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April 5, 1982

Joseph BERTRAND, et al., Petitioners,
Charles C. SAVA, et al., Respondents. Laissez-Moi VIGILE, et al., Petitioners, v. Charles C. SAVA, et al., Respondents

The opinion of the court was delivered by: CARTER

In an opinion dated March 5, 1982, familiarity with which is assumed, the court found that by discriminating against eight Haitian applicants, respondent Sava failed to exercise properly his discretionary authority to grant parole to excludable aliens. Respondent was given 10 days to demonstrate how any or all of the petitioners pose a risk of absconding different from the risk presented by similar aliens paroled by Sava. He was instructed to scrutinize petitioners under the guidelines with which other aliens were treated.

During the 10-day interim, petitioners brought by order to show cause a motion to amend the petition by adding class action allegations, to certify the proposed class and for summary judgment on behalf of the class. All Haitians transferred from Miami to the SPC on July 18, 1981 and who remain in respondent's custody fall within petitioners' class definition. At a March 12 hearing, the court set a briefing schedule and announced that the class issues and the government's response to the original order would be considered simultaneously.


 Petitioners assert that their amended petition is permitted by Rule 15(a), F.R.Civ.P., and mandated by Rule 15(b). Respondent labels Rule 15(a) amendment untimely and prejudicial, but takes no position with respect to Rule 15(b).

 Rule 15(a) allows amendment "by leave of court" at any time during the course of litigation. See Foman v. Davis, 371 U.S. 178, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962) (amendment allowed after judgment entered dismissing the complaint); Clay v. Martin, 509 F.2d 109 (2d Cir. 1975); Wright & Miller, Federal Practice & Procedure: Civil ยงยง 1484, 1488 (1971). Such leave "shall be freely given when justice so requires." Rule 15(a), F.R.Civ.P. This mandate is to be heeded in the absence of certain exigent circumstances-"undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party ..., etc." Foman v. Davis, supra at 182, 83 S. Ct. at 230.

 Delay alone cannot defeat a Rule 15(a) motion to amend. International Bank v. Price Waterhouse & Co., 85 F.R.D. 140, 142 (S.D.N.Y.1980) (Lasker, J.); Bernstein v. National Liberty International Corporation, 407 F. Supp. 709, 714 (E.D.Pa.1976) (eight month delay before moving to add class action allegations is not a ground for denying motion to amend). Opposition to such a motion must focus instead on any prejudice that would accrue if it were granted. Bernstein, supra at 714. Thus, where class plaintiffs sought to amend their complaint to add an "inherently distinct" class which would "unjustifiably interject entirely disparate issues into and tend to obfuscate" the main lawsuit, the liberality of Rule 15(a) was overcome. Woe v. Mathews, 408 F. Supp. 419, 429-31 (E.D.N.Y.1976), aff'd, 562 F.2d 40 (2d Cir. 1977), cert. denied, 434 U.S. 1048, 98 S. Ct. 895, 54 L. Ed. 2d 799 (1978). Similarly, after 5 years of litigation, and on the eve of settlement, amending a derivative action to include class action allegations "would dramatically alter the nature of th(e) lawsuit, (and) create unfair surprise to all of the Defendants." Clark v. Lomas & Nettleton Financial Corporation, 79 F.R.D. 641, 647-8 (N.D.Tex.1978), vacated and remanded, 625 F.2d 49 (5th Cir. 1980), cert. denied, 450 U.S. 1029, 101 S. Ct. 1738, 68 L. Ed. 2d 224 (1981). Justice did not require the amendments sought in either case.

 Transforming an individual action into a class action does not, in and of itself, create the type of prejudice sufficient to deny a motion to amend. See Bernstein, supra at 714. Moreover, the instant motion suggests none of the indicia of prejudice which have resulted in denials of leave to amend. While the case is in an advanced procedural posture, it is only four months old. Throughout its short lifetime, both sides have cooperated admirably with an expedited schedule, managing to produce masses of paperwork while attending ongoing hearings. This history belies any claim of bad faith or dilatory motive on petitioners' part, and no such allegation is made.

