has changed residence” without first subjecting the registrant to the confirmation notice procedure outlined in that subsection. Id. § 20507(d)(1) (emphasis added). That mandatory confirmation notice procedure is the one described above as the final step of Ohio’s NCOA Process and Supplemental Process: a forwardable postage prepaid and pre-addressed form is sent to a voter, and the voter is removed from the rolls if (1) he or she does not respond to the confirmation notice or update his or her registration, and (2) he or she does not subsequently vote during a period of four consecutive years that includes two federal elections. See id.' § 20507(d).

Finally, we note that in subsection (c)(1) of Section 8, Congress provided states with an example of a procedure for identifying and removing voters who had changed residence that would comply with the NVRA’s mandates and accompanying constraints. That subsection provides that “[a] State may meet the requirement of subsection (a)(4) by establishing a program under which” voters who appear to have moved based on information contained in the NCOA database are sent subsection (d) confirmation notices. See id. § 20507(d)(1) (emphasis added). The parties do not dispute that Ohio’s NCOA Process mirrors this so-called “safe-harbor” procedure and that the NCOA Process is thus permissible under the NVRA.

The focus of this case, therefore, is Ohio’s Supplemental Process. Specifically, Plaintiffs, argue that the Supplemental Process violates the clause of subsection (b)(2)—hereinafter referred to as the “prohibition clause”—prohibiting roll maintenance processes that “result in the removal of the name of any person from the official list of voters registered to vote in an election.for Federal office by reason of the person’s failure to vote.” Id. § 20507(b)(2). The Secretary responds that the Supplemental Process is permitted by the exception to subsection (b)(2)’s prohibition clause added by the HAVA—hereinaf-ter referred to as the “except clause”— which states: “... except that nothing' in this paragraph may be construed to prohibit a State from using the procedures described in subsections (c) and (d).” Id. The legality of Ohio’s Supplemental Process can therefore be boiled down to two questions: whether the Process is expressly permitted by subsection (b)(2)’s except clause; and, if not, whether the Supplemental Process violates that subsection’s prohibition clause.

A. The Supplemental Process is not expressly permitted by subsection (b)(2)’s except clause

Turning to the first operative question, it bears repeating that the Supplemental Process fully incorporates subsection (d)’s confirmation notice procedure. Certainly, under the except clause’s plain language, such incorporation is permissible even though the confirmation notice procedure itself involves consideration of a registrant’s failure to vote. See id. § 20507(b)(2) and (d)(l)(B)(ii). But that conclusion does not end our inquiry—the Supplemental Process does not only employ subsection (d)’s confirmation notice procedure. Rather, under the Supplemental Process, the confirmation notice procedure is “triggered” by a registrant’s failure to engage in any “voter activity” for two years. We must therefore determine whether that trigger provision should be analyzed separately from the confirmation notice procedure, such that the trigger-is subject to the prohibition clause; "or, in the alternative, whether the Supplemental Process’ incorporation of the confirmation notice procedure means that-the entire Process—including the trigger—is permitted under the except clause.

The Secretary advocates for the second of these two positions. He states, for example, that “[t]he language that a cancellation ‘shall not result’ from a ‘failure to vote’ ‘except’ when coupled with the failure to ‘respondí ]’ to an address-confirmation inquiry authorizes the Ohio Supplemental Process.” (Def.’s Br. at 27 (emphasis omitted); see also id. at 41.) The operative language in this argument is the phrase “when coupled with,” by which the Secretary implies that a process resulting in removal by reason of failure to vote is nevertheless permitted by the except clause so long as it is “coupled with” the procedures outlined in subsection (d). We note, however, that neither the phrase “when coupled with,” nor any comparable language, appears in the except clause’s text. See 52 U.S.C. § 20507(b)(2). The Secretary’s argument is therefore flawed insofar as it requires us to “read[] a phrase into the statute when Congress has left it out.” Keene Corp. v. United States, 508 U.S. 200, 208, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993).

Moreover, the Secretary’s reading of the except clause would require us to ignore the traditional rule of statutory construction dictating that exceptions to a statute’s general rules be construed narrowly. Comm’r of Internal Revenue v. Clark, 489 U.S. 726, 739, 109 S.Ct. 1455, 103 L.Ed.2d 753 (1989) (“In construing [statutes] in which a general statement of policy is qualified by an exception, we usually read- the exception narrowly in order to preserve the primary operation of the provision.”); Detroit Edison Co. v. Sec. & Exch. Comm’n, 119 F.2d 730, 739 (6th Cir. 1941) (“Provisos and exceptions in statutes must be strictly construed and limited to objects fairly within their terms, since they are intended to restrain or except that which would otherwise be within the scope of the general language.”); see also 2A Norman J. Singer, Statutes and Statutory Construction § 47:11, at 246-47 (6th ed. 2000) (“Subsidiary clauses which limit the generality of a rule are narrowly construed, as they . are considered exceptions.”). Contrary to that general rule, the Secretary would have us adopt an expansive interpretation of the except clause under which states can not only “us[e] the procedures described in subsections (c) and (d),” 52 U.S.C. § 20507(b)(2); rather, under the Secretary’s interpretation, use of those procedures would render states’ processes completely immune to the general rule that the except clause modifies. We decline to adopt this interpretation, and instead err on the side of giving maximum effect to the prohibition clause’s general rule. See, e.g., Singer, supra, § 47:11, at 250-51 (“[W]here a general provision in a statute has certain limited exceptions, all doubts should be resolved in favor of the general provision rather than the exceptions.”).

Further counseling against the Secretary’s interpretation is the fact that reading “when coupled with” into the except clause would reduce the prohibition clause to mere surplusage. That is because the plain language of subsection (d)(1) provides that processes for removing voters based on change in residence must incorporate subsection (d)’s confirmation notice procedure. See 52 U.S.C. § 20507(d)(1). In other words, it is required that such processes be “coupled with” subsection (d)’s procedure. Thus, under the Secretary’s interpretation, subsection (b)(2)’s prohibition clause would serve no purpose because all state procedures would necessarily be permitted by the except clause by virtue of their (mandatory) incorporation of the confirmation notice procedure. This reading of the NVRA would contravene the Supreme Court’s repeated insistence that “a statute should be construed so that effect is given to all its provisions, só that no part will be inoperative or superfluous.” Clark v. Rameker, — U.S. -, 134 S.Ct. 2242, 2248, 189 L.Ed.2d 157 (2014) (quoting Corley v. United States, 556 U.S. 303, 314, 129 S.Ct. 1558, 173 L.Ed.2d 443 (2009)).

The Secretary responds that his interpretation does not reduce the prohibition clause to surplusage because when read together, the prohibition and except clauses constitute a single “belt-and-suspenders” rule that merely “explains what is permitted and what is prohibited by describing both sides of the same coin.” (Def.’s Br. at 49 (citing TMW Enter., Inc. v. Fed. Ins. Co., 619 F.3d 574, 577 (6th Cir. 2010)).) In other words, the Secrétary would have us hold that subsection (b)(2) only prohibits processes that do not incorporate the confirmation notice procedure, and that the except clause simply reinforces that prohibition by expressly “permitting]” use of the confirmation notice and safe-harbor procedures. (Id.) But this argument once again ignores the fact that subsection (d)(1) already mandates that “[a] State shall not remove the name of a registrant from the'official list of voters” without performing the confirmation notice procedure. 52 U.S.C. § 20507(d)(1) (emphasis added). We decline to read subsection (b)(2) as a mere reiteration of that mandate. Perhaps more importantly, we find that the Secretary’s “belt-and-suspenders” argument ignores the NVRA’s plain language: subsection (b)(2)’s clauses are not writtén as alternative presentations of the same rule; rather, those clauses explicitly establish a general rule with a proviso. See id. § 20507(b)(2).

The Secretary also argues that the Senate and House reports accompanying the NVRA justify his interpretation of the except clause. Those reports both state, in pertinent part:

Almost all states now employ some procedure for updating lists at least once every two years, though practices may vary somewhat from county to county. About one-fifth of the states canvass all voters on the list. The rest of the states do not contact all voters, but instead target only those who did not vote in the most recent election (using not voting as an indication that an individual might have moved). Of these, only a handful of states simply drop the non-voters from the list without notice. These states could not continue this practice under [the NVRA].

