author: COOK, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jason Edward BECKHAM, Defendant-Appellant.
    No. 15-2592
    United States Court of Appeals, Sixth Circuit.
    Decided and Filed: September 28, 2016

      ON BRIEF: Britt M. Cobb, WILLEY & CHAMBERLAIN, LLP, Grand Rapids, Michigan, for Appellant. Stephen P. Baker, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appel-lee.
    Before: ROGERS, SUTTON, COOK, Circuit Judges.
   OPINION

COOK, Circuit Judge.

The United States Sentencing Commission occasionally amends the Sentencing Guidelines and must decide whether, and to what extent, defendants sentenced under the old Guidelines may benefit from the change. In 2011, the Commission revised the Guidelines Manual (“U.S.S.G.”) to generally prohibit district courts from reducing a sentence below a defendant’s amended Guidelines range. Appellant Jason Beckham moved to modify his sentence when the Commission reduced the Guidelines for most drug offenses in 2014. But because his current sentence is below his amended Guidelines range, the district court denied his motion. On appeal, Beck-ham questions the court’s calculation of his amended Guidelines range and raises an ex post facto challenge to the 2011 amendment. Discerning no error, we AFFIRM.

I.

In 2009, Beckham pleaded guilty without a plea agreement to charges of conspiring to distribute more than 500 grams of cocaine and an unspecified amount of ecstasy. The probation office prepared a presentence report, relying on the 2009 version of the Sentencing Guidelines. At sentencing, the district court determined that Beckham’s total offense level was 30 and that his criminal-history category was six, resulting in a Guidelines range of 168-210 months’ imprisonment. The court then departed downward under U.S.S.G. §4A1.S to a criminal-history category of four, finding that the Guidelines overstated the severity of Beckham’s criminal past. The district court sentenced Beck-ham to 135 months’ imprisonment.

In 2014, the Sentencing Commission retroactively lowered the base-offense level for most drug crimes, including Beck-ham’s. U.S.S.G. App. C Supp., at 64-74. Hoping to benefit, Beckham moved to modify his sentence under 18 U.S.C. § 3582(c)(2). Unfortunately for Beckham, the Commission had previously issued Amendment 759, which “preclude^] district courts from reapplying any departure or variance in a sentence reduction” and forbids courts from reducing a sentence below an amended Guidelines range, with one narrow exception. United States v. Taylor, 815 F.3d 248, 250-51 (6th Cir. 2016).

The probation office calculated Beck-ham’s amended Guidelines , range as 140-175 months based on a revised offense level of 28 and his pre-departure criminal-history category of six. Because Beckham’s current sentence (135 months) is below, the low end of his amended Guidelines range (140 months), the probation office, found him ineligible for a further reduction. The district, court agreed, and Beckham appealr ed.

II.

Beckham first argues that the district court should have included his criminal-history departure in calculating his amended Guidelines range. Were Beckham correct, his amended Guidelines range would be 110-137 months, making him eligible for a reduced sentence under § 3582(c)(2). Because Beckham did not raise this argument below, we review for plain error. United States v. Trammel, 404 F.3d 397, 401 (6th Cir. 2005); see also United States v. Brookins, 410 Fed.Appx. 918, 920 (6th Cir. 2011) (applying plain-error standard to decision denying a § 3582(c)(2) motion).

The district court properly excluded Beckham’s § 4A1.3 departure when determining his eligibility for a reduced sentence. Section 3582(c)(2) authorizes district courts to reduce a sentence only if “such a reduction is consistent with applicable policy'statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). Under the governing policy statement, § 1B1.10, defendants qualify for § 3582(c)(2) relief only if a Guidelines amendment “ha[s] the effect of lowering the defendant’s applicable guideline range.” U.S.S.G. § lB1.10(a)(2)(B). And in 2011, the Sentencing Commission issued Amendment 759, which amended § 1B1.10 to clarify that a defendant’s “applicable guideline range” is “the guideline range that corresponds to the offense level and criminal history category determined pursuant to § lBl.l(a), which is determined before consideration of any departure, provision in the Guidelines Manual or any variance.” See id. § 1B1.10 cmt. n.l(A) (emphasis added); id. App. C, Vol. Ill, at 416. Amendment 759 also.instructs that courts “shall not” reduce a defendant’s sentence “to a term that is less than the minimum of the- amended guideline range,” with one exception not relevant here. Id. § lB1.10(b)(2)(A); id. App. C, Vol. Ill, at 420. The upshot is that courts may not reapply departures received at sentencing in computing a defendant’s amended Guidelines range. See, e.g., Taylor, 815 F.3d at 250-51; United States v. Hogan, 722 F.3d 55, 60 (1st Cir. 2013); United States v. Montanez, 717 F.3d 287, 293-94 (2d Cir. 2013); United States v. Boyd, 721 F.3d 1259, 1264 (10th Cir. 2013); United States v. Hippolyte, 712 F.3d 535, 541 (11th Cir. 2013).

Accordingly, a straightforward application of § 3582(c)(2), the Guidelines, and circuit precedent precluded the district court from reapplying Beckham’s § 4A1.3 departure in calculating his amended Guidelines, range. See, e.g., Taylor, 815 F.3d at 250-51; U.S.S.G. § 1B1.10 cmt. n.l(A). And. because Beckham’s current sentence already falls below that range, the district court could not further reduce his sentence. See Taylor, 815 F.3d at 250-51; 18 U.S.C. § 3582(c)(2); U.S.S.G. § lB1.10(b)(2)(A).

