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July 14, 1986

Lydia Lewis, et alia, Plaintiff,
GEORGE GROSS, individually and as Commissioner of the New York City Department of Social Services, et alia, Defendants

The opinion of the court was delivered by: SIFTON


CHARLES P. SIFTON, United States District Judge.

This class action is brought by Lydia Lewis and eight other named class representatives against the defendants, seeking a permanent injunction and declaratory judgment authorizing the payment of Medicaid benefits to "non-legal permanent resident" ("non-LPR") aliens in New York State. The matter is before the Court on the following motions: (1) the federal government's motion to decertify the class under Rule 23 of the Federal Rules of Civil Procedure, (2) plaintiff's motion to amend the complaint and modify the class definition, and (3) the motion of five aliens to intervene pursuant to Rule 24(b)(2) and be designated additional class representatives.

 Class Decertification and Modification Motions

 The plaintiff class in this case is drawn from a pool of individuals who live in New York State and who are colloquially referred to as "illegal aliens." More accurately, these individuals are those who have not been granted legal permanent resident status, i.e., they have no "green card," granted according to the standards of the Immigration and Naturalization Service ("INS"), although they have, for all practical purposes, established permanent residence in this country. According to the 1980 census, the number of such non-LPR aliens in New York State is estimated at 234,000. Although the majority of non-LPR aliens nationwide are said to have originally come from Mexico, those living in New York State are said to come from many different parts of the world. According to plaintiffs, most of them now live in New York City. Plaintiffs offer an astounding general description of the group's immigration statuses. Over 77% of the New York State non-LPR aliens counted in the 1980 census had been in the country for more than five years and over 44% had been here for more than ten years. In addition, unlike those in the southern or western parts of the country, the non-LPR aliens in New York State are said to be more likely to be persons who entered with visas and were therefore inspected by INS before entering the United States. Many non-LPR aliens are said to be employed as food processors, dishwashers, hospital aids and in other occupations involved in delivery or handling of food. The non-LPR alien population is generally comprised of young adults under 35 years old. Many non-LPR aliens in New York have close U.S. citizen or legal permanent resident relatives including spouses, children, siblings, and parents and many are in the process of applying for legal permanent resident status.

 Nine New York non-LPR aliens supposedly in need of medical care and Medicaid assistance brought the instant action. They were originally certified by the court as a plaintiff class on January 16, 1981, (Weinstein, Ch.J.) as "all aliens residing in the State of New York who have been denied Medicaid on the basis of their alienage." By order of October 15, 1981, the class definition was modified to add the requirement that the aliens qualifying for the class be living in New York "under color of law." The class was thus redefined to include "all aliens residing in New York State under color of law who have applied or attempted to apply for Medicaid benefits." Presumably, this definition also carried over from the previous class definition the requirement that plaintiffs "have been denied Medicaid on the basis of their alienage." This requirement, however, should be coordinated with the expansion of the definition to include not only actual Medicaid applicants but also those who "have attempted to apply" and who "have been or would be denied Medicaid on the basis of their alienage." Thus, the full class definition would include "all aliens residing in New York State under color of law who have applied or attempted to apply for Medicaid but have been or would be denied Medicaid on the basis of their alienage."

 Plaintiffs claim that they consented to the 1981 modification of the class definition to include the "under color of law" requirement because of their "initial misreading" of the new amendments to the Medicaid statute enacted in the Onmibus Budget Reconciliation Act, Pub. L. No. 87-35. They now seek to amend the class definition to delete this under color of law requirement. None of the defendants has opposed the motion, but the federal defendant has instead filed the instant motion to narrow the class definition or decertify the class altogether pursuant to Rule 23(c)(1).

 The Secretary first argues for decertification because the minimum requirements for the maintenance of the suit as a class action have not been satisfied, as set forth in Rule 23(a) of the Federal Rules of Civil Procedure. The Secretary appears to be arguing that the first three of these requirements, numerosity of class members, commonality, and typicality of claims, have not been satisfied. An examination of the claims of the named plaintiffs and those of the named class, however, suggests otherwise.