S. Rep. No. 103-6, at 46 (1993); H.R. Rep. No. 103-9, at 30 (1993). This passage in the reports, the Secretary argues, suggests that subsection (b)(2)’s prohibition is intended to invalidate only those state processes that “simply drop the non-voters from the list without notice.” Id. Thus, the argument goes, the reports indicate that the except clause permits any process that incorporates subsection (d)’s confirmation notice procedure.

This argument is problematic for at least two reasons. First, we may only look to the legislative history of a statute to “explain the meaning and purpose of a provision whose text is genuinely ambiguous.” Sherfel v. Newson, 768 F.3d 561, 569 (6th Cir. 2014). As discussed above, the unambiguous language of Section 8 requires rejecting the Secretary’s interpretation, lest we be forced to simultaneously write new language into, and essentially excise language out, of, the NVRA. But even if we did conclude that the NVRA’s language is ambiguous, we would find little solace in the even more ambiguous language of the congressional reports on which the Secretary relies. Cf. Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005) (“[Legislative history is itself often murky, ambiguous, and contradictory.”). Not only is the above-quoted passage from the congressional reports internally unclear as to which of the practices described therein is prohibited under the NVRA, the passage does not purport to provide an exhaustive list of processes that subsection (b)(2) was designed to prohibit. See H.R. Rep. No. 103-9, át 30 (1993); S. Rep. No. 103-6, at 46 (1993).

Based on the above, we reject the Secretary’s contention that the Supplemental Process’ incorporation of subsection (d)’s confirmation notice procedure means that the entire Supplemental Process is automatically permitted under the except clause. That interpretation of the NVRA would require us to improperly- ignore “the language and design of the statute as a whole.” Nail Air Traffic- Controllers Ass’n v. Sec’y of Dep’t of Transp., 654 F.3d 654, 657 (6th Cir. 2011) (quoting United States v. Parrett, 530 F.3d 422, 429 (6th Cir. 2008)). We further conclude that the only reasonable reading of the NVRA is that any part of a state’s roll maintenance process that does not mimic the expressly permitted procedures outlined in subsections (c) or (d)—in this case, the Supplemental Process’ two-year “trigger” provision—is subject to subsection (b)(2)’s prohibition clause.

B. The Supplemental Process violates subsection (b)(2)’s prohibition clause

Having concluded that we must focus our analysis on the Supplemental Process’ two-year trigger provision, we turn to the second dispositive question in this case: whether that trigger provision “result[s]” in removal by reason of failure to vote. 52 U.S.C. § 20507(b)(2) (emphasis added). We typically “proceed from the understanding that unless otherwise defined, statutory terms are generally interpreted in accordance with their ordinary meaning.” Sebelius v. Cloer, - U.S. -, 133 S.Ct. 1886, 1893, 185 L.Ed.2d 1003 (2013) (internal brackets and quotation marks omitted) (quoting BP Am. Prod. Co. v. Burton, 549 U.S. 84, 91, 127 S.Ct. 638, 166 L.Ed.2d 494 (2006)). “Webster’s dictionary defines ‘result’ as ‘to proceed or arise as a consequence, effect, or conclusion.’” Pension Trust Fund for Operating Eng’rs v. Fed. Ins. Co., 307 F.3d 944, 952 (9th Cir. 2002). In this case, the Supplemental Process’ trigger provision explicitly uses a person’s failure to engage in any “voter activity”—which includes voting—for two years as the “trigger” for sending a confirmation notice. Under the ordinary meaning of “result,” the Supplemental Process would violate the prohibition clause because removal of a voter “proceed[s] or arise[s] as a consequence” of his or her failure to vote. Id.

As noted by the Secretary and the district court, however, subsection (b)(2)’s prohibition clause appears to have been given a more narrow interpretation by the HAVA. Passed in 2002, the HAVA created an “independent ... requirement [that states] maintain an accurate list of eligible voters.” Colón-Matrero v. Vélez, 813 F.3d 1, 13 (1st Cir. 2016). In connection with that requirement, the HAVA requires states to implement

[a] system of file maintenance that makes a reasonable effort to remove registrants who are ineligible to vote from the official list of eligible voters. Under such system, consistent with the National Voter Registration Act of 1993 ([52 U.S.C. § 20501] et seq.), registrants who have not responded to a notice and who have not voted in 2 consecutive general elections for Federal office shall be removed from the official list of eligible voters, except that no registrant may be removed solely by reason of a failure to vote.

52 U.S.C. § 21083(a)(4)(A) (emphasis added). This section of the HAVA, the Secretary argues, restates the NVRA’s prohibition and except clauses “in slightly different words” (Def.’s Br. at 32), and in so doing suggests that subsection (b)(2)’s prohibition on consideration of failure to vote only operates to prohibit state processes that remove registrants from the rolls “soleljf’ by reason of their failure to vote.

In the end, however, this language from the HAVA does not change our analysis because operation of the Supplemental Process’ trigger is ultimately based “solely” on a person’s failure to vote. This is so, notwithstanding the fact that the Supplemental Process includes voting as one of several types of “voter activity” in which a voter must fail to engage in order to trigger the sending of a confirmation notice. We must assume not only that Congress intended the prohibition clause to play some role in the NVRA’s statutory scheme, see Clark, 134 S.Ct. at 2248, but also that Congress intended the prohibition to be more than a paper tiger. But the clause would have no teeth at all if states could circumvent it by simply including “voting” in a disjunctive list of activities in which, a registrant must fail to engage in order to “trigger” the confirmation notice procedure. In more concrete terms, a state cannot avoid the conclusion that its process results in removal “solely by reason of a failure to vote,” 52 U.S.C. § 21083(a)(4), by providing that the confirmation notice procedure is triggered by a registrant’s failure either to vote or to climb Mt. Everest or to hit a hole-in-one.

For his part, the Secretary reiterates that the Supplemental Process incorporates subsection (d)’s requirement that the voter must fail to respond' to a confirmation notice before that voter can be removed from the rolls. He thereafter argues that the Process’ incorporation of that failure-to-respond requirement insures that voters are never removed “solely” for failure to vote. But this argument merely rehashes the one we rejected above—that a state’s process for identifying and removing voters who have changed residence comports with subsection (b)(2)’s prohibition clause so long as it incorporates subsection (d)’s confirmation notice procedure. This interpretation of the NVRA would render the prohibition clause entirely superfluous because subsection (d)(1) already requires states to use the confirmation notice procedure. See ' 52 U.S.C. § 20507(d)(1). Once again, we decline “to adopt an interpretation of a congressional enactment which renders superfluous .another portion of that same law.” United States v. Jicarilla Apache Nation, 564 U.S. 162, 185, 131 S.Ct. 2313, 180 L.Ed.2d 187 (2011).

Finally, we note that the parties’ arguments and the district court’s order raise two additional questions: (1) whether processes for identifying and removing from the rolls voters who have changed residence must have provisions that “trigger” subsection (d)’s confirmation notice procedure; and (2) what the- NVRA and the HAVA have to say, if anything, about the form such “triggers” can or cannot take. While these questions are undoubtedly important, we need not answer them in- order to hold that Ohio’s Supplemental Process is impermissible under the NVRA. Regardless of whether “trigger” provisions are required, and regardless of what forms such “triggers” can or cannot take, it is clear that the Supplemental Process does include a trigger, and that that trigger constitutes perhaps the plainest possible example of a process that “resultfs] in” removal of a voter from the rolls by reason of his or her failure to vote. 52 U.S.C, § 20507(d)(2). We therefore hold that Ohio’s Supplemental Process violates Section 8, subsection (b)(2) of the NVRA.

II, Plaintiffs’ Challenge to Ohio’s Confirmation Notice Form

Below, the district court held: (1) that Plaintiffs’ challenges to Ohio’s confirmation notice form were mooted by the Secretary’s adoption of a new form that addressed all but one of Plaintiffs’ concerns; and (2) that Plaintiffs’ remaining challenge to the form—that it fails to provide out-of-state voters with information on how to remain registered—is not supported by Section 8’s statutory language. We address these holdings in turn.