In an effort to elude this authority, Beckham points to the first clause of the § 1B1.10 commentary, defining “the applicable guideline range” as that which “corresponds to the ... criminal history'category determined pursuant to lBl.l(a).” U.S.S.G. § 1B1.10 cmt. n.l(A). Because § lBl.l(a)(6) instructs courts to “[dieter-mine the defendant’s criminal history category as specified in Part A of Chapter Four,” which includes §4A1.3, Beckham argues that § 4A1.3 adjustments are “part of the applicable guideline range calculus,” at least as applied to non-career offenders like himself. (Appellant Brief at 11, 16.) Beckham supports treating career offenders and non-career offenders differently by noting that many of the eases prompting the Commission to define “applicable guideline range” involved defendants sentenced under the Guidelines’ career-offender provision, § 4B1.1. (Id. at 15.) And because career-offender criminal-history categories are calculated under Part B of Chapter 4, which § lBl.l(a)(6) says to calculate after applying Part A, he argues that § 4A1.3 adjustments must' be “departures” as applied to career offenders, but “part of the applicable guideline range” as applied to non-career offenders. (Id. at 16.) If Beckham were correct, Amendment 759 would- prevent district courts from reapplying a § 4A1.3 departure just to career offenders seeking a § 3582(c)(2) modification.

Beckham’s plain-language argument that the § IB 1.10 commentary makes § 4A1.3 adjustments part of the applicable-guideline-range calculus has some facial plausibility. However, ultimately the second clause of the “applicable guideline range” definition in the § 1B1.10 commentary “qualifies] the preceding language by eliminating any consideration of departures that may occur in following § lBl.l(a).” Boyd, 721 F.3d at 1263. That qualification also answers Beckham’s argument that §4A1.3 applies differently to career offenders and non-career offenders. Section lBl.lO’s second clause instructs that a defendant’s “applicable guideline range ... is determined before consideration of any departure provision in the Guidelines Manual.” U.S.S.G. § 1B1.10 cmt. n.l(A) (emphasis added). Thus, the question is whether § 4A1.3 is a “departure provision.” The Guidelines say it is. Start with § 4A1.3’s title—“Departures Based on Inadequacy of Criminal History Category”—and look to how the Guidelines define “departure.” U.S.S.G. §4A1.3 (emphasis added). For the purposes of §4A1.3, departure means “assignment of a criminal history category other than the otherwise applicable criminal history category, in order to effect a sentence outside the applicable guideline range.” U.S.S.G. §1B1.1 cmt. n.l(E) (emphasis added). Beckham’s reading would mean that a § 4A1.3 departure is “part of the applicable guideline range,” at least in some cases, even though it always “effect[s] a sentence outside the applicable guideline range,” U.S.S.G. § 1B1.1 cmt. n.l(E), We reject Beckham’s interpretation because it is “nonsensical to have an ‘applicable guideline range’ that is the result of a departure.” United States v. Pembrook, 609 F.3d 381, 385 (6th Cir. 2010).

III.

Beckham next argues that if Amendment 759 barred the district court from reapplying his criminal-history departure, the amendment violates the Constitution’s Ex Post Facto Clause. He notes that the Guidelines in use at the time of his crime permitted courts to reduce a sentence below an amended Guidelines range to reflect departures. See U.S.S.G. § lB1.10(b) (2010). Because the Sentencing Commission removed that discretion after he committed his crime, Beckham deduces an ex post facto violation.

“The ex post facto clause bars the application of greater criminal penalties than those which existed at the time a crime occurred.” United States v. Carter, 500 F.3d 486, 491 (6th Cir. 2007) (citing Johnson v. United States, 529 U.S. 694, 699, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000)). “The touchstone of [our] inquiry is whether a given change in law presents a ‘sufficient risk of increasing the measure of punishment attached to the covered crimes.’ ” Peugh v. United States, — U.S. -, 133 S.Ct. 2072, 2082, 186 L.Ed.2d 84 (2013) (quoting Garner v. Jones, 529 U.S. 244, 250, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000)). This includes a change in law that negatively affects a sentence reduction to which a prisoner was entitled at the time he committed his crime. See Weaver v. Graham, 450 U.S. 24, 33-34, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981). We review ex post facto challenges de novo. United States v. Welch, 689 F.3d 529, 532 (6th Cir. 2012).

We discern no ex post facto problem here. Although Beckham’s argument presents an issue of first impression in this circuit, every circuit to consider it has rejected it, and for good reason. The Ex Post Facto Clause forbids a change in law that increases the potential punishment for past conduct. See Peugh, 133 S.Ct. at 2081-82; Carter, 500 F.3d at 491. Amendment 759 does no such thing; it simply restricts the district court’s discretion to reduce a sentence pursuant to a future Guidelines amendment, which prisoners have no entitlement to, see Dillon v. United States, 560 U.S. 817, 828, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010). Thus, a decision by the Sentencing Commission to limit the class of defendants who may benefit from a future amendment “does not have any bearing on the ex post facto clause.” United States v. Diggs, 768 F.3d 643, 645 (7th Cir. 2014). The Courts of Appeals are in accord. See Diggs, 768 F.3d at 645-46; United States v. Thompson, 825 F.3d 198, 205-06 (3d Cir. 2016); United States v. Brown, 401 Fed.Appx. 994, 995 (5th Cir. 2010) (per curiam); United States v. Colon, 707 F.3d 1255, 1258-59 (11th Cir. 2013).

Beckham distinguishes these out-of-circuit cases on the grounds that they involved career offenders or defendants who benefited from variances, not departures. See Colon, 707 F.3d at 1257; Diggs, 768 F.3d at 645. But those are distinctions without a difference. Each case involved defendants who, like Beckham, sought to benefit from Guidelines amendments that were issued after they committed their crimes. But the courts found no ex post facto problem because the defendants were not entitled to the future amendment when their crimes occurred. See Diggs, 768 F.3d at 646; see also Colon, 707 F.3d at 1258. The same is true here.

Beckham’s reliance on Weaver v. Graham is also misplaced. In Weaver, the Supreme Court invalidated a Florida law that retroactively reduced a prisoner’s early release eligibility for good conduct. 450 U.S. at 32-36, 101 S.Ct. 960. Because early release time is “one determinant of [a defendant's prison term,” id. at 32,101 S.Ct. 960, constricting its availability “ma[de] more onerous the punishment for crimes committed before [the law’s] enactment,” id. at 36, 101 S.Ct. 960. Unlike Weaver, where the good-conduct provision was in place at the time of the defendant’s offense, the Sentencing Commission would not reduce the drug guidelines until 2014, years after Beckham committed his crime. Accordingly, neither Amendment 759 nor the drug-guidelines amendment could act as a “determinant” of Beckham’s prison term at the time he committed his crime. Id. at 32, 101 S.Ct. 960.

