United States District Court

Eastern District of Michigan

Southern Division

AELEN UNAN and PATRICIA QUINTINO,

on behalf of themselves and 

all others similarly situated,

Plaintiffs, Case No. 

v.

JAMES K. HAVEMAN, in his official capacity as

DIRECTOR, MICHIGAN DEPARTMENT OF 

COMMUNITY HEALTH,

and

MAURA CORRIGAN, in her official capacity as 

DIRECTOR, MICHIGAN DEPARTMENT 

OF HUMAN SERVICES,

Defendants.

_______________________________________________________________/

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

AND BRIEF IN SUPPORT

STATEMENT OF NONCONCURRENCE

Plaintiffs’ attorney sought the concurrence of Defendants in this Motion. 

Concurrence was not granted. On September 5, 2014, Plaintiffs’ attorney 

contacted the Defendant Director of Department of Community Health (DCH), 

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ii

James K. Haveman; DCH’s in-house counsel, Matthew Rick, with whom

Plaintiffs’ counsel repeatedly had discussed the underlying issues in this case; and 

the Defendant Director of Department of Human Services, Maura Corrigan, to 

inform them that Plaintiffs intended to file this lawsuit and this Motion. Plaintiffs’

attorney provided the nature of the underlying action and the legal bases of the 

Motion, and offered to answer any questions that they might have.

Counsel for both Defendants, Attorney General Joshua Smith, responded to

the request for concurrence for this Motion and did not grant it.

MOTION

1. Pursuant to Fed. R. Civ. P. 23, Plaintiffs move for an Order certifying 

this matter to proceed as a Class Action under Fed. R. Civ. P. 23(b)(2).

2. The named Plaintiffs seek to represent a class consisting of all Medicaideligible Michigan residents who (a) had or have their Medicaid eligibility 

determined or redetermined on or after January 1, 2014, and (b) were or are not (i) 

promptly furnished comprehensive Medicaid coverage while (ii) being given a 

reasonable opportunity to verify their satisfactory immigration status, and were or 

are instead erroneously assigned to Emergency Services Only Medicaid coverage 

without such an opportunity (the Delay and Reasonable Opportunity Class).

3. The named Plaintiffs also seek to represent a class consisting of all 

Medicaid-eligible Michigan residents who (a) had or have their Medicaid 

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iii

eligibility determined or redetermined on or after January 1, 2014, and (b) were or 

are not given adequate and meaningful written notice of the fact that they have 

been denied comprehensive Medicaid coverage, the factual and legal reasons for 

the denial and their hearing rights in connection with the denial of comprehensive 

Medicaid (the Notice Class).

4. Plaintiffs request that Elan S. Nichols and Edward J. Hoort of the Center 

for Civil Justice, and Susan E. Reed and Anna M. Hill of the Michigan 

Immigration Rights Center, be appointed as class counsel in this case.

5. Plaintiffs make this Motion on the grounds that, as to each of the Delay 

and Reasonable Opportunity Class, and the Notice Class:

(A) The class is so numerous that joinder is impracticable;

(B) There are questions of law common to all class members;

(C) The claims of the named Plaintiffs are typical of the claims of the class;

(D) The named Plaintiffs will fairly and adequately protect the interests of 

the class; and

(E) Defendants have acted or failed to act on grounds generally applicable to 

the class, thereby making final injunctive and declaratory relief appropriate.

6. Therefore, Plaintiffs respectfully request that this Court enter an order:

A. Certifying this case to proceed on behalf of two Classes defined as:

all Medicaid-eligible Michigan residents who: (a) have their Medicaid 

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iv

eligibility determined or redetermined on or after January 1, 2014, (b) are not 

promptly furnished comprehensive Medicaid coverage and are instead erroneously 

assigned to Emergency Services Only Medicaid coverage without first being given 

a reasonable opportunity to verify their immigration status (the Delay and 

Reasonable Opportunity Class); and (a) have their Medicaid eligibility determined 

or redetermined on or after January 1, 2014, and (b) are not given adequate and 

meaningful written notice of the fact that they have been denied comprehensive 

Medicaid coverage, the factual and legal reasons for the denial, and that they have 

the right to a hearing if eligibility for comprehensive Medicaid is denied (the 

Notice Class). 