A. Mootness

Claims become moot “when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome,” Cty. of Los Angeles v. Davis, 440 U.S, 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1978) (quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969)). Generally, “voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, ie., does not make the case moot.” Id. (quoting United States v. W. T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 97 L.Ed. 1303 (1953)). However, a narrow exception to that general rule exists in cases where a defendant claiming that its voluntary compliance moots a case successfully carries “the formidable burden, of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Envtl, Seros. (TOC), Inc., 528 U.S. 167, 190, 120 S.Ct. 693, 145 L.Edüd 610 (2000); see also Davis, 440 U.S. at 63Í, 99 S.Ct. 1379 (holding that voluntary cessation can render an issue moot if “there is no reasonable expectation ... that the alleged violation will recur” (citation and internal quotation marks omitted)). We have stated that it is a “rare instance” in which this standard will be met. League of Women Voters of Ohio v. Brunner, 548 F.3d 463, 473 (6th Cir. 2008).

The Secretary argues that because he is a governmental actor, we should defer to his assurances that his recent changes to the confirmation notice form are permanent. Although it is true that “cessation of the allegedly illegal conduct by government officials has been treated with more solicitude by the courts than similar action by private parties,” Mosley v. Hairston, 920 F 2d 409, 415 (6th Cir. 1990) (quoting Ragsdale v. Turnock, 841 F.2d 1358, 1365 (7th Cir. 1988)),. such -solicitude does, not carry much of an official’s burden of demonstrating that “there is no reasonable expectation ... that the alleged violation will recur,” Davis, 440 U.S. at 631, 99 S.Ct. 1379. Indeed, the Supreme Court has declined to defer to a governmental actor’s voluntary cessation, even where that cessation occurred pursuant to legislative process. See City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289, 102 S.Ct. 1070, 71 L.Ed.2d 152 (1982) (“[T]he city’s repeal of the objectionable language would not preclude it from reenacting precisely the same provision if the District Court’s judgment were vacated.”); see also League of Women Voters of Ohio, 548 F.3d at 474 (“It is hard to see how the voluntary passage of legislation or issuance of directives can moot claims such as these.” (footnote omitted)).

Nevertheless, apparently relying on such solicitude, the district court held that Plaintiffs’ claims were moot because “[t]here is no evidence to suggest that the Defendant does not plan to use this Revised Notice in 2016 or at any other point in the future.” (R. 66, PagelD 23024.) We note as an initial matter, however, that this holding gets it backwards: Plaintiffs were not required to produce evidence suggesting that the Secretary planned on reengaging in the allegedly illegal behavior after resolution of the case. See Laidlaw, 528 U.S. at 190, 120 S.Ct. 693. Rather, it was— and remains—the Secretary’s “formidable burden” of “showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” Id. The Secretary has failed to meet that burden in this case.

To begin, the new confirmation notice form was issued pursuant to the Secretary’s “directive,” rather than any legislative process. Thus, this is not a case in which reversing the cessation would be particularly burdensome. Cf. Bench Billboard Co. v. City of Cincinnati, 675 F.3d 974, 982 (6th Cir. 2012) (holding that the relevant issue was mooted by the defendant municipality’s ordinance that was “years in the making”). Indeed, it appears from the record that the confirmation notice form is revised on a relatively frequent basis—at least four times in the last nine years, not counting the most recent revision. And because'the Ohio Secretary of State is an elected official, there remains a distinct possibility that a future Secretary will be less inclined to maintain the confirmation notice in its current form. Finally, we note that the circumstances of the Secretary’s issuance of the new form do not inspire confidence in his assurances regarding the likelihood of recurrehce—he issued that new form on the same day-as the parties’ final merits briefs were due before the district court, attaching the form as an exhibit to his brief and only then presenting his mootness argument. This fact makes the Secretary’s voluntary cessation appear less genuine. See id. (noting that the defendant municipalities’ voluntary cessation “appealed] genuine”).

Given these facts, we conclude that the Secretary has not carried his burden of showing that it is “absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” Laidlaw, 528 U.S. at 190, 120 S.Ct. 693. Plaintiffs’ challenges to the confirmation notice therefore have not been rendered moot by the new form. Even if we felt differently about the possibility of recurrence, however, that alone would not render Plaintiffs’ request for an injunction moot. A claim becomes moot only if “interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” Davis, 440 U.S. at 631, 99 S.Ct. 1379; see also Ragsdale, 841 F.2d at 1365 (noting that an issue is moot only if “there are no remaining effects of the alleged violation”). As Plaintiffs note, the Secretary’s newly-issued form does nothing to correct the fact that Ohio has, for years, been, removing voters from the rolls because they failed to respond to forms that are blatantly non-compliant with the NVRA. Thus, in any event, the new form could not render all of Plaintiffs’ claims for relief moot. Cf. Anderson v. Spear, 356 F.3d 651, 655 (6th Cir. 2004) (“As is readily apparent, the action of the legislature suspending the operation of certain provisions of the campaign law [in 2003] does not eliminate the case or controversy which existed by the operation of those laws in 1999.”).

B, Merits

The final question before us concerns the merits of Plaintiffs’ remaining challenge to the newly issued confirmation notice form. Plaintiffs argue that the form does not comply with the NVRA’s mandate, contained in subsection (d)(2)(B) of Section 8, that “[i]f the registrant has changed residence to a place outside the registrar’s jurisdiction in which the registrant is registered,” any confirmation notice sent to that voter must provide “information concerning how the registrant can continue to be eligible to vote.” 52 U.S.C. § 20507(d)(2)(B). Plaintiffs assert that the newly issued form violates this provision because it does not provide Ohio registrants who have moved out of state with information on how to re-register in their new state. This requirement could be satisfied, Plaintiffs contend, by simply modifying the confirmation notice to direct the recipient to the Federal Election Assistance Commission’s website, on which the recipient will find “instructions and guidance for voter registration in all states.” (Pis.’ Br. at 44 n.15.)

Below, the district court held that it “defies logic that the NVRA would saddle the various secretaries of state (or their equivalents) with the onerous burden of coaching out-of-state residents through the registration process in their new states of residence.” (R. 66, PagelD 23025.) In support of this assertion, the court noted that the subsection on which Plaintiffs’ argument is based provides that states must supply registrants with information on how to “continue” to be eligible to vote. (Id. (quoting 52 U.S.C. § 20507(d)(2)(B)).) Without much additional analysis, the district court proclaimed that the word “continue” necessarily means “continue to vote within that State—not register in another state.” (Id.) The Secretary’s arguments on appeal buttress this conclusion by arguing that “[n]o voter can ‘continue to be eligible’ to vote by moving from Ohio to Michigan, ... [r]ather, the new Michigander must become a newly registered Michigan voter.” (Def.’s Br. at 54.)

We find this argument unavailing. To begin, subsection (d)(2)(B)’s plain language contains no intra-state limitation. See 52 U.S.C. § 20507(d)(2)(B). Instead, that subsection provides that information on how to continue to be eligible to vote must be presented to anyone who “has changed residence to a place outside the registrar’s jurisdiction.” Id The “outside the registrar’s jurisdiction” language is the part of subsection (b)(2)(B)’s mandate that establishes its geographic applicability—had Congress intended to place geographic limitations on the mandate, it would have done so with this language rather than relying on a counterintuitive definition of the word “continue.” Moreover, that word—“continue”—must be accorded its ordinary meaning. Cloer, 133 S.Ct. at 1893 (“[UJnless otherwise defined, statutory terms are generally interpreted in accordance with their ordinary meaning.”). “Continue” means to “keep up or maintain especially] without interruption a particular condition.” Webster’s Third New International Dictionary 493 (1986). Certainly, a registrant can “keep up or maintain ... without interruption,” id. her conditiqn of being “eligible to vote,” 52 U.S.C. § 20507(d)(2)(B), regardless of whether she must fully re-register or merely confirm her new address.