IV.

The district court lacked authority to reapply Beckham’s criminal-history departure in calculating his amended Guidelines range. Amendment 759’s removal of that authority presents no ex post facto violation. We accordingly AFFIRM.


source: Caselaw Access Project

author: DAMON J. KEITH, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Sontay T. SMOTHERMAN, Defendant-Appellant.
    No. 15-4331
    United States Court of Appeals, Sixth Circuit.
    Decided and Filed: September 29, 2016
    ON MOTION: Benjamin C. Glassman, United States Attorney’s Office, Cincinnati, Ohio, for Appellee.
    Before: KEITH, ROGERS and SUTTON, Circuit Judges.
   ORDER

DAMON J. KEITH, Circuit Judge.

The issue before the court is whether the notice of appeal filed by pro se prisoner Sontay Smotherman was timely. In criminal cases, a defendant must file a notice of appeal within fourteen days after entry of the judgment or order being appealed. Fed. R. App. P. 4(b)(1)(A). On November 17, 2015, the district court entered an order denying Smotherman’s “Motion to Correct Error” filed under Federal Rule of Civil Procedure 60(a) in his closed criminal case. (R. 353 at 1890). In order to meet the fourteen day deadline, any notice of appeal needed to be filed, by December 1, 2015. See Fed. R. App. P. 4(b), 26(a).

Smotherman’s notice of appeal, dated November 25, 2015, was officially filed by the district court on December 2, 2015, which was one business day after the appellate filing period had expired. (R. 360 at 1910). This filing was sent along with a signed, dated declaration titled “Proof of Service,” which directly referenced that it was enclosed with the notice of appeal and motion to correct. (R. 361 .at 1918). The “proof of service” declaration and “notice of appeal” were entered as separate docket entries. (R. 360 and 361). The proof of service declaration stated “with postage prepaid,” and “I declare under penalty of perjury that the foregoing is true and correct.” Id. The proof of service declaration was signed and executed on November 25, 2016. Id. It was date-stamped by the Clerk of the Court for the Southern District of Ohio Eastern Division on December 2, one day after the filing deadline of December 1. Id. The government filed a motion to dismiss, alleging that Smotherman’s notice of appeal was untimely on its face.

The prison mailbox rule has been long established, and we have recognized the typical rule that a pro se prisoner’s notice of appeal is deemed “filed at the time [pro se prisoner] delivered it to the prison authorities for forwarding to the court clerk.” Houston v. Lack, 487 U.S. 266, 276, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988); Tanner v. Yukins, 776 F.3d 434, 436 (6th Cir. 2015) (“notice of appeal was considered filed when it reached the mail-room”); see also Richard v. Ray, 290 F.3d 810, 813 (6th Cir. 2002) (prison mailbox rule for filing applies to civil complaints filed by pro se petitioners incarcerated at the time of filing).

This mailbox rule exception is supported by important public policy considerations that are unique to unrepresented, incarcerated individuals, and factor into our analysis of timely notices under the Federal Rules of Appellate Procedure, Rule 4(c).

“[T]he lack of control of pro se prisoners over delays extends much further than that of the typical civil litigant: pro se prisoners have no control over delays between the prison authorities’ receipt of the notice and its filing, and their lack of freedom bars them from delivering the notice to the court clerk personally.”

Houston, 487 U.S. at 273-74, 108 S.Ct. 2379.

Furthermore:

“[T]he pro se prisoner does not anonymously drop his notice of appeal in a public mailbox—he hands it over to prison authorities who have well-developed procedures for recording the date and time at which they receive papers for mailing and who can readily dispute a prisoner’s assertions that he delivered the paper on a different date.”

Id. at 275, 108 S.Ct. 2379.

Thus, we have been sensitive to the fact that prisoners without attorneys lack the same freedom to proactively ensure the timely delivery and receipt of documents as other litigants. In addition, there is less concern that pro se prisoners will fraudulently back-date documents because of the availability of corroborative evidence produced through the prison mailing system.

The Federal Rules of Appellate Procedure have memorialized the prison mailbox rule from Houston v. Lack through Rule 4(c). It provides that “If an inmate confined in an institution files a notice of appeal in either a civil or a criminal case, the notice is timely if it is deposited in the institution’s internal mail system on or before the last day for filing.” Fed. R. App. P. 4(c)(1). The government does not argue that Smotherman failed to. deposit his notice of appeal into the prison mail system before the December 1 deadline.

The government does, however, argue that Smotherman’s notice of appeal failed to conform to the third sentence of Rule 4(c)(1), which provides that “timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or by a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.” Id. There is some room for legal debate over whether and to what extent this rule allows for, or requires, either a declaration or a notarized statement in order to avail a pro se prisoner of mailbox rule protection. We reject the government’s argument that Smotherman was required to make a “declaration in compliance with 28 U:S.C. § 1746 or [produce] a notarized statement.” Id.

In cases where a prisoner has access to a legal mail system, and uses it, the notice of appeal is considered timely when “it is deposited in the institution’s internal mail system on or before the last day for filing.” Fed. R. App. P. 4(c)(1); Price v. Philpot, 420 F.3d 1158, 1165 (10th Cir. 2005). Under this reading, the requirements of “a declaration in compliance with 28 U.S.C. § 1746 or by a notarized statement,” Fed. R. App. P. 4(c)(1), are only applied to prisoners without access to a prison mail system. United States v. Ceballos-Martinez, 371-F.3d 713, 716 (10th Cir. 2004) (the word “may” in the third sentence of Fed. R. App. P. 4(c)(1) “references Congress’s intent to allow prisoners a filing option for those cases where a legal mail system is not available”). Any such declaration or notarized statement “must set forth the date of deposit and state that first-class postage has been prepaid.” Fed. R. App. P. 4(c)(1). In this case, Smother-man had access to legal mail, and the government has not raised the argument that Smotherman failed to use legal mail in this case. Thus, under the present version of Rule 4(c)(1), Smotherman was not required to comply with the enumerated methods set forth in Rule 4(c)(1).