B. Appointing Elan S. Nichols and Edward J. Hoort of the Center for Civil 

Justice, and Susan E. Reed and Anna M. Hill of Michigan Immigrant Rights 

Center, as counsel for the Class.

C. Granting such other and further relief as this Court deems just and proper.

7. Plaintiffs file a Brief with this Motion, more fully explaining why 

certification of each class is appropriate in this case.

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PLAINTIFFS’ BRIEF IN SUPPORT OF 

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Table of Contents

EXHIBITS............................................................................................................... vii

TABLE OF AUTHORITIES ................................................................................. viii

QUESTIONS PRESENTED......................................................................................x

CONTROLLING AUTHORITY..............................................................................xi

I. INTRODUCTION ...........................................................................................1

II. FACTS.............................................................................................................1

III. ARGUMENT...................................................................................................2

A. THE DELAY AND REASONABLE OPPORTUNITY CLASS 

SHOULD BE CERTIFIED. ..................................................................3

1. The Proposed Delay and Reasonable Opportunity Class Is 

Ascertainable and Meets the Requirements of Rule 23(a). ........3

a. Membership in the Delay and Reasonable Opportunity 

Class is Ascertainable...........................................3

b. The Delay and Reasonable Opportunity Class Is So 

Numerous that Joinder of All Members is Impracticable

...........................................................................4

c. There are Questions of Law and Fact Common to the 

Delay and Reasonable Opportunity Class...................7

d. The Claims of the Named Plaintiffs are Typical of the 

Claims of the Delay and Reasonable Opportunity 

Class.............................................................9

e. The Named Plaintiffs Will Fairly and Adequately Protect 

the Interests of the Delay and Reasonable Opportunity 

Class............................................................13

2. The Proposed Delay and Reasonable Opportunity Class Meets 

the Requirements of Rule 23(b)(2) ................................15

B. THE NOTICE CLASS SHOULD BE CERTIFIED....................17

1. The Proposed Notice Class Is Ascertainable and Meets the 

Requirements of Rule 23(a)......................................................17

a. Membership in the Notice Class is Ascertainable .......17

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vi

b. The Notice Class Is So Numerous that Joinder of All 

Members is Impracticable..................................18

c. There are Questions of Law and Fact Common to the 

Notice Class ..................................................19

d. The Claims of the Named Plaintiffs are Typical of the 

Claims of the Notice Class .................................20

e. The Named Plaintiffs Will Fairly and Adequately Protect 

the Interests of the Notice Class ...........................22

2. The Proposed Notice Class Meets the Requirements of Rule 

23(b)(2)................................................................23

IV. CONCLUSION – REQUESTED RELIEF ...................................................24

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vii

Exhibits

Ex. A – Crawley v. Ahmed, No. 08-14040, 2009 U.S. Dist. LEXIS 40794 (E.D. 

Mich. May 14, 2009)

Ex. B – Defendant DCH’s August 11, 2014 response to an advocate’s Freedom of 

Information Act request

Ex. C – Smith v. Waterman S.S. Corp., 2011 U.S. Dist. LEXIS 103369 (E.D. Mich. 

 2011)

Ex. D – Resumes of Elan S. Nichols, Edward J. Hoort, Susan E. Reed, and Anna 

M. Hill

Ex. E – Int’l Union v. Ford Motor Co., 2008 U.S. Dist. LEXIS 66899 (E.D. Mich. 

2008)

Ex. F – Ruiz v. Kizer, No. CVS-1272-MLS-PAN, 1991 WESTLAW 280035 (E.D. 