Further weighing against the ' Secretary’s interpretation of subsection (d)(2)(B)—whereby “continuing” to vote excludes situations in which voters must fully re-register—is the fact that some states require voters to fully re-register even when they move to a new jurisdiction within the same state. See, e.g., N.J. Stat. § 19:31-11 (“A voter who moves from an election district in one county to an election district in another county prior to the close of registration preceding an election shall register in the new county of residence....”); Okla. Stat. tit. 26, § 4-118 (“Any registered voter who changes his or her residence to another county may apply for registration as an initial registrant in such other county.”). Indeed, the 2007 version of Ohio’s confirmation notice form suggests that Ohio itself once required-voters who moved between counties to fully re-register. Under the Secretary’s reasoning, intra-state movers subject to such reregistration requirements would not be entitled to “information concerning how [they] can continue to be eligible to vote,” 52 U.S.C. § 20507(d)(2)(B), because the requirement that they re-register means that they are not “continuing” to be eligible to vote. Not only would this outcome completely defeat the purpose of subsection (d)(2)(B)’s mandate in states with re-registration requirements, it would contradict the Secretary and district court’s own conclusion that the word “continue” operates to free states of subsection (b)(2)(B)’s mandate with regard to out-of-state movers only.

In sum, we conclude that the district court erred by holding that Plaintiffs’ claims regarding Ohio’s confirmation notice are moot, and that the court erred by concluding that Ohio need not provide out-of-state movers with information on how they can continue to be eligible to vote.

CONCLUSION

For the reasons stated above, we REVERSE the district court’s judgment and REMAND for further proceedings consistent with this opinion.

CONCURRING IN PART AND DISSENTING IN PART

SILER, Circuit Judge,

dissenting in part and concurring in part.

Because of the urgency of this issue and the need to allow the Supreme Court to consider it, I write the dissent/concurrence in condensed fashion. It does not reflect the extent to which I disagree with the majority opinion, although I respect it.

I commend the Secretary for issuing a new confirmation notice form during the pendency of this litigation. In all aspects of the law,. except for directions on how the voter can continue his registration, it complies with the National Voter Registration Act of 1993 (NVRA) and the Help America Vote Act of 2002 (HAVA).

Both sides agree that the language of the NVRA is unambiguous. “If the words of the statute are unambiguous, the judicial inquiry is at an end, and the plain meaning of the text must be enforced.” United States v. Plavcak, 411 F.3d 655, 661 (6th Cir. 2005) (quoting Hudson v. Reno, 130 F.3d 1193, 1196 (6th Cir. 1997)).

This seems to be a much simpler process than as outlined in the majority' opinion. The Secretary has established a Supplemental Process for purging voters from the voting rolls in Ohio. The key language in the statute, attacked by the plaintiffs is from 52 U.S.C. § 20507(b)(2), which directs that States shall not remove “the name of any person from the official list of voters registered to vote in an election for Federal office by reason of the person’s failure to vote.” However, that same subsection allows a State to use “the procedures described in subsections (c) and (d) to remove an individual from the official list of eligible voters” under certain circumstances. Id. That subsection indicates that if the voter

(A) has not either notified the applicable registrar (in person or in writing) or responded during the period described in subparagraph (B) to the notice sent by the applicable registrar; and then
.(B) has not voted or appeared to vote in 2 or more consecutive general elections for Federa) office,

then subsection (d) provides how States may .cancel registrations of those who may have changed addresses. Id. It provides that the registrant should not be removed from the list of voters unless he or she confirms that he or she has changed residence or has failed to respond to a notice described in paragraph (2) and has not voted during a certain period of time. 52 U.S.C. § 20507(d)(1).

The part of the statute which is in contention is § 20507(b)(2), which indicates that the State shall not remove the voter “by reason of the person’s failure to vote.” The Secretary indicates that the person is not removed from the voting rolls until after the registrant is sent a notice by mail to find out if he or she still lives at the old address. Not until that person fails to respond, as plaintiff Larry Harmon did, does the State then list the voter as “inactive” in the registration database. Nevertheless, this “inactive” voter has all the rights to cast a regular ballot at any election, but if four years transpire without the registrant’s voting, his or her registration record is canceled. However, if the registrant has any voting activity during those four years, he or she returns to an active voter status.

The text of the NVRA directs the States to “conduct a general program that makes a reasonable effort to remove the names of ineligible voters from the official lists of eligible voters, by reason of’ death or relocation. 52 U.S.C. § 20507(a)(4). The district court found the Secretary has made a reasonable effort to carry out that mandate, and I agree. The State cannot remove the registrant’s name from the rolls for a failure to vote only, and Ohio does not do so. It removes registrants only if (1) they have not voted or updated them registration for the last two years, (2) also failed to respond to the address-confirmation notice, and (3) then failed to engage in any voter activity in four consecutive years, including two consecutive Federal elections following that notice.

The decision of the district court also follows the language in HAVA. The district court cited the following language from that act:

[Consistent with the National Voter Registration Act of 1993 ;..-, registrants who have not responded to a notice and who have not voted in 2 consecutive general elections for Federal office shall be removed from the official list of eligible voters, except that no registrant may be removed solely by reason of a failure to vote.

52 U.S.C. § 21083(a)(4). As the Secretary has explained, it is his position that no voter is removed solely by reason of a failure to vote, and thus he has complied with the language from- both statutes. I agree. The statutes leave it to the States to implement, and Ohio has'developed a'lawful procedure.

On the question of mootness, I agree with the majority that the plaintiffs had standing to bring the challenge to the notice form when the case was filed. However, I disagree with the conclusion that this case is not moot because the issues, save one, concerning the confirmation notice form have been corrected by the Secretary. Cessation of certain “conduct by government -officials has been treated with more solicitude by the cqurts than similar action by private parties.” Mosley v. Hairston, 920 F.2d 409, 415 (6th Cir. 1990) (quoting Ragsdale v. Turnock, 841 F.2d 1358, 1365 (7th Cir. 1988)). I agree with the district court that there is no evidence to show that the Secretary would change the current notice, and this court should give him deference on that question. However, I concur with the majority that the current notice does not comply with the NVRA final mandate that when the Secretary sends the confirmation notice that the registrant has been purged, the notice must provide “information concerning how the registrant can continue to be eligible to vote.” 52 U.S.C. § 20507(d)(2)(B).

The district court found that this issue was waived by the plaintiffs for failure to include it in their pleadings before filing their reply brief. However, their motion for summary judgment argued that the confirmation notice forms do not advise people who have moved out of the State how they could register in their new State. Although I agree with the district court that the State officials have been given an “onerous burden of coaching out-of-state residents through the registration process in their new States of residence,” that is what the statute requires. The district court ruled that the mandate only applies to give the registrant information about registering in another location in Ohio, but the language, of the statute is broader than that. In their brief .on-appeal, plaintiffs have suggested that an easy way to comply would be by directing voters to the Election Assistance Commission’s website containing the federal form, which provides instructions and guidance for voter registration in all States. Although such a notice should be easy to attach to the notification to the registrants, it assumes that all registrants know how to utilize websites. Nevertheless, that is the relief which the plaintiffs have requested, and it seems simple enough for the Secretary to institute that amendment to the notice.

Therefore, I would affirm the decision of the district court, except insofar as it declined to require the Secretary to amend its notice to voters who have moved to other States. I would grant relief on that sole issue.

      . Both processes are performed on an annual basis. See Ohio Rev. Code § 3503.21(D).

      . As discussed below, the NCOA Process mirrors the voter roll maintenance procedure outlined in Section 8, subsection (c) of the NVRA. See 52 U.S.C. § 20507(c). Because that subsection describes the NCOA Process as one way in which states "may” comply with their obligation under the NVRA to identify and remove voters who are no longer eligible due to a change of residence, see 52 U.S.C. § 20507(a)(4) and (c), the NCOA Process is sometimes referred to-in this litigation as the "Safe-Harbor Process.”

      . According to the Secretary, BOEs carrying out the Supplemental Process "also have discretion to consider whether signing a candidate, issue, or local option petition is viewed as voter activity.” (R. 38, Def.’s Merits Br., PagelD 257.)

