Lewis v. Gross, CV-79-1740.

• Decision Date: 14 July 1986
• Docket Number: No. CV-79-1740.,CV-79-1740.
• Citation: 663 F. Supp. 1164
• Parties: Lydia LEWIS, et alia, Plaintiff, v. George GROSS, individually and as Commissioner of the New York City Department of Social Services, et alia, Defendants.
• Court: U.S. District Court — Eastern District of New York

663 F. Supp. 1164

Lydia LEWIS, et alia, Plaintiff, v. George GROSS, individually and as Commissioner of the New York City Department of Social Services, et alia, Defendants.

No. CV-79-1740.

United States District Court, E.D. New York.

July 14, 1986.

Main Street Legal Services by Janet M. Calvo, Bayside, N.Y., and Washington Square Legal Services, Inc. by Lynn M. Kelly, and Legal Aid Soc. by Arthur J. Fried, New York City, for plaintiffs.

Peter Zimroth, Corp. Counsel of the City of New York by Michael Young, New York City, for City defendants.

Robert Abrams, Atty. Gen. of the State of N.Y. by Marion Buchbinder, New York City, for State defendants.

Andrew J. Maloney, U.S. Atty., E.D.N.Y. by Charles Kleinberg, Brooklyn, N.Y., for Federal defendants.

MEMORANDUM AND ORDER

SIFTON, 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 Omnibus 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, had a private bill passed on his or her 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,¹ 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, `the (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 plaintif...