 Nor can respondent contend that a class action will present it with issues not involved in the original lawsuit. Much of the evidence introduced at the evidentiary hearing related to all 86 Haitians transferred from Florida to the SPC in Brooklyn. Statistics concerning the entire group were discussed by witnesses for both petitioners and respondent, *fn1" as were the conditions under which Haitians are confined. *fn2" There was, in fact, very scant testimony focused on the eight individual petitioners. *fn3" On all matters central to the findings of group-based decision making and discrimination, sufficient evidence is before the court with respect to all Haitians detained at the SPC.

 Respondent argues that the proposed amendment is prejudicial to its right to a full hearing on the merits with respect to the class members. This proposition, though arguably relevant to the pending summary judgment motion, is inapposite to the issue at hand. Amendment itself does not assure the class members the relief won by petitioners, but merely the opportunity to seek certification and then summary disposition of the amended petition. The government's claim is misplaced, in any event, because it ignores the significant amount of evidence already produced on behalf of the purported class members.

 Discretionary leave to amend is granted petitioners. Despite the advanced stage reached by the underlying action, respondent has failed to demonstrate that prejudice will result from amendment. Due to the identity of issues and circumstances among all Haitian detainees and the uniquely generalized tone of the prior proceedings, the interests of justice demand that petitioners be allowed to prosecute the action on behalf of similarly situated Haitian detainees.

 To deny the motion would entail needless waste and a disregard of effective judicial administration. See Mullaney v. Anderson, 342 U.S. 415, 417, 72 S. Ct. 428, 429, 96 L. Ed. 458 (1952) (allowing the addition of new plaintiffs, under Rule 21, F.R.Civ.P., immediately before Supreme Court review); Hicks v. Crown Zellerbach Corporation, 49 F.R.D. 184, 196-7 (E.D.La.1967) (granting leave to amend a class action to expand the class immediately before trial). The amendment in this case can be analogized to the class enlargement permitted in Hicks because the specific issues of abusive and discriminatory adjudications already before the court will remain constant while the group of persons affected by a ruling expands. See Hicks, supra at 197. Given the non-particularized nature of proof at the evidentiary hearing, it would be distinction without difference to emphasize the absence of an underlying class action.

 The motion to amend is granted, alternatively, under Rule 15(b). As noted above, both respondent and petitioners introduced at trial evidence of the treatment of all 86 Haitians detained in Brooklyn. The purported class members all were among that group of 86. Sava's generalized descriptions of petitioners apply equally to all 86, and his comparative factor analysis relates to all aliens requesting parole. Except for the immigration applications and Sava's responses thereto, all the important testimony and exhibits concerned the entire proposed class. The lawsuit having been treated throughout its course as a class action, only the tyranny of formalism could support denial of the motion under Rule 15(b).


 While the precise class action provisions of Rule 23, F.R.Civ.P., do not apply to habeas corpus proceedings, a federal court may permit multi-party habeas actions similar to the class actions authorized by the Rules of Civil Procedure when the nature of the claim so requires. United States ex rel. Sero v. Preiser, 506 F.2d 1115, 1125 (2d Cir. 1974), cert. denied, 421 U.S. 921, 95 S. Ct. 1587, 43 L. Ed. 2d 789 (1975). Considerations of judicial economy and fairness argue persuasively for the construction of a procedure analogous to the class action to be employed by incarcerated persons sharing certain complaints about the legality of their imprisonment. Id. at 1126; Nguyen Da Yen v. Kissinger, 528 F.2d 1194, 1202-4 (9th Cir. 1975); Fernandez-Roque v. Smith, 91 F.R.D. 117, 122 (N.D.Ga.1981). Such initiative and flexibility are essential to modern use of the writ in order to cut through barriers of form and insure that miscarriages of justice are ...

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