A new amendment to Rule 4(c) is scheduled to take effect on December 1, 2016. This rule adopts the prison mailbox rule as previously drafted, and requires a notice of appeal to be accompanied by either:

(i) a declaration in compliance with 28 U.S.C. §■ 1746—or a notarized statement-setting out the date of deposit and stating that first-class postage is being prepaid; or (emphasis added).
(ii) evidence (such as a postmark or date stamp) showing that the notice was so deposited and that postage was prepaid;

Fed. R. App. P. 4(c).

The newly enumerated method of proving timeliness under the post-amendment version is “evidence.” This does not disrupt or change our reading of the previous version of the rule in terms of methods for proving timeliness. A declaration, notarized statement, or evidence will be required to accompany a notice of appeal after the amendment takes effect, regardless of what sort of mailing system a prisoner has access to. However, the appellant always held the burden of proving timeliness in an appeal under Rule 4. § 3950.1 Jurisdictional Effect of the Rule, 16A Fed. Prac. & Proc. Juris. § 3950.1, n. 59 (4th ed.).

Even if we were to hold that the pre-amendment version of Rule 4(c) did require a declaration or notarized statement, Smotherman did in fact make a declaration in compliance with 28 U.S.C. § 1746. District court docket entry #361 titled “Proof of Service” contains the following clause: ‘T declare under penalty of perjury that the foregoing is true and correct, executed on November 25, 2015.” (R. 361 at 1912). The declaration was signed “Sontay T. Smotherman.” Id. The declaration and the notice of appeal “set forth the date of deposit” as November 25, 2015 in accordance with Rule 4(c)(1), and the declaration says “with postage prepaid.” The “Proof of Service” docket entry was stamped by the Clerk of Court for the U.S. District Court of the Southern District of Ohio on December 2, 2015 at 1:41pm. Id. This is the exact same date and time of entry as docket entry #360 titled “Notice of Appeal.” (R. 360 at 1910).

A document filed pro se is “to be liberally construed.” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct.' 285, 50 L.Ed.2d 251 (1976)). The record shows that Smotherman complied with Rule 4(c)(1), even though his otherwise compliant declaration was not on the same page or directly under the title of “Notice of Appeal.” To read a pro se document so strictly as to dismiss an appeal merely because a technical filing requirement like a required declaration appeared above the wrong page number, or under the wrong header, would defy the dictates of law. Further, it would impress upon pro se appellants that access to justice is denied to those behind prison doors.

Smotherman’s declaration under penalty of perjury' was word-for-word identical to the -requirements of 28 U.S.C. § 1746,- and thus complies with one of the enumerated methods for proving a timely filed notice of appeal under Rule 4(c)(1). The declaration and the notice of appeal “set forth the date of deposit” as November 25, 2015 in accordance with Rule 4(c)(1).. Finally, the declaration says “with postage prepaid.” The aforementioned declarations were “enclosed” with the notice of appeal and motion to correct, and mentioned both directly, which supports that it was made concurrently and in conjunction with the notice of appeal.

Thus, Smotherman’s pro se motion and accompanying declaration on November 25 was “deposited in the institution’s internal mail system on or before the last day for filing,” and his declaration complied with one of the enumerated methods provided for proving timeliness under Rule 4(c)(1). The government’s motion to dismiss appeal as untimely is DENIED.


author: KETHLEDGE, Circuit Judge.

text:
    Kathryn A. PRICE, et al., Plaintiffs-Appellees, v. MEDICAID DIRECTOR, Office of Medical Assistance, et al., Defendants-Appellants.
    No. 15-4066
    United States Court of Appeals, Sixth Circuit.
    Argued: April 28, 2016
    Decided and Filed: September 30, 2016

      ' ARGUED: Jeffrey Clair, UNITED STATES' DEPARTMENT OF JUSTICE, Washington, D.C., Amicus Curiae. Jeffrey P. Jarosch, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellants. Eric M. Carlson, JUSTICE IN AGING, Los Angeles, California, for Appellees. ON BRIEF: Jeffrey Clair, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Amicus Curiae. Jeffrey P. Jarosch, Cheryl R. Haw-kinson, Amy R. Goldstein, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellants. Eric M. Carlson, JUSTICE IN AGING, Los Ange-les, California, Anna M: Rich, JUSTICE IN AGING, Oakland, California, Janet E. Pecquet, Peter L. Cássady, Ashley S. Burke, BECKMAN WEIL SHEPARD-SON LLC, Cincinnati, Ohio, for Appellees. Carol Rolf, ROLF GOFFMAN MARTIN LANG LLP, Cleveland, Ohio, William J. Browning, BROWNING & MEYER CO., LPA, Worthington, Ohio, for Amici Curiae.
    Before: BOGGS and KETHLEDGE, Circuit Judges; STAFFORD, District Judge.

       The Honorable William H. Stafford, Jr., Senior United States District Judge for the Northern District of Florida, sitting by designation.

   KETHLEDGE, Circuit Judge.

OPINION

Ohio offers assisted-living coverage to its Medicaid beneficiaries on a prospective basis. The plaintiffs here, a class of Ohio Medicaid beneficiaries, sued Ohio’s Medicaid administrators on the claim that federal law requires Ohio to cover certain assisted-living services retrospectively. The district court granted summary judgment to the plaintiffs. We reverse.

I.

A.