Cal. Oct. 1, 1991)

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viii

Table of Authorities

Cases

Baby Neal v. Casey, 

43 F.3d 48 (3d Cir. 1994) .............................................................................15, 23

Bacon v. Honda of Am. Mfg., Inc., 

370 F.3d 565 (6th Cir. 2004) ............................................................................4, 7

Beattie v. Century Tel., Inc., 

511 F.3d 554 (6th Cir. 2007) ..............................................................................11

Bromley v. Mich. Edu. Ass’n, 

178 F.R.D. 148 (E.D. Mich. 1998).......................................................................5

Crawley v. Ahmed, 

No. 08-14040, 2009 U.S. Dist. LEXIS 40794 (E.D. Mich. May 14, 2009)

......................................................................................................................passim

Fallick v. Nationwide Mut. Ins. Co., 

162 F.3d 410 (6th Cir. 1998) ................................................................................7

In re Am. Med. Sys., Inc., 

 75 F.3d 1069, 1079 (6th Cir. 1996) ....................................................4, 6, 11, 21

Int’l Union v. Ford Motor Co.,

2008 U.S. Dist. LEXIS 66899 (E.D. Mich. 2008) .............................................15

M.K.B. v. Eggleston, 

 445 F. Supp. 2d 400 (S.D.N.Y. 2006) ...............................................................24

Powers v. Hamilton Co. Pub. Defender Comm’n,

501 F.3d 592 (6th Cir. 2007) ................................................................................7

Ruiz v. Kizer No. CVS-1272-MLS-PAN, 1991 WESTLAW 280035 (E.D. Cal. Oct. 

1, 1991) ...............................................................................................................24

Senter v. Gen’l Motors Corp.,

532 F.2d 511 (6th Cir. 1976) ...........................................................2, 4, 5, 13, 15

Smith v. Babcock,

19 F.3d 257 (6th Cir. 1994) ................................................................................13

Smith v. Waterman S.S. Corp.,

2011 U.S. Dist. LEXIS 103369 (E.D. Mich. 2011)..............................................5

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ix

Sprague v. Gen’l Motors Corp.,

133 F.3d 388 (6th Cir. 1998) ......................................................................7, 8, 19

Wal-Mart Stores, Inc. v. Dukes,

131 S. Ct. 2541 (2011)..................................................................................15, 23

Wilkof v. Caraco Pharm. Labs., Ltd.,

280 F.R.D. 332 (E.D. Mich. 2012).........................................................13, 21, 22

Young v. Nationwide Mut. Ins. Co., 

693 F.3d 532 (6th Cir. 2012) .......................................................................passim

Statutes

42 U.S.C. § 1320b-7(d)(4)(A) .........................................................1, 8

42 U.S.C. § 1396a(a)(3) ................................................................1, 19

42 U.S.C. § 1396a(a)(8) and (10) ......................................................1, 7

Other Authorities

1 Herbert B. Newberg & Alba Conte, Newberg on Class Actions (3d ed. 1992) ...15

Rules

Federal Rule of Civil Procedure 23(a)..............................................................passim

Federal Rule of Civil Procedure 23(b)..............................................passim

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x

Questions Presented:

1. Does this case meet requirements set forth in Fed. R. Civ. P. 23(a) and 23(b)(2) 

for class certification of the Delay and Reasonable Opportunity Class?

2. Does this case meet requirements set forth in Fed. R. Civ. P. 23(a) and 23(b)(2) 

for class certification of the Notice Class?

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xi

Controlling Authority:

Fed. R. Civ. P. 23(a) and (b).

Senter v. Gen’l Motors Corp., 532 F.2d 511, 522 (6th Cir. 1976).

Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 537-538 (6th Cir. 2012).

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I. INTRODUCTION

Plaintiffs bring this action on behalf of themselves and others similarly 

situated, to challenge Defendants’ violations of their federal statutory and 

Constitutional rights:

(a) to prompt receipt of comprehensive Medicaid coverage for which they are 

eligible, under 42 U.S.C. § 1396a(a)(8) and (10);

(b)to a reasonable opportunity to verify their immigration status, and 

comprehensive Medicaid benefits during that period, under 42 U.S.C. § 1320b7(d)(4)(A) (both of the preceding in reference to the Delay and Reasonable 

Opportunity Class); and 

(c) to adequate and meaningful written notice of the fact that the Plaintiff Class

has been denied comprehensive Medicaid coverage, the factual and legal reasons 

for the denial, and their hearing rights in connection with the denial, under the Due 

Process Clause of the Fourteenth Amendment and federal Medicaid law, 42 U.S.C. 