      . Absent from this summary of the holdings in the district court’s order is discussion of Plaintiffs' claim that Ohio’s Supplemental Process is applied in a non-uniform manner in violation of 52 U.S.C. § 20507(b)(1). The district court rejected that claim, and Plaintiffs’ briefing on appeal does not address it. We therefore conclude that the claim is forfeited. See McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997).

      . In a similar vein, the Secretary asserts that the except clause "authorizes removals that follow the procedures in subsections (c) and (d).” (Def.'s Br. at 27 (emphasis omitted).) This argument again adds language to the except clause, which does not authorize all “removals that follow the procedures in subsections (c) and (d)” (id, (emphasis added)); rather, the clause simply permits states to "us[e] the procedures” in those subsections. See 52 U.S.C. § 20507(b)(2).

      . On appeal, the Secretary reiterates these arguments, but adds that Plaintiffs no longer have standing to bring their remaining challenge to the notice form because they have not shown - that either they or their members have moved out of state—i.e., that they have been injured by the form’s failure to provide registration information to out-of-state movers. This standing argument, however, is merely a mootness argument presented in another form. Cf. Cleveland Branch, N.A.A.C.P., 263 F.3d at 525 ("[Standing concerns only whether a plaintiff has a viable claim ;that a defendant’s unlawful conduct was occurring at the time the complaint was filed, ... while mootness addresses whether that plaintiff continues to have an interest in the outcome of the litigation,’’ (citation and internal quotation marks omitted)). The Secretary does not dispute that Plaintiffs had standing to challenge the confirmation notice form at the outset of this litigation. We therefore do not address the Secretary's standing argument further.

      . Below, the district court concluded that this argument was waived because "Plaintiffs ... raised this argument for the first time in their Reply brief.” (R. 66, PagelD 23024.) This was error; Plaintiffs’ motion for summary judgment explicitly argued that Ohio’s confirmation notice forms ”do[] not tell people who have moved out of the state how they can register in their new state.” (R. 39, Pis.' Mot. for Summ. J., PagelD 1407 (citing 52 U.S.C. § 20507(d)(2)(B)).)


author: BERNICE BOUIE DONALD, Circuit Judge.

text:
    Erin O’DONNELL; Wilfredo Diaz; Christopher Ereg; Michael Farley; Cynthia Moore; Michael Rinkus; William Salupo; Brian Sabolik; Scott Sistek, Plaintiffs-Appellants, v. CITY OF CLEVELAND, et al., Defendants-Appellees.
    No. 15-4398
    United States Court of Appeals, Sixth Circuit.
    Argued: August 3, 2016
    Decided and Filed: September 23, 2016
    Rehearing En Banc Denied Oct. 28, 2016

      ARGUED: Jonathan E. Rosenbaum, Elyria,: Ohio, for Appellants. Aikaterini Houston, City -of Cleveland, Cleveland, Ohio, for Appellees. ON BRIEF: Jonathan E. Rosenbaum, Elyria, Ohio, for Appellants. Aikaterini Houston, City of Cleveland, Cleveland, Ohio, for Appellees.
    Before: SUTTON, GRIFFIN, and DONALD, Circuit Judges.

       Judge Moore recused herself from participation in this ruling.

   OPINION

BERNICE BOUIE DONALD, Circuit Judge.

In November 2012, thirteen police officers—twelve Caucasian and one Hispanic—engaged in a high-speed car chase in Cleveland, Ohio. When the car finally came to a stop, the officers fired 139 bullets into the vehicle, killing the two African American suspects inside. The public outcry was deafening; the event’s racial underpinnings spawned extensive media coverage, and the community demanded resignations and answers. The officers involved in the traumatic incident were subsequently assigned to restricted duty pursuant to departmental policy. Nine of those officers are the Plaintiffs in this case. The Plaintiffs assert that, as a result of the racial implications and community response to this particular deadly force'-incident, they- were assigned to restricted • duty for a longer period of time than their African American colleagues who have also been involved in deadly force incidents with African American suspects.

- United States Supreme Court Justice Thurgood Marshall once wrote, “History teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure.” Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 635, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (Marshall, J., dissenting). The Plaintiffs essentially claim that in a time of urgency, the City of Cleveland determined that the Plaintiffs’ liberties were too extravagant to endure. While we should heed history’s lesson about protecting civil liberties in times of crisis, history alone is not evidence of civil rights violations. Plaintiffs must still meet minimum requirements under the law to survive summary judgment. See Zambetti v. Cuyahoga Cmty. College, 314 F.3d 249, 255-56 (6th Cir. 2002) (articulating the modified McDonnell Douglas standard). Because the Plaintiffs have not met those requirements, we AFFIRM the district court’s grant of summary judgment in favor of the Defendants.

I.

A. The Traumatic Event

On November 29, 2012, a vehicle sped by Cleveland Police Officers Vasile Nan and Alan Almeida and emitted a loud bang. Thinking that it was a gunshot, the officers and members of the public took cover as the vehicle continued along the highway. Officer Nan attempted to ascertain the vehicle’s location,. radioed the events to his. dispatcher,.and indicated that he was shot at by two African American men in a vehicle.

Shortly after this encounter, and the radio dispatch, nearby officers began to respond to the dispatcher’s call. Two officers attempted a traffic stop of the vehicle, but it did not stop. The subsequent pursuit lasted about twenty-five minutes, reached speeds of over 100 miles per hour, involved 62 marked and unmarked police vehicles from numerous governmental entities, and ended in a middle school parking lot. With the suspects’ car finally contained, Officer Wilfredo Diaz exited his vehicle and instructed the driver to “stop.” Diaz believed he saw the passenger reach for a gun. In response, Diaz- fired his weapon at the vehicle and its occupants multiple times. The suspects’ vehicle then accelerated towards Diaz, and he continued to discharge his weapon. Other officers correspondingly discharged their weapons. In total, thirteen officers fired 139 shots at and into the vehicle. Its occupants, Timothy Russell and Malissa Williams, were killed in the barrage of shots.

B. The Aftermath

The East Cleveland Police Department took responsibility for the initial investigation, but the Ohio Bureau of Criminal Investigation (“BCI”) eventually became the lead investigative body. The media started reporting the story, framing it as twelve Caucasian officers and one Hispanic officer shooting and killing two unarmed African American suspects after a high-speed car chase. The community response was significant, and several people sought Chief of Police Michael McGrath’s and Director of Public Safety Martin Flask’s resignation, as well as those of the officers involved.

After the shooting, the officer Plaintiffs—Erin O’Donnell, Diaz, Christopher Ereg, Michael Farley, Cynthia Moore, Michael Rinkus, William Salupo, Brian Sabo-lik, and Scott Sistek—were subject to the City of Cleveland’s police department policy entitled Post Traumatic Incident Protocol (“PTIP”). The PTIP requires officers involved in deadly force incidents to be assigned to restricted duty status, which is colloquially referred to as being assigned to the “Gymnasium.” Officers are assigned to the Gymnasium for a period of forty-five days by default to “facilitate” return to full duty as healthy, productive employees.” R. 54-13, PagelD #666-68. Being assigned to restricted duty limits an officer’s contact with the public and prevents him from earning overtime pay, earning pay for court appearances, and engaging in outside employment. It also can cause stress and has been characterized as a “demeaning process,” as “an officer who entered law enforcement to provide a service to the citizens of a community is given a do-nothing assignment that provides no value to the citizens who the officers took an oath to serve.” R. 54-22, PagelD #724.

Once the forty-five day period is over, the PTIP allows the Chief of Police to extend the period- “[a]t the request of the [officer] and/or the recommendation of the Division’s Stress Consultant.”. R. 54-13, #667. To return to full duty, the officer must be cleared by the Division’s Stress Consultant, an outside mental health professional, as well as the Medical Director. After an officer is cleared to return to full duty, the Chief of Police then has the discretion to determine the officer’s assignment, “which may consist of a detail to a transitional non-sensitive position for up to 90 days.” Id. The PTIP indicates that each incident will be reviewed individually.