In 1965, Congress used its Spending Clause power to establish Medicaid. See U.S. Const, art. I, § 8, cl. 1. Through Medicaid, the federal government gives money to the States for the purpose of paying the medical costs of people “whose income and resources are insufficient to meet the costs of necessary medical services!;.]” 42 U.S.C. § 1396-1. The money comes with strings attached. “Like other Spending Clause legislation, Medicaid offers the States a bargain: Congress provides federal funds in exchange for the States’ agreement to spend them in accordance with congressionally imposed conditions.” Armstrong v. Exceptional Child Ctr., Inc., — U.S. -, 135 S.Ct. 1378, 1382, 191 L.Ed.2d 471 (2015).

Per Congress’s conditions, all State Medicaid plans must apply uniformly statewide, provide medical assistance equally “in amount, duration, [and] scope” among Medicaid beneficiaries, and establish a “single standard to be employed in determining” eligibility for medical assistance among different classes of beneficiaries. See 42 U.S.C. §§ 1396a(a)(l), (a)(10)(B), (a)(10)(C)(i)(III). In 1981, however, Congress recognized that these requirements needlessly diverted many Medicaid beneficiaries into impersonal and expensive long-term residence at hospitals, nursing homes, and intermediate-care facilities, without regard to whether less-intensive forms of care—such as assisted-living services—might meet an individual beneficiary’s medical needs. See Mary Jean Duckett & Mary R. Guy, Home & Community-Based Services Waivers, 22 Health Care Fin. Rev. 123 (2000).

Since 1981, therefore, Congress has allowed the Secretary of Health and Human Services to waive the uniformity and equal-provision conditions for States that pay the cost of “home or community-based services (other than room and board)[.]” 42 U.S.C. § 1396n(c)(l). Under an approved waiver plan, a State may provide “community-based” health services (which include assisted-living services) to Medicaid beneficiaries “with respect to whom there has been a determination that but for the provision of such services the [beneficiaries] would require the level of care provided in a hospital or a nursing facility ... the cost of which could be reimbursed under the State [Medicaid] plan.” Id. Per such waiver plans, therefore, States may provide beneficiaries with assisted-living services rather than more-intrusive (and expensive) nursing-home services. In return for this flexibility, the State must individually evaluate Medicaid beneficiaries regarding their “eligibility] for such home or community-based care[.]” Id. § 1396n(c)(2)(B)(iii). In addition, the State may cover only community-based services—such as assisted-living services—that have been provided “pursuant to a written plan of care[.]” Id. § 1396n(c)(l).

In 2006, the State of Ohio applied for and received a Medicaid waiver to provide assisted-living services to low-income seniors. Ohio Ctrs. for Assisted Living Br. at 6. Under Ohio’s Medicaid regulations,- a senior wishing to benefit from the waiver program must satisfy several criteria, including a determination by a county-level “passport” agency that the senior’s “health related needs ... can be safely met” in a state-approved assisted-living facility (as opposed, for example, to a nursing home). Ohio Admin. Code 5160-33-03(B)(9). Per Congress’s conditions on Medicaid funding through the assisted-living waiver, Ohio’s county-level passport agencies will enroll a senior into the waiver program only after the senior meets several eligibility requirements, including approval of-the senior’s “service plan” by the county passport agency. Ohio Admin. Code 173-38-03(C)(1)(b); see also Ohio Admin. Code 173-38-01(B). Ohio does not permit the disbursement of any Medicaid funding for waiver-program services rendered before the passport agency approves the service plan. See Ohio Admin. Code 173-38-03(C)(1)(c).

B.

1.

In 2008, Betty Hilleger—then suffering from dementia, heart problems, and arthritis—moved into The Lodge Care Center, an assisted-living facility in Cincinnati. During her first four years at The Lodge, Hilleger paid the center’s $4,300 monthly fee out of her own pocket. Then she ran out of money, and. her daughters began paying the center’s fee. In October 2012, Hilleger applied for Medicaid assistance through Ohio’s assisted-living waiver program. Soon thereafter, her local passport agency approved a service plan for her. Later, in January 2013, the agency determined that Hilleger was financially eligible for the waiver program. Medicaid then began paying for the costs of Hilleger’s care at The Lodge.

In April- 2012, Geraldine Saunders checked into a hospital and then a rehabilitation facility after suffering a fall. Her stress fractures and worsening dementia prevented her from returning home. In June 2012, she moved into the Close to Home assisted-living center in Ironton, Ohio. The same day, she applied for Medicaid assistance through Ohio’s assisted-living waiver program. Eighteen days later, the local passport agency' approved her service plan, determined that she was otherwise eligible for benefits under the program, and authorized the payment of Medicaid benefits. Saunders’s daughter paid the 18 days’ worth of assisted-living costs between the time Saunders entered Close to Home and the time her service plan was finalized.

2.

In February 2013, Hilleger and Saunders—acting through their daughters, Marilyn Wenman and Kathryn Price, respectively—sued the director of Ohio’s Medicaid program and the director of the Ohio Department of Aging in a putative class action in federal district court. The plaintiffs alleged that Ohio’s omissions of Medicaid coverage for the first 18 days of Saunders’s assisted-living costs, and for the first three months of Hilleger’s- assisted-living costs, were in violation of federal law. The plaintiffs sought declaratory and injunctive relief under 42- U.S.C. § 1983 on behalf of themselves and others similarly sitüated. They specifically alleged that, per 42 U.S.C. § 1396a(a)(34), Ohio must retroactively cover the assisted-living services for a waiver-program beneficiary for up to three months before the beneficiary applies for coverage under the program. Section 1396a(a)(34) requires States to offer Medicaid coverage to any beneficiary

for care and services included under the [Medicaid] plan and furnished in or after the third month before the month in which [the beneficiary] made application ... for such assistance if such [beneficiary] was (or upon application would have been) eligible for such assistance at the time such care and services were furnished.