 According to the Secretary, the claims of the named plaintiffs are not typical of and do not raise issues of law or fact common to the class because there are numerous types of immigration status that are not represented among the named plaintiffs. Specifically, no named plaintiff has filed for an application for permanent resident status at a U.S. consular office abroad, had approved an application for permanent resident status at a U.S. consular office abroad, applied for an adjustment of status, been granted an adjustment of status, is eligible for "registry" status because of continuous residence in the United States since before June 30, 1948, received deferred action status, resided in the United States under an INS order of supervision, resided in the United States under an INS grant of voluntary departure, had a visa extended for medical reasons, had a private bill introduced on his behalf in Congress, been paroled into the United States, been admitted as a "conditional entrant" into the United States, been granted refugee status, applied for asylum, been granted asylum, applied for withholding of deportation pursuant to 8 U.S.C. § 1253(h), been granted withholding of deportation pursuant to 18 U.S.C. § 1253(h), been allowed to remain in the United States as a "Cuban/Haitian entrant (status pending)," or is a child. Therefore, the argument continues, the named plaintiffs' claims are neither typical of nor common to those of non-LPR aliens in these categories of status under our immigration laws.

 Even assuming the accuracy of the Secretary's list of unrepresented categories of immigration status, *fn1" the Secretary's arguments fail because none of the Rule 23(a)(2) prerequisites has been interpreted with the narrowness suggested by the Secretary's argument. The commonality requirement, for example, merely states that there must be "questions of law or fact common to the class," Rule 23(a)(2), and a single issue common to all class members is sufficient to satisfy the requirement. In McCoy v. Ithaca Housing Authority, 559 F. Supp. 1351, 1355 (N.D.N.Y. 1983), the court stated that "it is clear that not all questions of law and fact among the putative class must be identical. According to Newburg, '[t]he (a)(2) prerequisite requires only a single issue common to the class.' 1 H. Newburg, § 1110f at 184." The named plaintiffs in the instant case clearly raise more than one significant issue of law common to the whole class: for example (1) whether the Medicaid statute authorizes the alienage restriction imposed by the Secretary's regulation, (2) whether the alienage restriction violates the U.S. Constitution, and (3) what is the proper interpretation of the alienage requirement "permanently residing under color of law." Thus, the commonality requirement is satisfied.

 The Rule 23(a)(3) prerequisite of typicality assures that the named representatives' claim raises these common questions on behalf of the class. Zeffiro v. First Pennsylvania Banking and Trust Company, 96 F.R.D. 567, 569 (E.D. Pa. 1983). A named plaintiff's claim is "typical" within the meaning of the rule if it arises from the same course of conduct that gives rise to the claims of other class members and is based on the same legal theory and if his interests are not antagonistic to those of the class. In re Alcoholic Beverages Litigation, 95 F.R.D. 321, 324 (E.D.N.Y. 1982). Most importantly, the Court there noted:

 "There has been general agreement that the existence of varying fact patterns to support the claims of individual class members does not mandate a finding of a lack of typicality, as long as the claims arise out of the same legal or remedial theory. Since the claims here are based on what appears to be the identical theory and since there are no demonstrated antagonistic interests between the representative parties and the class members, the typicality requirement is satisfied."

 Id. at 324 (citations omitted), see Calkins v. Blum, 511 F. Supp. 1073 (N.D.N.Y. 1981), aff'd, remanded, 675 F.2d 44 (2d Cir. 1982).

 The claims of the named plaintiffs and the class in the present case both rest on identical legal theories. All nine named plaintiffs and class members were at some time non-LPR aliens unable to pay for necessary medical care but ineligible for Medicaid under the Secretary's regulation. They all base their claim for benefits on the three legal arguments listed above, which supposedly demonstrate the invalidity of the Secretary's alienage restriction.