Police Chief McGrath assigned the Plaintiffs to restricted duty on December 3, 2012, in compliance with the forty-five-day cooling-off period. On February 5, 2013, the BCI released its report to the county prosecutor, who then began his review. Before the county prosecutor finished his review, on June 3, 2013, McGrath issued a written order, indicating that the Plaintiffs were to return to full duty (except Rinkus, who returned to full duty on July 1, 2013). At the same time, he asserts that he issued a verbal instruction ■ to his command staff that the Plaintiffs were to only be assigned non-sensitive positions, or transitional duties. In October 2013, McGrath discovered that the Plaintiffs had returned to full duty, in violation of his verbal instructions. When he discovered this error, McGrath once again ordered the Plaintiffs assigned to traditional duty. In May 2014, the state grand jury declined to issue criminal charges against any of the Plaintiffs, and on June 13, 2014, the new Police Chief, Calvin Williams, ordered the Plaintiffs to return to full duty.

C. The Court Case

The Plaintiffs filed suit against the City of Cleveland, Michael McGrath (both in his individual and official capacities), Martin Flask (both in his individual and official capacities), Calvin Williams (both in his individual and official' capacities), and Frank G. Jackson (in his official capacity) (collectively, the “Defendants”) on November 28, 2014. Count I of the Complaint alleges that the Defendants discriminated against the ■ Plaintiffs in violation of 42 U.S.C. § 1981, 42 U.S.C; § 2000e-2 (Title VII of the Civil Rights Act), and Ohio Rev. Code § 4112.02(A). Count II alleges a violation of constitutional rights pursuant to 42 U.S.C. § 1983. Finally, Count III alleges a breach of contract claim. The Plaintiffs’ theory of the case was that there was a policy in place that addressed officers involved in traumatic events. That policy, they assert, was to relegate those officers to the Gymnasium for a set period of time—namely, forty-five days. The Plaintiffs contend that McGrath relegated them to the Gymnasium and/or restricted duty for a longer period of time than established in policy because they were Caucasian officers involved in a traumatic event with African American suspects, which caused political problems for the mayor, the safety director, and the chief of police. The district court ultimately granted summary judgment in favor of the Defendants.

On appeal, the Plaintiffs assert numerous arguments. They claim that the district court failed to properly construe facts in their favor in violation of the summary judgment standard; that the district court erred in granting the Defendants’, summary judgment on the state law discrimination claim; that the district court erred in dismissing and denying their 42 U.S.C. §§ 1981 and 1983 claims; and that the district court erred in dismissing the Plaintiffs’ breach of contract claim for failure to exhaust contractual remedies. We review each in turn.

II.

First, the Plaintiffs claim that the district court wrongfully construed two facts in favor of the Defendants, in violation of the summary judgment standard. “In ruling upon a Rule 56 motion, -a District Court must resolve any factual issues of controversy in favor of the nonmoving party only in the sense that, where the facts specifically averred by that party contradict facts specifically averred by the movant, the motion must be denied.” Lujan v. Nat’l Wildlife Fed., 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). Further, “a mere ‘scintilla’ of evidence .in support of the nonmoving part/s position is insufficient to defeat summary judgment; rather, the non-moving party must present evidence upon which a reasonable jury could find in her favor.” Tingle v. Arbors at Hilliard, 692 F.3d 523, 529 (6th Cir. 2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

The Plaintiffs take issue with the district court’s characterization of Russell and Williams as “unarmed” as well as the district court’s indication that “[a] backfiring car engine likely caused the noise” that resembled “a gunshot type sound.” Br. 32. The Plaintiffs claim that the Ohio Bureau of Criminal Investigation’s Report (“BCI Report”) and the Consulting Report from Police Trainer and Consultant W. Ken Katsaris contradict the district court’s characterization. The BCI Report concludes that “[n]o scientific’conclusion can therefore be made from these results as to whether or not either of the subjects had recently possessed or fired a weapon.” R. 54-1, PagelD #530. Further, the Consulting Report indicated that “it was not a stretch to arrive at the reasonable perception [that Russell and Williams] were, indeed, shooting at the officers or planning and preparing to shoot at various points during the course of the reckless evading of the officers.” R. 54, PagelD #664. Thus, the Plaintiffs argue that the district court should have concluded, for summary judgment purposes, that Russell and Williams were “two drug addicted mentally unstable fleeing felons shooting at- police officers while driving around at high speeds endangering the populace.” Br. 34.

In its characterization of the events of November- 29, 2015, the district court construed the absence of evidence to the contrary to suggest that Russell and Williams were likely unarmed and that the gunshot-type noise was likely Russell and Williams’ car backfiring. The Plaintiffs have not offered a scintilla of evidence that suggests that the noise was actually a gunshot. They also have not cited any evidence in the record that suggests that Russell and Williams were actually armed. Indeed, the evidence they cite suggests that the investigation revealed no such evidence. Thus, the district court did not err in making these two inferences.

However, even if it were error for .the district court to make those inferences, the characterization does not constitute a genuine dispute of material facts. See Fed. R. Civ. P. 56. The Plaintiffs’ main claim is that they, as Caucasian police officers, were treated differently than African American police officers after a deadly force incident involving an African American suspect. That claim does not turn on whether Russell and Williams were actually armed or whether they were actually shooting at officers. Further, whether Russell and Williams were actually armed does not affect any prong of the modified McDonnell Douglas standard. Accordingly, even if it was erroneous for the district court to phrase the facts as it did, any error was harmless.

III.

Second, the Plaintiffs claim that the district court erred in granting summary judgment in favor of the Defendants on the Plaintiffs’ Ohio Revised Code § 4112.02 discrimination claim. This Court reviews a district court’s grant of summary judgment de novo. Troche v. Crabtree, 814 F.3d 795, 798 (6th Cir. 2016). A movant is entitled to summary judgment only if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). This Court draws all reasonable inferences and construes all evidence in favor of the nonmoving party. Tingle, 692 F.3d at 529 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). An issue is “genuine” within the meaning of Rule 56(a) “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Additionally, a fact is “material” within the meaning of Rule 56(a) if the dispute over it might affect the outcome of the lawsuit under the governing law. Id.

Under Ohio law (which utilizes the Title VII standard), plaintiffs claiming discrimination may prove such a claim in one of two ways. See Weberg v. Franks, 229 F.3d 514, 522-23 (6th Cir. 2000). They can either provide direct evidence of discrimination, id. or they can provide circumstantial evidence under the McDonnell Douglas standard, see Thompson v. City of Lansing, 410 Fed.Appx. 922, 932 (6th Cir. 2011). The Plaintiffs here challenge the district court’s decision on both grounds.

A. Direct Evidence

“Direct evidence is evidence that, if believed, ‘requires the conclusion that unlawful discrimination was at least a motivating factor in the employer’s actions.’” Id. at 929 (quoting Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir. 2003)). In other words, “[d]irect evidence must prove not only discriminatory animus, but also that the employer actually acted on that animus.” Johnson v. Metro. Gov’t of Nashville, 502 Fed.Appx. 523, 534 (6th Cir. 2012). Once a plaintiff demonstrates direct evidence of discrimination, “[t]he burden of persuasion then shifts to the defendant to show that it would have [taken the adverse employment action] absent the discriminatory motive.” Weberg, 229 F.3d at 522-23.

The Plaintiffs argue that the district court erred in concluding that Franko v. City of Cleveland, 654 F.Supp.2d 711 (N.D. Ohio 2009), and testimony associated with that case is direct evidence that the City of Cleveland engaged in discrimination in this case. In Frnnko, the district court concluded that the plaintiff had “met his threshold burden of establishing the City of Cleveland is that unusual employer that discriminates against the majority.” 654 F.Supp.2d at 718. The Plaintiffs also argue that Lentz v. City of Cleveland, 333 Fed.Appx. 42 (6th Cir. 2009) is direct evidence of discrimination' in this case. In Lentz, a'jury concluded that the City of Cleveland engaged in discrimination against a Caucasian police officer after he shot an African American male during a pursuit of that individual’s vehicle. 333 Fed.Appx. at 43 (6th Cir. 2009).