The plaintiffs asserted that they were eligible for Medicaid assistance under Ohio’s waiver program from the moment each of them took up residence at their assisted-living centers, and that they were therefore entitled to retroactive benefits (ie., payments for services provided, before a passport agency’s approval of their service plans) under § 1396a(a)(34). The plaintiffs asked the district court to enter a declaratory judgment that Ohio’s waiver program violated § 1396a(a)(34). They also asked the district court to enjoin the defendants from “artificially delaying” payment of the plaintiffs’ assisted-living benefits, and to provide class members with written notice of their right to a state hearing as to their eligibility for retroactive benefits.

In.November 2014, the plaintiffs amended their complaint and added two more claims under § 1983: that the defendants failed to comply with the notice requirements of 42 U.S.C, § 1396a(a)(3); and that the defendants failed to provide Medicaid assistance with reasonable promptness, in violation of-42 U.S.C. § 1396a(a)(8).

In September 2015, the district court certified the plaintiffs’ proposed class of Medicaid beneficiaries and granted summary judgment to the plaintiffs. The court held that federal law required Ohio to “assess whether, at any time up to three months prior to [an] application for assisted living waiver benefits, the [applicant] met the financial eligibility benefits; whether the [applicant] had a need for intermediate or skilled level of care; and whether the [applicant] received supportive services consistent with the plan of care. If so, the State must grant retroactive assisted living waiver benefits in accordance with § 1396a(a)(34),” The court also held that the defendants had violated their duties under federal law to provide notice of the plaintiffs’ hearing rights and to provide Medicaid coverage reasonably promptly. In addition, the court declared that the defendants were obligated, going forward, to provide Medicaid assisted-living coverage to eligible beneficiaries for up to three months prior to the date of their applications. Finally, the court ordered the defendants to identify and provide all members of the class with written notice “of the- state administrative procedure” available “to have ■ defendants - determine whether or' not they may be eligible for additional days of Medicaid assisted living waiver coverage.”

This appeal followed.

II.

A.

The defendants ■ argue that the plaintiffs lack standing to sue and that the district court thus should have dismissed their complaint. We review de novo whether the plaintiffs have standing. See Stalley v. Methodist Healthcare, 517 F.3d 911, 916 (6th Cir. 2008).

Standing has three elements. First, the plaintiff must show that she has suffered an “injury in fact”: that is, some invasion of her legal interests that is both “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Second, she must show that there is a “causal connection” between her injury and the defendant’s actions. Id. Third, “it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Id. at 561, 112 S.Ct. 2130.

The defendants focus on the third element here, arguing that the plaintiffs lack standing because the relief awarded by the district court cannot redress the named plaintiffs’ injuries. As to the claim asserted in the plaintiffs’ original complaint, that relief took two forms: first, a declaration that the plaintiffs were entitled, to an award of assisted-living benefits for up to three months of assisted-living services provided before the date of their application for benefits, even though a- passport agency had not approved their service plans before that date; and second, as ancillary relief, notice to class members of their right to an administrative hearing under state law (a hearing that might in turn lead to an award of retroactive benefits for a beneficiary). The defendants argue that neither form of relief can do the named plaintiffs any good, because (under the Eleventh Amendment, as discussed below) the plaintiffs cannot use the declaration to obtain an award of damages in federal court; instead, they can use it only to obtain an award of benefits in a state administrative hearing as to whether .they were entitled to more benefits than they in fact received. And under state law that hearing is available for only a limited time: Ohio gives Medicaid beneficiaries 90 days to request a state administrative hearing to challenge or adjust a Medicaid benefits determination. See Ohio Admin. Code 5101:6-3-02(B)(2). Once that window closes, therefore, even a declaratory judgment that Hilleger and-Saunders-were entitled to additional benefits is useless to them as a practical matter; because they have no forúm in which to wield it. And for both Hilleger and Saunders, as of this writing, that 90-day window (which began on the dates the State notified them of their award of benefits) passed long ago. Moreover, neither named plaintiff is likely to seek assisted-living benefits in the future: Hilleger passed away in September 2013 after the initiation of this lawsuit, and Saunders currently lives in a nursing home, with1 no sign that she will ever return to an assisted-living facility. Thus, the relief awarded by the district court—the declaration of entitlement to. additional benefits, and notice of a state hearing in which the plaintiffs could seek an award of those benefits—does not redress the plaintiffs’ putative injuries. Hence the defendants argue that the plaintiffs lack standing.

The problem with that argument is that Hilleger’s 90-day window to seek a hearing was still open when the plaintiffs filed their complaint in this case. (Saunders’s 90-day window was closed by then.) And the fact that Hilleger’s window remained open," in turn, implicates a rule unique to class actions: in cases where the claims asserted on behalf of the class are “so inherently transitory” that the named plaintiffs claims will “expire” before the district court can even rule on a motion for class certification, the plaintiff is deemed to have standing to sue—notwithstanding that her claim has “expired,” ie., that the relief available for the claim can no longer do her any good—so long as she had standing to sue “at the time the ... complaint was filed[.]” Cty. of Riverside v. McLaughlin, 500 U.S. 44, 51-52, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991). (The idea behind the rule is that, if the district court had granted a motion for class certification before the plaintiffs claim expired, the unexpired claims of other class members would then carry the torch for standing purposes; and it is hardly the plaintiffs fault that the district court could not rule upon that motion before her “inherently transitory” claims expired. See Genesis Healthcare Corp. v. Symczyk, — U.S. -, 133 S.Ct. 1523, 1531, 185 L.Ed.2d 636 (2013).) Hilleger meets that test here—at the time she filed her complaint, 60 days of her 90-day period to seek a hearing still remained—and thus she does have standing to assert the claim set forth in her original complaint.

But the same is not true of the claims asserted in the amended complaint. We determine standing for each plaintiff on a claim-by-claim basis; “standing is not dispensed in gross.” Fednav, Ltd. v. Chester, 547 F.3d 607, 614 (6th Cir. 2008). The plaintiffs have standing to assert only the claims they had standing to assert when the claims themselves were first pled. Lynch v. Leis, 382 F.3d 642, 647 (6th Cir. 2004). And by November 2014—when the plaintiffs first pled, in them amended complaint, that the defendants breached their duties under 42 U.S.C. §§ 1396a(a)(3) and 1396a(a)(8)—even Hilleger had long since run out of time to request a State Medicaid hearing. Thus, at that time, Hilleger’s claims could not be redressed by any of the relief she sought. Both Hilleger and Saunders therefore lack standing to sue on the claims asserted for the first time in their amended complaint.