 For purposes of the typicality requirement, it is not significant that the named plaintiffs and some class members may have differing immigration status, since all plaintiffs allege that their INS designation improperly prevented their receiving Medicaid. Under the plaintiffs' first two arguments against the alienage restriction, that it violates the Medicaid statute and the federal constitution, their immigration statuses are irrelevant because they argue that alienage can never bar Medicaid coverage. Under plaintiffs' third argument, that the Secretary's interpretation of the "permanently residing under color of law" requirement is arbitrary and capricious, their differing immigration status is also unimportant because plaintiffs all claim that under established precedents the meaning of the phrase is expansive and elastic enough to include them all. Plaintiffs will not face disagreements on which immigration designations fit within the meaning of "under color of law." Rather, they all claim that case law has established that aliens residing under color of law are those residing in New York on a continuing basis with the knowledge and acquiescence of INS.

 Furthermore, plaintiffs argue convincingly that "the fact that aliens are eligible for multiple alien statuses but apply for those statuses serially gives all aliens an interest in having many alien statuses established as examples of permanently residing under color of law for Medicaid eligibility." Plaintiffs illustrate the argument with the example of Lydia Lewis:

 "Lydia Lewis' total situation makes her eligible for multiple immigration statuses. She entered the U.S. as a child sixteen years ago. She is the wife of a U.S. citizen, the mother of three U.S. citizens, and the daughter of a U.S. citizen. She is eligible for preferential relative status as her husband's wife and her mother's daughter. Her relative petition has been approved and she is eligible for an an applicant for adjustment of status. As such, she is eligible for voluntary departure. As an alien living in the U.S. for more than seven years with dependent citizen children, a citizen spouse and mother, she is a prime candidate for suspension of deportation. She has been granted employment authorization. Her length of residence and close relationship with U.S. citizens makes her a candidate for deferred action or a lengthy stay of deportation, which can be transferred into an order of supervision. Her eligibility for these statuses gives her a direct interest in having them established as examples of statuses which satisfy Medicaid eligibility requirements. Clearly, her interests are not antagonistic to having these and other statuses established as examples of permanently residing in the U.S. under color of law."

 Thus, because the named plaintiffs and the class members all rely on "identical theor[ies]" and "there are no demonstrated antagonistic interests" between them, In re Alcoholic Beverages Litigation, supra, 95 F.R.D. at 324, the typicality requirement is satisfied.

 The federal defendant also argues that the numerosity requirement has not been satisfied. It argues primarily that the census report upon which plaintiffs rely addresses only the question of how many non-LPR aliens without current visas presently live in New York. But it does not show anything, defendant argues, with respect to the class, i.e., aliens permanently residing in New York under color of law who have applied or have attempted to apply for Medicaid. Thus, the report fails to show, as Rule 23(a)(3) requires, that plaintiffs are so numerous that joinder is impractical.

 Again the federal defendant cites no cases supporting its strict view of the numerosity requirement. It has been long recognized that there is no specific number of class members necessary to sustain a class action, Cypress v. Newport, 375 F.2d 648 (4th Cir. 1967); Stoner v. Miller, 377 F. Supp. 177 (E.D.N.Y. 1974), and no precise count of the number of class members is required. In determining whether the numerosity requirement is met, the Court may consider reasonable inferences drawn from the facts. Senter v. General Motors Corp., 532 F.2d 511, 523 (6th Cir.), cert. denied, 429 U.S. 870, 50 L. Ed. 2d 150, 97 S. Ct. 182 (1976). Reliance upon such inferences is particularly appropriate when the information about the exact numbers is within the defendant's control. Folsom v. Blum, 87 F.R.D. 443 (S.D.N.Y. 1980).

 In the present case plaintiffs allege that they attempted through discovery to get from defendant the number of New York aliens denied Medicaid on the basis of their alien status, but their efforts were unsuccessful. Because such information is within the control of some of the government defendants and not readily accessible to plaintiffs, resort to inferential reasoning is particularly appropriate here.

