Only one reported decision has addressed the specific issue
presented in the instant case. In Falter v. Veterans' Admin.,
502 F. Supp. 1178 (D.N.J. 1980), the plaintiffs claimed that
patients at a certain VA hospital were "treated in a disparate
manner in comparison with patients at other V.A. hospitals."
Id. at 1182. The court held that review of this claim was not
barred by section 211(a), and stated that "the V.A. . . .
violates equal protection if it permits two hospitals serving
the same types of patients under the same statutes and
regulations to provide substantially different treatment to
those patients." As might be expected, plaintiff relies heavily
on Falter in opposition to defendants' motion to dismiss.
Defendants insist that Falter is not controlling in this case.
As defendants point out, a district court in this Circuit has
interpreted Falter as having specifically declined to review
any equal protection claim based upon the provision of medical
care. See Hartmann v. United States, 615 F. Supp. 446, 449
(E.D.N.Y. 1985). As understood by the court in Hartmann, Falter
created a "third exception to the § 211(a) jurisdictional bar"
by holding "that § 211(a) did not preclude jurisdiction over
claims of basic rights to liberty and property rising to the
level of a constitutional claim for equal protection." Id. at
The plaintiffs in Hartmann were Viet Nam veterans attempting
to compel the VA to provide diagnostic testing and correct
treatment for a condition known as filariasis.*fn6 The
plaintiffs argued that their equal protection rights were being
violated because the VA failed to provide the type of medical
care for filariasis which World War II veterans received. The
plaintiffs attempted to rely on Falter, but the district court
determined that their reliance was misplaced, on the grounds
that the district court in Falter "particularly refused to
frame disparities in delivery of medical care as equal
protection issues subject to review." Hartmann v. United
States, supra, 615 F. Supp. at 449.
This Court disagrees with that assessment of the court's
decision in Falter. The court in Hartmann quoted Falter's
statement that "When I say that they are treated differently, I
am not referring to the substance of their medical or
psychiatric treatment, I am referring to how they are treated
as human beings." Falter v. Veterans' Admin., supra, 502
F. Supp. at 1185. Notwithstanding this statement, the court in
Falter also noted later in its opinion: "Similarly, and this is
the one area that concerns medical treatment, if patients
receive better medical care elsewhere in the V.A. system there
may be no need to ever address the right to treatment
questions. That is to say that if the V.A. provides good
quality medical care in its other hospitals but not at Lyons,
as the plaintiffs contend, the equal protection guarantee may
be all that is needed to provide the plaintiffs with the relief
sought." Id. at 1190. Thus, it is apparent that the court in
Falter did address issues concerning unequal levels of medical
care among the VA hospitals.
While the Court thus reads Falter differently than did the
district court in Hartmann, it does not necessarily follow that
the Court believes Hartmann to have been wrongly decided,*fn7
nor does it follow that a denial of defendants' motion to
dismiss would be inconsistent with the decision in that case.
As discussed above, an examination of the substance of the
plaintiffs' claims in Falter led the district court to conclude
that, in essence, they challenged the VA's failure to provide
them a particular type of medical treatment. In the instant
case, the Court must look to the substance of plaintiff's
claims to determine if it, too, merely seeks to dress a
to the adequacy of the treatment provided in the clothes of a
This case presents a very close question. A reading of the
complaint does suggest that plaintiff asserts that s.c.i.
veterans at Castle Point are being denied some minimum level of
care, regardless of the alleged differences between their
treatment and that provided similarly situated patients at
other VA medical centers. Insofar as the complaint does assert
such a claim, the Court finds that it is barred by section
211(a). However, the complaint also contains concrete
allegations that s.c.i. veterans at Castle Point, as a class,
are afforded lesser levels of care than other s.c.i. veterans.
Plaintiff's specific assertions also include distinctions in
the types of care which might, under Hartmann and Falter, be
thought to encompass "how they are treated as human beings."
See Hartmann v. United States, supra, 615 F. Supp. at 449
(quoting Falter v. Veterans' Administration, supra, 502 F. Supp.
In sum, the Court finds that plaintiff has raised a
constitutional claim which goes beyond a challenge to the
treatment being provided s.c.i. veterans at Castle Point.
Accordingly, section 211(a) does not bar consideration of
plaintiff's complaint, and defendants' motion to dismiss for
lack of subject matter jurisdiction is denied.
II. Associational Standing of EPVA.
Defendants argue that plaintiff EPVA lacks standing to assert
the instant claim. The parties agree that the applicable test
for associational standing is that set forth in Hunt v.
Washington Apple Advertising Comm'n, 432 U.S. 333, 97 S.Ct.
2434, 53 L.Ed.2d 383 (1977):
an association has standing to bring suit on
behalf of its members when: (a) its members would
otherwise have standing to sue in their own right;
(b) the interests it seeks to protect are germane
to the organization's purpose; and (c) neither the
claim asserted nor the relief requested requires
the participation of individual members in the
Id. at 343, 97 S.Ct. at 2441.