In sum, the plaintiffs have standing to pursue only their February 2013 claim that the defendants failed to comply with federal law by refusing to award retroactive assisted-living benefits under 42 U.S.C. § 1396a(a)(34). The district court erred when it concluded that the plaintiffs have standing to sue on their other claims.

B.

The defendants argue that the Eleventh Amendment bars the plaintiffs’ remaining claim for relief. We review de novo the defendants’ entitlement to sovereign immunity under the Eleventh Amendment. Babcock v. Michigan, 812 F.3d 531, 533 (6th Cir. 2016). Under that Amendment, the plaintiffs may not sue a state in federal court for “retroactive monetary relief.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 103, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984).

Yet the federal courts must also ensure that state officers meet their obligations under federal law. Thus, a federal court may, without violating the Eleventh Amendment, issue a prospective injunction against a state officer to end a continuing violation of federal law. See Ex parte Young, 209 U.S. 123, 159, 28 S.Ct. 441, 52 L.Ed. 714 (1908). More to the point here, in suits concerning a state’s payment of public benefits under federal law, a federal court may enjoin the state’s officers to comply with federal law by awarding those benefits in a certain way going forward— even if the court may not order those officers to pay out public benefits wrongly withheld in the past. See Edelman v. Jordan, 415 U.S. 651, 667-68, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). And the court may order state officers to provide recipients of public benefits with notice of the court’s prospective injunction (to award benefits in a certain way going forward) and of the beneficiaries’ right to pursue state administrative remedies to obtain benefits in accordance with that injunction—even if that notice “will lead inexorably to the payment of state funds for retroactive benefits.” Quern v. Jordan, 440 U.S. 332, 347, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979).

Here, the plaintiffs sought (and the district court ordered) prospective relief in the form of an injunction directing the defendants, Ohio’s Medicaid administrators, to cease their practice of providing waiver-program benefits only for the period following an eligibility determination, in purported violation of ■ 42 U.S.C. § 1396a(a)(34). That is the kind of prospective injunctive relief that Ex parte Young squarely permits. The district court also ordered the defendants to notify class members of the court’s injunction and of their right to use Ohio’s administrative procedures to obtain any past Medicaid benefits to which the plaintiffs might be entitled under the injunction. That makes this order no different than the one the Supreme Court permitted in Quern. There, the order “simply inform[ed] class members that their federal suit [was] at an end, that the federa] court [could] provide them with no further relief, and that there [were] existing state administrative procedures which they may wish to pursue.” Quern, 440 U.S. at 349, 99 S.Ct. 1139. The district court’s order here provides the same kind of notice the order in Quern did. Thus, the district court’s order did not abridge Ohio’s sovereign immunity.

The defendants argue that the district court’s order violates the Eleventh Amendment because the order might be construed as commanding the defendants to “redo past eligibility determinations” or to make hearings available to class-members who have no right to a hearing under state law. Defs.’ Br. at 19-25. But we do not read the order that way. The court ordered the defendants to “advis[e] [the plaintiffs] of the state administrative procedure, compliant with due process requirements, .available if [the plaintiffs] desire to have defendants determine whether or not they may be eligible for additional days of Medicaid assisted living waiver coverage.” In our view that order does not require anything other than notice of currently available state procedures. That notice might result in new eligibility determinations for class members who are still entitled to a hearing under state law, and thus might ultimately lead to payment of benefits that are past due. But that result is consistent with Quern. The Eleventh Amendment therefore does not bar the plaintiffs’ claim to injunctive relief.

C.

Finally, the defendants argue that the district court misconstrued 42 U.S.C. § 1396a(a)(34), which they contend does not require Ohio to pay benefits for assisted-living services rendered before a beneficiary obtains approval of his service plan. On this point the United States supports the defendants as amicus curiae, arguing that federal law in fact prohibits Ohio from offering Medicaid payments for assisted-living services that are rendered before a beneficiary’s service plan is approved.

We review de novo the district court’s interpretation of § 1396a(a)(34). See Max Trucking, LLC v. Liberty Mut. Ins. Corp., 802 F.3d 793, 799 (6th Cir.2015). Under § 1396a(a)(34), states must offer Medicaid assistance to all beneficiaries

for care and services included under the [Medicaid] plan and furnished in or after the third month before the month in which [the beneficiary] made application ... for such assistance if such [beneficiary] was • (or upon application would have been) eligible for such assistance at the time such care and services were ■..furnished,,

(emphasis added). ' Thus, under § 1396a(a)(34), the plaintiffs were entitled to Medicaid reimbursement for assisted-living services furnished during the three months prior to their applications only if they were eligible for an award of those benefits “at the time” those services “were furnished.” Id.

Meanwhile, under 42 U.S.C. § 1396n(c)(l), Ohio can spend Medicaid funds only: on assisted-living services that are provided “pursuant to a written plan of care[.]” Accordingly, under Ohio’s implementing regulations, a prospective Medicaid beneficiary becomes “eligible” for assisted-living benefits only after, among other things, a state passport agency approves an individualized service plan for the beneficiary. Ohio Admin. Code 5160-33-03(B)(9); see also Ohio Admin. Code 173-38-03(C)(l)(b). The plaintiffs were thus ineligible for Medicaid assisted-living benefits before a state passport agency approved their respective service plans. The district court was mistaken, therefore, to hold that the plaintiffs were entitled to reimbursement for assisted-living services that were provided before their respective service plans were approved. Quite the contrary: as the United States points out, the defendants would have violated federal law if they had used Medicaid funds to pay for assisted-living services provided before approval of a service plan.