 Plaintiffs computed their estimate of the size of the class by looking first at the number of New York State residents already receiving Medicaid. According to the 1979-80 report of the New York State Department of Social Services, 1,322,352 people, or 7% of the 17,558,072 residents of the State of New York, already receive Medicaid. If this 7% figure is applied to the estimated 234,000 total number of non-LPR aliens in New York, then the class would number approximately 16,380. Even if a more conservative percentage, such as 1% were used as an estimate of the proportion of non-LPR aliens who have been or would be denied Medicaid solely on the basis of their alienage, the class would number in the thousands, i.e., 2,340 individuals. These reasonable estimates clearly indicate that the plaintiff class is so large that joinder would be impractical.

 In addition, it should be noted that, by seeking prospective injunctive relief, plaintiffs' action will also involve future class members. Other cases have found that in such situations persons who might be injured in the future are includable in the class. Dixon v. Heckler, 589 F. Supp. 1494, 1511 (S.D.N.Y. 1984); Br own. Bd. of Ed., 84 F.R.D. 383 (D. Kan. 1979). Thus, non-LPR aliens in New York who suffer in the future from their alleged ineligibility for Medicaid will be added to the ranks of the plaintiff class. On these facts, then, it can be inferred that the number of potential plaintiffs is great enough to make joinder impractical, and the numerosity requirement, like the other prerequisites of Rule 23(a), is satisfied.

 Because all of the Secretary's other arguments pertain to an alleged need to narrow the class definition, rather than a need to decertify the class altogether, these other arguments will be considered with plaintiffs' arguments for amending the class definition. The present class satisfies the prerequisites of Rule 23(a), and the Secretary's motion to decertify is denied. *fn2"

 Both the Secretary and the plaintiffs seek to modify the class definition. As an alternative to an order decertifying the class, the Secretary proposes that its definition be narrowed significantly. Plaintiffs on the other hand have moved pursuant to Rule 15 to amend the complaint so as to broaden the class definition by deleting the "under color of law" requirement that it now includes.

 The plaintiffs' proposed amended complaint would make two modifications: first, it would add the proposed intervenors as named class representatives, and second, it would delete from the class definition the "under color of law" requirement so that the proposed new class would include "all aliens residing in New York State who have been or will be denied Medicaid because of defendant's restrictions on alien eligibility."

 The Supreme Court has established that amendment of the complaint pursuant to Rule 15 is to be liberally granted and that "this mandate is to be heeded." Fo man v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962); see S.S. Silberblatt Inc. v. East Harlem Pilot Block Building Housing Development Fund Co., Inc., 608 F.2d 28 (2d Cir. 1979). In this case, this policy comports with Rule 23(c) which provides for the altering or amending of the class definition before a decision on the merits.

 Plaintiffs correctly assert that amendment is particularly appropriate here so as to make the complaint and the class definition comport with the proof presented and the claims alleged. Under the current class definition, only those aliens residing in New York "under color of law" would be included; obviously, non-LPR aliens not residing in the state under color of law, i.e., "illegal aliens," would not fit within this description.

 In the instant litigation, however, plaintiffs seek to challenge not only the Secretary's interpretation of the "under color of law" requirement now included in its Medicaid regulation, but also the inclusion of any alienage restrictions whatsoever. In fact, two of the theories advanced by plaintiffs, both their statutory and constitutional arguments, assert that it is impermissible for the Secretary to consider alien status at all in determining aliens who would be entitled to benefits if plaintiffs prevail with respect to these latter two arguments "under color of law" requirement. In order to open the class to non-LPR or "illegal" aliens who are the intended beneficiaries of the plaintiffs' statutory and constitutional arguments against the inclusion of any alienage restriction at all, the "under color of law" requirement must be dropped from the class definition. Because leave to amend the complaint is appropriate to make it comport with the claims that plaintiffs seek to advance, plaintiffs' motion is granted so as to delete the "uncer color of law" requirement from the class definition.