Defendants do not assert that EPVA fails to meet the first
two prongs of this test. They argue only that EPVA fails to
meet the Hunt standard because the participation of individual
members of the association in the lawsuit is required. The
As plaintiff points out in its response, the complaint in the
instant case does not challenge the treatment or care provided
to any individual s.c.i. veteran at Castle Point. Indeed,
insofar as it did attempt to do so the Court would be barred
from hearing such a claim under section 211(a). See discussion,
supra. Rather, plaintiff challenges the systemic disparities in
care between Castle Point and other VA medical centers. Such a
challenge does not require a fact specific inquiry into any
individual's particular medical treatment. Accordingly, the
Court finds that EPVA has associational standing to assert
claims on behalf of its members.
III. Class Certification.
Plaintiff has moved, pursuant to Rule 23(b)(1) and (2) and,
alternatively, Rule 23(b)(3), Fed.R.Civ.P., for certification
of this case as a class action. Plaintiff defines the proposed
class as "[a]ll spinal-cord-injured veterans who are or from
1985 to the present were entitled to medical treatment for
spinal cord injuries at, or under the auspices of, the Castle
Point Veterans Administration Medical Center," and asks the
Court to designate plaintiff EPVA as class representative, and
Jarblum, Solomon & Fornari, P.C. as class counsel.
Rule 23, Fed.R.Civ.P., governs the certification of class
actions and has as its main objectives the efficient resolution
of the claims or liabilities of many individuals in a single
action, as well as the elimination of repetitious litigation
and possibly inconsistent adjudications. See C. Wright, A.
Miller & M. Kane, Federal Practice and Procedure: Civil 2d §
Pursuant to Rule 23(a), one or more members of the class may
sue or be sued upon the meeting of four requirements:
(1) the class is so numerous that joinder of all
members is impracticable; (2) there are questions
of law or fact common to the class; (3) the claims
or defenses of the representative parties are
typical of the claims or defenses of the class;
and (4) the representative parties will fairly and
adequately protect the interests of the class.
Rule 23(a), Fed.R.Civ.P. Once these criteria have been
satisfied, an action will be certified as a class action if it
meets one of the following additional conditions provided for
in Rule 23(b): (1) separate actions might adversely affect
class members or the opposing party; or (2) injunctive or
declaratory relief is sought; or (3) common questions
predominate over individual questions.
If class certification is necessary and if a request for
certification is timely and properly made, fulfillment of the
conditions set forth in Rules 23(a) and 23(b) will permit a
court to grant class certification in the action. See Koster v.
Perales, 108 F.R.D. 46, 48 (E.D.N.Y. 1985).
According to EPVA, it is a New York not-for-profit
corporation with a membership of over 2,000 s.c.i. veterans who
are catastrophically disabled paraplegics and quadriplegics.
These members reside throughout the Northeast and in particular
in the vicinity of Castle Point. Plaintiff asserts that the
proposed class consists of over 2,000 class members.
Defendants argue that the class should not be certified for
two reasons. First, defendants contend that the proposed class
fails to meet the numerosity requirement of Rule 23(a), because
"[t]he proposed class and the membership of the EPVA are 
virtually identical." Defendants' Memorandum of Law in Support
of Their Motion to Dismiss And in Opposition to Motion for
Class Certification, filed September 26, 1989, at 21. Second,
defendants argue that EPVA fails to meet the typicality
requirement of Rule 23(a). Both of these arguments must be
In its reply papers, EPVA makes clear that the "over 2,000"
members of EPVA are not identical to the "over 2,000" members
of the proposed class. EPVA claims that the overlap between the
two groups is perhaps one half. Because this basis of
defendants' opposition to class certification has thus been
credibly refuted by plaintiff, the Court finds that the
proposed class satisfies the numerosity requirement of Rule
Defendants next argue that EPVA's claims are not typical of
the claims of the proposed class because an organization cannot
be a member of the proposed class since it can assert no
constitutional injury to itself. They cite National Association
of Concerned Veterans v. Secretary of Defense, 487 F. Supp. 192
(D.D.C. 1979), for the proposition that an organization which
cannot itself be a member of the proposed class cannot
represent the class.
Courts have certified organizations as class representatives.
See Women's Committee for Equal Employment v. N.B.C., 71 F.R.D.
666 (S.D.N.Y. 1976); Massachusetts Ass'n of Older Americans v.
Spirito, 92 F.R.D. 129 (D.Mass. 1981). The Court sees no reason
why EPVA, which has been found to have associational standing
to assert the claims of its members, cannot likewise represent
the class. Defendants have advanced no persuasive reason for
such a result. Accordingly, because the Court determines that
the action satisfies the prerequisites of subdivisions (a) and
(b)(1)(A) and (b)(2) and (b)(3) of Rule 23, Fed.R.Civ.P.,
plaintiff's motion for class certification is granted.
For the foregoing reasons, defendants' motion to dismiss the
complaint is denied.
Plaintiff's motion for class certification is granted, and the
class is hereby certified as requested in plaintiff's motion.
The parties are directed to confer and submit a joint
scheduling letter by May 17, 1991.
Settle order on notice.