The district court correctly concluded that these previous cases against the City of Cleveland were not direct evidence that McGrath discriminated against the Plaintiffs here. Franko and Lentz cases involved different traumatic events, different officers, different supervisors, and different decision-makers than the instant case. They do not demonstrate that McGrath had a discriminatory animus based on the November 2012 deadly force incident and that he acted on that animus. See Johnson, 502 Fed.Appx. at 534. Thus, Frnnko and Lentz do not “require[ ] the conclusion that unlawful discrimination was at least a motivating factor in the employer’s actions” in this case. Weberg, 229 F.3d at 522.

B. The McDonnell Douglas Standard

A plaintiff can also prove a discrimination claim pursuant to a modified version of the McDonnell Douglas standard. See Weberg, 229 F.3d at 523; Murray v. Thistledown Racing Club, Inc., 770 F.2d 63, 67 (6th Cir. 1985). Under this standard, a plaintiff must demonstrate “(1) background circumstances supporting the inference that plaintiffs employer was the unusual employer who discriminated against non-minority employees, (2) that plaintiff was discharged (or that the employer took an action adverse to the plaintiffs employment), (3) that plaintiff was qualified for the position, and (4) that plaintiff was treated disparately from similarly situated minority employees.” Courie v. ALCOA, 162 Ohio App.3d 133, 832 N.E.2d 1230, 1235 (2005); see Murray, 770 F.2d at 67.

If a plaintiff successfully establishes a prima facie case of discrimination, “the burden shifts to the defendant ‘to articulate some legitimate, nondiscriminatory reason for the employ[er]’s [decision].’ ” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). If a defendant successfully articulates a legitimate, non-discriminatory reason for the employment decision, then the burden shifts back to the plaintiff to demonstrate that the reason is a pretext for discrimination. Id. The plaintiff can demonstrate pretext by showing that the defendant’s proffered reason “(1) has no basis in fact; (2) did not actually motivate the defendant’s challenged conduct; or (3) was insufficient to warrant the challenged conduct.” Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir. 2000); see id.

The Plaintiffs challenge the district court’s conclusions on nearly every basis of the McDonnell Douglas standard. We focus on whether the Plaintiffs have demonstrated similarly-situated comparables and whether the proffered reason for their return to restricted duty was a pretext for discrimination.

1. Similarly-Situated Comparables

To sufficiently demonstrate similarly-situated employees, plaintiffs must show that the proffered “comparables” are similar “in all respects.” Pohmer v. JPMorgan Chase Bank, N.A., No. 14AP-429 2015 WL 1432546, *9 (Ohio Ct. App. Mar. 31, 2015) (internal quotation marks, citations, and emphasis omitted). In other words, the plaintiff must show that “all of the relevant aspects of his employment situation were ‘nearly identical’ to those of the [comparable employee’s] employment situation.’ ” Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998) (emphasis omitted) (quoting Pierce v. Commonwealth Life Ins., 40 F.3d 796, 802 (6th Cir. 1994)). For example, the com-parables “must have dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer’s treatment of them for it.” Id. (quoting Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992)).

To meet this requirement, the Plaintiffs here proffered a Microsoft Excel spreadsheet, which they compiled and which includes information about deadly force incidents, the officers involved, and the length of their assignment to restricted duty. The Plaintiffs complain that even though the Defendants did not dispute the information, the district court “took it upon itself to impeach” the report and undermine the statistics, violating the standard for reviewing a motion for summary judgment. Br. 44-45. The Plaintiffs argue that the spreadsheet demonstrates seven similarly situated African American police officers who were ordered to the Gymnasium after traumatic .incidents for less time than they were.

In Bazemore v. Friday, 478 U.S. 385, 400-01, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986), the Supreme Court addressed the probative value of statistical information in Title VII discrimination cases:

While the omission of variables from a regression analysis may render the analysis less probative than it otherwise might be, it can hardly be said, absent some other infirmity, that an analysis which accounts for the major factors “must be considered unacceptable as evidence of discrimination.” Normally, failure to include variables will affect the analysis’ probativeness, not its admissibility.
Importantly, it is clear that a regression analysis that includes less than “all measurable variables” may serve to prove a plaintiffs case. A plaintiff in a Title VII suit need not prove discrimination with scientific certainty; rather, his or her burden is to prove discrimination by a preponderance of the evidence. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Whether, in fact, such a regression analysis does car- ■ ry the plaintiffs’ ultimate burden will depend in a given case on the factual context of each case in light of all the evidence presented by both the plaintiff and the defendant. However, as long-as ■ the court may fairly conclude, in light of all the evidence, that it is more likely than not that impermissible discrimination exists, the plaintiff is entitled to ■ prevail.

Id. In Lentz, we concluded that certain officers were similarly situated to the plaintiffs because they “participated in automobile-related shootings and received gym duty assignments while under investigation pursuant to the relevant Departmental procedures.” 333 Fed.Appx. at 46.

We find that the Plaintiffs’ proffered spreadsheet has serious infirmities that greatly undermine its credibility. First, it does not address all of the “relevant” aspects of the Plaintiffs’ employment situation. The spreadsheet contains the following columns: the date of the traumatic incident; the UDF report number; the officer involved; the level of the suspect’s injury; the race, sex, and age of the suspect; the date the officer was assigned to the Gymnasium; and the date the officer left restricted duty. Critically, the spreadsheet does not include information regarding, for example, who the officers’ supervisor was; what type of investigation followed; a comparison of time spent on transitional duty; whether an officer requested to stay in the Gymnasium; or whether an officer was required to stay in the Gymnasium by medical officials. See Ercegovieh, 154 F.3d at 352. It further fails to demonstrate the information that we suggested in Lente—-whether the Gymnasium assignment was pending the length of the subsequent investigation. Without these additional considerations, the probative value of this spreadsheet is greatly undermined.

Second,. the Plaintiffs claim that the spreadsheet shows that non-African American officers who used deadly force and killed African American suspects spent an average of 239.38 days on restricted duty. However, according to the spreadsheet, that is not true. That average is skewed by the inclusion of dates for which the Plaintiffs were detailed to transitional duty assignments. At oral argument, the Plaintiffs conceded that these dates should not have been included in the calculations.

Based on these infirmities, the district court did not err in finding the statistics insufficient to establish similarly-situated comparables. Thus, the Plaintiffs have failed to demonstrate this prong of the modified McDonnell Douglas standard.

2, Legitimate, Nondiscriminatory Reason A Pretext For Discrimination

Even if we were to assume that the Plaintiffs met their burden on the first prongs of the McDonnell Douglas standard, “the burden [then] shifts to the employer to proffer a legitimate, nondiscrimi- • natory reason for its decision.” Arnold v. City of Columbus, 515 Fed.Appx. 524, 530 (6th Cir. 2013) (citation omitted). If the defendants proffer such a reason, the burden returns to the plaintiffs to establish “by a preponderance of the evidence that the reasons offered by the employer were a pretext for discrimination.” Gribcheck v. Runyon, 245 F.3d 547, 550 (6th Cir. 2001). Pretext can be shown in one of three ways: “(1) that the proffered reason[] had no basis in fact, (2) that the proffered .reason[] did not actually motivate the employer’s action, or (3) that [the reason was] insufficient to motivate the employer’s action.” Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009).

In explaining their legitimate, non-discriminatory reason for their action, the Defendants rely on McGrath’s testimony. He stated that after the PTIP policy was complete, he ordered the officers to return to their home district on full duty but verbally instructed their commanding officers that they be assigned only transitional duties. When he discovered that they had been returned to full duty, contrary to his verbal orders, he ordered them back to restricted duty until the investigation was complete. McGrath states he discovered the Plaintiffs were not detailed to transitional duties as a result of a conversation in his office.

The Plaintiffs claim that McGrath’s excuse for returning them to the Gymnasium—that he “discovered” that they had been returned to full duty in violation of his verbal orders that they were to remain on transitional duty—was a pretext for discrimination. Instead, they claim that they were subsequently, and wrongfully, ordered to the Gymnasium until the prosecutor’s review was complete as a result of a media inquiry about their employment status. The Plaintiffs cite a news article as well as testimony suggesting that written orders returning officers to full duty accompanied by verbal orders that they be assigned to transitional duty was unusual.