 It should be noted that, apart from the under color of law requirement, plaintiffs' proposed definition differs from the current definition in one other respect. Most importantly, plaintiffs' definition excludes the requirement that plaintiffs "have applied or attempted to apply for Medicaid." However, plaintiffs have failed to make any convincing showing why this deletion and the other deviations should be incorporated into the class definition. Accordingly, it is appropriate to maintain the current definition deleting only the "under color of law" requirement so that the class will include "all aliens residing in New York State who have applied or attempted to apply for Medicaid but have been or would be denied on the basis of their alienage."

 The federal defendant opposes such a definition as overly broad and, as an alternative to decertification, seeks to have the definition narrowed. More specifically, the defendant seeks to have the class definition amended to include "only persons who otherwise reside in New York State and applied or attempted to apply for Medicaid, since the date Lydia Lewis first applied, and would qualify for Medicaid in New York State on the same statutory bases as plaintiffs allegedly qualify, but for alleged statutory, regulatory, and policy prohibitions against Medicaid benefits to those: (1) who are the beneficiaries of approved immediate relative petitions; (2) on whose behalf immediate relative petitions have been filed with INS; (3) who are the beneficiaries of approved relative petitions; (4) whose applications for stays of deportation have been accepted by INS; (5) who are the beneficiaries of stays of deportation; and (6) who have contacted INS by letter seeking deferred action status."

 In support of this proposed definition, the federal defendant relies upon dicta in Smith v. Schweiker, 709 F.2d 777 (2d Cir. 1983), criticizing the district court's certification of a broadly defined class. The court there stated:

 "We affirm for lack of jurisdiction. While this disposes of the cases, we again 'add a word on the class certification.' Mercer v. Birchman, 700 F.2d 828 at 835. Although the complaint attacks termination decisions reached in the absence of evidence of medical improvement, the class includes all recipients who received a notice of termination after June 1979, including persons for whom there was evidence of medical improvement, persons who were terminated on other grounds irrelevant to this case and persons who have since been reinstated. For all we can tell, the vast preponderance of the class certified is simply not affected by the legal issue plaintiffs seek to raise. As in Mercer, id., therefore, '[w]e do not see how the court could have found that a class so . . . defined met the requirements of F.R.Civ.P. 23(a)(2), (3) and (4).' We again express our confusion as to 'what effect a judgment could have on entirely different claims of other persons . . . or what benefit a successful defendant could draw form it.'"

 Id. 709 F.2d at 781.

 Defendant's reliance on Smith, however, is misplaced since, unlike that case, the present case involves a class defined precisely in terms of the primary issue in the case, i.e., denial of Medicaid benefits on the basis of alien status. The vast preponderance of the class in the present case, therefore, will be directly affected by the determination of the propriety of excluding aliens from the Medicaid program.

 Plaintiffs correctly point out that classes similar to the plaintiff class here have been certified in other cases challenging restrictions on alien eligibility for public benefits:

 "In a case challenging a statute which restricted certain non-legal permanent resident aliens' tuition free admission to public schools, the class was defined as 'all children who are over five and not over twenty-one years of age at the beginning of the scholastic year and have been or will be denied admission to the public schools in the State of Texas on a tuition-free basis because of the alienage provisions of section 21.031 of the Texas Education Code.' In re Alien Children Education Litigation, 501 F. Supp. 544, 553 (S.D. Tex. 1980), aff'd sub nom. Plyler v. Doe, 457 U.S. 202, 72 L. Ed. 2d 786, 102 S. Ct. 2382 (1982). In a case challenging the interpretation of the term permanently residing in the U.S. under color of law as it related to claims for unemployment compensation benefits, the class was defined as 'all past, present, and future alien claimants of unemployment insurance benefits in the State of Texas who have had or will have their claims denied on the basis of their alienage.' Ibarra v. Texas Employment Commission, 598 F. Supp. 104, 105 (E.D. Tex. 1984)."

 In light of these precedents, the present class definition is sufficiently well tailored to the issues and proof to be offered in this litigation, and defendant's ...

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