Yet the plaintiffs argue (and the district court held) that the phrase “pursuant to[,]” as used in § 1396n(c)(l), is synonymous with “consistent with”; and thus, in the plaintiffs’ view, they are entitled to reimbursement for assisted-living services provided before approval of their service plans, so long as those benefits were “consistent with” the plans later approved. The short answer to that argument is that nobody uses the phrase “pursuant to” that way. A longer answer is that “pursuant to” is not defined by the Medicaid statute, so we construe it according to its ordinary meaning, as shown by the phrase’s “normal usage[.]” Freeman v. Quicken Loans, Inc., — U.S.-, 132 S.Ct. 2034, 2042, 182 L.Ed.2d 955 (2012). The phrase is normally used in legal contexts; the leading legal dictionary defines “pursuant to” as “[i]n compliance with[,]” “[a]s authorized by[,]” .or “[i]n carrying out[.]” Black’s Law Dictionary 1356 (9th ed. 2009). The Medicaid statute itself routinely uses “pursuant to” in precisely this way. See, e.g., 42 U.S.C. § 1396a(a)(39) (noting that state Medicaid plans “shall exclude any specified individual or entity from participation in the program under the State plan for the period specified by the Secretary [of Health and Human Services], when required by him to do so pursuant to section 1320ar-7 or section 1320ar-7a of this title”)-, § 1396a(r)(l)(B)(i)(II) (“a State veterans home with respect to which the Secretary of Veterans Affairs makes per diem payments for nursing home care pursuant to section 1741(a) of Title 38”); § 1396b(u)(l)(E)(i) (“eligibility therefor was determined exclusively by the Secretary [of Health and Human Services] under an agreement pursuant to section 1383c of this title”).

Justice Jackson likewise used “pursuant to” in precisely this sense, when he wrote that the President’s “authority is at its maximum” when he “acts pursuant to an express or implied authorization of Congress.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635, 72 S.Ct. 863, 96 L.Ed. 1153 (1952) (Jackson, J., concurring). And for purposes of Justice Jackson’s rule, and otherwise, the President cannot act “pursuant to” a. statute that Congress has not yet passed. Nor can a police officer search a home “pursuant to” a warrant she obtains after the search; the Fourth Amendment’s warrant requirement would be meaningless if an officer could search first, then obtain a warrant, and then claim she acted “pursuant to” it simply because the search was consistent with the warrant’s terms.

“Pursuant to” is a narrower term than “consistent with.” A decision of the Supreme Court, for example, might be consistent with a decision of our court; but none of the Supreme Court’s decisions are made “pursuant to” ours. “Pursuant to” means more than mere consistency; it means, in addition, that an action is directs ed or permitted by the authority by which the action is taken. And in no case is the Supreme Court acting at our direction or authority.

That assisted-living services are “consistent with” a service plan, therefore, does not mean that the services were provided “pursuant to” the plan. To be provided “pursuant to” a plan, the services must be authorized by the plan. And just as a warrant cannot authorize a search-before the warrant is issued, neither can a plan authorize the provision of assisted-living benefits before the plan is approved. Under Ohio’s waiver program and the relevant provisions of the Medicaid Act, therefore, assisted-living benefits can be provided “pursuant to a written plan of caret,]” 42 U.S.C. § 1396n(c)(l), only after a state passport agency approves the plan. The defendants thus complied with federal law, rather than violated it, when they declined to use Medicaid funds to pay for assisted-living services that were provided before a state passport agency approved a plan of care for the recipient of those services.

The plaintiffs’ remaining argument is that the defendants’ policy renders the retroactivity requirement of § 1396a(a)(34) a dead letter. But under Ohio’s Medicaid regulations, a senior, can seek approval of a service plan before making an application for assisted-living benefits. If a senior first contacts the local passport agency, she may receive “an in-person assessment to determine eligibility” for the assisted-living program before she submits an application for Medicaid benefits. Ohio Admin. Code 5160-33-04(A)(2). Thus, so long as an applicant anticipates in advance that she might want Medicaid coverage for assisted-living services, she can get a written plan of care approved in advance of her application. That way, if she is not yet financially eligible for Medicaid—and wants to make sure there.is no “coverage gap” between the time she becomes financially eligible and the time her application is approved—she can ensure that a service plan is in place in advance, and thereby receive benefits retroactive to the time of application if and when she applies, as provided under § 1396a(a)(34).

The Ohio Centers for Assisted Living, appearing as amicus curiae in support of the plaintiffs, dispute this point. They contend that submission-of an application to the Ohio Department of Job and Family Services for assisted-living benefits constitutes an application for Medicaid, and that it is therefore impossible to obtain pre-application approval of a service plan. See Ohio Ctrs. for Assisted Living Br. at 20. But amicus neglects to address the regulatory provision that allows seniors to receive an “in-person [eligibility] assessment” from the local passport agency before making an application with the Department of Job and Family Services. Ohio Admin. Code 5160-33-04(A)(2). And that provision, on its face, permits seniors to obtain service-plan approvals before they apply for benefits. Ohio has thus provided a mechanism that permits Medicaid coverage for assisted-living services to be rendered before approval of the beneficiary’s application, in compliance with § 1396a(a)(34). Moreover, while the defendants’ policy does not' abridge § 1396a(a)(34), the plaintiffs’ interpretation of these provisions would abridge the plain terms of § 1396n(c)(l), by stripping the phrase “pursuant to” of its core meaning. Thus, as the United States has long recognized, § 1396n(c)(l) permits Medicaid funding only for assisted-living services that are authorized by a preceding service plan. See U.S. Br. at 16-17.

The district court erred when it held that § 1396a(a)(34) requires Ohio to pay for assisted-living services rendered before the approval of a Medicaid beneficiary’s service plan. Given that holding, we choose not to address the question whether the district court properly certified the class. Instead we simply vacate the court’s certification order.

The district court’s judgment is reversed, and the case remanded with instructions to' enter judgment in favor of the defendants.