The Plaintiffs have failed to carry their burden on this claim. The same day that the Plaintiffs were ordered to the Gymnasium for a second time, 19 Action News posted an article online about the Plaintiffs’ employment status. The Plaintiffs argue that this shows that McGrath acted based on racial tensions in the community and the media inquiry—not based on a discovered mistake. However, the news article states that it originally reported that the officers had returned to full duty in June, about four months prior McGrath’s order that they return to restricted duty. The article then states that McGrath has now decided that that decision was inappropriate. Accordingly, he ordered the Plaintiffs “off the streets until a county prosecutor decides on any criminal charges.” R. 54-15, PagelD #672. R. 5.

Nothing in the article suggests or implies that it was as the result of a media inquiry that McGrath moved the officers to restricted duty; it only reports McGrath’s decision to assign the officers involved in the Russell/Williams shooting to restricted duty. There is also nothing in the article that indicates that McGrath’s decision was based on the Plaintiffs’ race. If anything, the article undermines those arguments. It pointedly states that it had previously reported the Plaintiffs’ status, and it explains that McGrath decided to order the Plaintiffs to be assigned to restricted duty until all investigations were complete.

Additionally, the Plaintiffs argue that it was unusual for McGrath to issue a written order indicating the Plaintiffs were to return to full duty while verbally ordering them to maintain transitional duties. They also argue that it was unreasonable for five months to pass before McGrath realized that his orders were compromised. However, they fail to point to any evidence that this did not, in fact, happen this way. For example, they could have deposed Calvin Williams, the officer who received the verbal order from McGrath regarding the Plaintiffs’ duty status, but they did not. Without any contrary evidence to McGrath’s assertions, the Plaintiffs have not demonstrated that his decision to keep the Plaintiffs or transitional duty until the outcome of the prosecutor’s investigation was a pretext for discrimination against them based on their race. See Chen, 580 F.3d at 400. Thus, the Plaintiffs’ discrimination claim fails.

IV.

The Plaintiffs assert several arguments regarding their additional claims. First, they claim that based on their purported establishment of a prima facie case of discrimination, the district court erred in concluding that their § 1981 discrimination claim and their § 1983 discrimination claim each fail. For the reasons stated above, the Plaintiffs have not posited a prima facie case of discrimination.

Second, the Plaintiffs argue that the district court erred in denying them relief on their equal protection claim because, based on their argument that the Defendants discriminated against them in violation of Ohio Revised Code § 4112.02, the Defendants treated them differently than their African American colleagues. Again, for the reasons stated above, the Plaintiffs failed to articulate a “racially discriminatory intent or purpose” to demonstrate an equal protection claim. City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188, 194, 123 S.Ct. 1389, 155 L.Ed.2d 349 (2003) (indicating that “[p]roof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause”).

Third, utilizing § 1983, the Plaintiffs argue that the district court wrongfully concluded that they did not have a property interest in their “secondary employment, overtime pay, court appearances, and transfers,” which the City deprived them without due process. Br. 59. The Plaintiffs assert that the Collective Bargaining Agreement (CBA) with Cleveland establishes a property interest in various entitlements. “To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Bd. of Regents of State Coll. v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

Each of the entitlements the Plaintiffs discuss is discretionary with the City of Cleveland and its officials; thus, the Plaintiffs have no “legitimate claim of entitlement to” them. Id.; see, e.g., R. 53-4, Pa-gelD #421 (“The City shall be the sole judge of the necessity for overtime.”); R. 54-29, PagelD #1019 (indicating that “[u]pon written permission by the Chief of Police and the Director of Public Safety, Division members may engage in secondary employment if the work does not interfere with Division employment and there is no conflict of interest between the work and the Division” (emphasis added)); R. 53-3, PagelD #402 (“Supervisors shall: Approve all in-house assignments (court appearances, property runs, etc[.]) ... ”). As the district court explained, and the Plaintiffs fail to correct on appeal, they “do not allege any facts to show that they were not able to apply for transfers or to sit for promotional exams.” R. 68, PagelD #1505. Further, the CBA’s provisions for certain pay rates do not demonstrate that Plaintiffs then have a property interest in those wages. Thus, the district court did not err in concluding that the Plaintiffs lacked legitimate property interests in any of these various benefits.

Fourth, the Plaintiffs claim that the district court misconstrued Glover v. St. Louis-San Francisco Railway Co., 393 U.S. 324, 330, 89 S.Ct. 548, 21 L.Ed.2d 519 (1969), and wrongfully dismissed their breach of contract claim by concluding that the Plaintiffs should have attempted to avail themselves of the CBA’s grievance procedure. Instead, they argue that any attempt to utilize the CBA’s grievance procedure would have been futile, given that McGrath played a role in the grievance procedure.

The district court did not err in distinguishing Glover from the case here. Notably, Glover is the exception, not the rule. 393 U.S. at 330, 89 S.Ct. 548. We have explicitly held that “[i]t is clear that when arbitration is mandatory, an employee must at least attempt to use and exhaust the contractual grievance procedure before seeking judicial review of his claim.” Atkins v. Louisville & Nashville R. Co., 819 F.2d 644, 649 (6th Cir. 1987) (citing Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965)). In Glover, the Supreme Court did not require African American railroad employees to utilize all of the available grievance procedures. 393 U.S. at 331, 89 S.Ct. 548. This was because of extensive collusion between the bargaining representatives and the railroad. Id. As a result, the African American employees’ complaints “were either ignored or actively discouraged” and there was a “hostility of the union representatives toward the complaining employees.” Spicer v. Ford Motor Co., 491 Fed.Appx. 543, 546 (6th Cir. 2012). That scenario is vastly different from the circumstances present here, where the Plaintiffs have not demonstrated that they even complained about their assignments prior to filing suit. Thus, the district court properly dismissed this claim.

V.

As history and Justice Marshall instructed us, we have carefully reviewed the issues surrounding the Plaintiffs’ liberties during what was an emotional and sensitive time in Cleveland. Finding no error, we AFFIRM the district court’s grant of summary judgment in favor of the Defendants.

      . At oral argument, the Plaintiffs waived their argument that the district court abused its ■ discretion in denying the Plaintiffs' request for a discovery extension.

      . The Plaintiffs also argue that the district court improperly concluded that two prior court cases regarding discrimination against Caucasians in the Cleveland police department were not similar to the situation at issue here. For the reasons stated in Section III, the district court did not err.

      . Citing Parldane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct 645, 58 L.Ed.2d 552 (1979), the Plaintiffs also argue that Franko should be considered direct evidence in this case under the doctrine of offensive collateral estoppel. However, they fail to offer any argument beyond that conclusory statement. We find this argument forfeited. See United States v. Johnson, 440 F.3d 832, 846 (6th Cir. 2006) ("[I]t is a settled appellate rule that issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed forfeited." (quoting United States v. Elder, 90 F.3d 1110, 1118 (6th Cir. 1996))).

      . The Plaintiffs made this argument in the "Preamble” to their analysis of the assignment of error. They neglected to mention Lentz in the section of their brief entitled "Direct Evidence.” We analyze it anyway, as the "Preamble” appears to make the applicable argument.

      . For example, comparables’ average tíme on restricted duty is skewed by an outlier, an individual who spent only eight days assigned to the Gymnasium. Without additional information, it is hard to determine whether this individual is truly a comparable.

      . As the Defendants point out in their brief, éven if the Plaintiffs could show discrimination, they would have to contend with the honest belief doctrine. The honest belief doctrine dictates that ''[i]f the employer had an honest belief in the proffered basis for the adverse employment action, and that belief arose from reasonable reliance on the particularized facts before the employer when it made the decision, the asserted reason will not be deemed pretextual, even if it was erroneous.” Loyd v. Saint Joseph Mercy Oakland, 766 F.3d 580, 596 (6th Cir. 2014) (quoting Upshaw v. Ford Motor Co., 576 F.3d 576, 586 (6th Cir. 2009)).