§ 1396a(a)(3) (as to the Notice Class). Upon information and belief, each Class

includes hundreds or thousands of individuals who are or will be unlawfully 

assigned to Emergency Services Only Medicaid coverage. 

II. FACTS

The facts of this case are set forth more fully in the Class Action Complaint 

and attached exhibits, which are incorporated by reference.

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A. The Class Definitions

The proposed Delay and Reasonable Opportunity Class that Plaintiffs seek to 

represent consists of: all Medicaid-eligible Michigan residents who (a) had or have 

their Medicaid eligibility determined or redetermined on or after January 1, 2014, 

and (b) were or are not (i) promptly furnished comprehensive Medicaid coverage 

while (ii) being given a reasonable opportunity to verify their immigration status, 

and were or are instead erroneously assigned to Emergency Services Only Medicaid 

coverage without such an opportunity. 

The proposed Notice Class that Plaintiffs seek to represent consists of: all 

Medicaid-eligible Michigan residents who (a) had or have their Medicaid eligibility 

determined or redetermined on or after January 1, 2014, and (b) were or are not 

given adequate and meaningful written notice of the fact that they have been denied 

comprehensive Medicaid coverage, the factual and legal reasons for the denial and 

their hearing rights in connection with the denial of comprehensive Medicaid.

III. ARGUMENT

A federal court may certify a suit as a class action where the proposed class 

is ascertainable and meets all of the requirements of Fed. R. Civ. P. 23(a), and fits 

within one of the subcategories of Fed. R. Civ. P. 23(b). Senter v. Gen’l Motors 

Corp., 532 F.2d 511, 522 (6th Cir. 1976); Crawley v. Ahmed, No. 08-14040, 2009 

U.S. Dist. LEXIS 40794 (E.D. Mich. May 14, 2009) at *41-42, Exhibit A. In this 

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case, the Delay and Reasonable Opportunity Class is ascertainable and easily 

satisfies the requirements of Rule 23(a) and (b)(2). Thus, this Class should be 

certified.

A. THE DELAY AND REASONABLE OPPORTUNITY CLASS SHOULD 

BE CERTIFIED.

1. The Proposed Class Is Ascertainable and Meets the Requirements of Rule 

23(a).

a. Membership in the Delay and Reasonable Opportunity Class is 

Ascertainable.

Before analyzing the statutory elements regarding class certification, a court 

must find that a defined class exists and that the named plaintiffs are a member of 

that class. Crawley, 2009 U.S. Dist. LEXIS 40794, at *23-25, Exhibit A. “[T]he 

class definition must be sufficiently definite so that it is administratively feasible 

for the court to determine whether a particular individual is a member of the 

proposed class.” Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 537-538 (6th 

Cir. 2012) (citation omitted). The court must be able to ascertain whether a person 

is a class member by reference to objective criteria. Id. at 538-539.

Here, the Delay and Reasonable Opportunity Class satisfies the 

ascertainability requirement because a specific group (all Medicaid-eligible 

qualified immigrants residing in Michigan who applied on or after January 1, 2014, 

were assigned ESO Medicaid without being given comprehensive Medicaid during 

a reasonable opportunity to verify their immigration status), suffered specific harm 

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(receiving very little health care coverage). Similar to the Crawley case, the 

Plaintiff Class includes prospective members who will be refused comprehensive

Medicaid coverage in the future.

Because the proposed Delay and Reasonable Opportunity Class consists of a 

particular group of individuals who have been or will be harmed in a similar way, 

it is ascertainable.

b. The Delay and Reasonable Opportunity Class Is So Numerous that 

Joinder of All Members is Impracticable.

The “numerosity” requirement of Rule 23(a)(1) is met if Plaintiffs

demonstrate the impracticability of joinder. Young, 693 F.3d at 541, quoting In re 

Am. Med. Sys., Inc., 75 F.3d 1069, 1079 (6th Cir. 1996). Joinder need not be 

impossible. There is no “strict numerical test for determining impracticability of 

joinder.” In re Am. Med. Sys., 75 F.3d at 1079. A court may certify a class even 

when a plaintiff does not know the exact number of class members. Senter, 532 

F.2d at 523 n. 24. A large number of potential plaintiffs, however, can be 

sufficient to satisfy numerosity. Bacon v. Honda of Am. Mfg., Inc., 370 F.3d 565, 

570 (6th Cir. 2004) (“[The] sheer number of potential litigants in a class, especially 

if it is more than several hundred, can be the only factor needed to satisfy 

[numerosity].”). 

The Proposed Delay and Reasonable Opportunity Class easily satisfies the 

numerosity requirement because it includes thousands of individuals. Defendants 

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have estimated that as of August 11, 2014, approximately 68,000 citizens and 

qualified immigrants had been erroneously assigned to ESO coverage in Michigan 

in 2014. See Exhibit B. Each day, more individuals are applying for 

Medicaid/Healthy Michigan Plan (HMP) – presumably including qualified 

immigrants.

1

 

Consequently, the Delay and Reasonable Opportunity Class is sufficiently 

numerous to satisfy the numerosity requirement. See Senter, 532 F.2d at 522-523

(“In ruling on a class action a judge may consider reasonable inferences drawn 

from facts before him at that stage of the proceedings”); Bromley v. Mich. Edu. 

Ass’n, 178 F.R.D. 148, 162 (E.D. Mich. 1998) (a class may include not just

persons already harmed by defendants’ conduct, but also persons who will be 

harmed in the future); Smith v. Waterman S.S. Corp., 2011 U.S. Dist. LEXIS 

103369 (E.D. Mich. 2011) at *4, Exhibit C (“It is the duty of a district court faced 

with the question of class-action certification to scrutinize the available evidence, 

draw reasonable inferences from the facts available at this stage of the proceeding 

. . . ”).

 

1 According to an August 11, 2014 response to a Freedom of Information Act 

request to Defendants, Defendant DCH stated that the State had implemented a 

partial, temporary, and prospective-only fix to stop erroneous assignments to ESO 

for qualified immigrants who newly applied as of August 2, 2014 and 

subsequently. See Exhibit B. 

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Other factors courts look to in determining impracticability of joinder 

include “judicial economy, geographical dispersion of class members, ease of 

identifying putative class members, and practicality with which individuals [sic] 

putative class members could sue on their own.” Crawley, 2009 U.S. Dist. LEXIS 

40794, at *28-29, Exhibit A. Here, Delay and Reasonable Opportunity Class

members are dispersed throughout the state. It is unlikely that each and every 

Class member, many of whom have limited English proficiency, will be able to 

fully identify and invest in the resources necessary to redress the statutory 

eligibility and immigration claims raised by this case on their own. This is 

especially true because many of the Class members are at the same time faced with 

serious medical conditions taxing their already limited financial resources. In sum, 

judicial economy will be served by allowing this case to be brought as a class

action with this Delay and Reasonable Opportunity Class, rather than requiring 

thousands of individuals to bring their own actions.

c. There are Questions of Law and Fact Common to the Delay and 

Reasonable Opportunity Class.

The “commonality” requirement of Rule 23(a)(1) is satisfied where there is a 

question of law or fact common to the class. The test is “qualitative rather than 

quantitative . . . [and] there need be only a single issue common to all members of 

the class.” In re Am. Med. Sys., Inc., 75 F.3d at 1080, quoting 1 Herbert B. 

Newberg & Alba Conte, Newberg on Class Actions, § 3.10, at 3-50 (3d ed. 1992); 

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see also Powers v. Hamilton Co. Pub. Defender Comm’n, 501 F.3d 592, 619 (6th 

Cir. 2007). If there is a common issue uniting the putative class members, 

“variations in the circumstances of class members are acceptable.” Bacon, supra 

at 570. The Sixth Circuit has also observed that plaintiffs satisfy the commonality 

prong where resolving the common issue will “advance the litigation.” Sprague v. 

Gen’l Motors Corp., 133 F.3d 388, 397 (6th Cir. 1998), quoted in Crawley, 2009 

U.S. Dist. LEXIS 40794, at *33, Exhibit A; see also Fallick v. Nationwide Mut. 

Ins. Co., 162 F.3d 410, 424 (6th Cir. 1998) (“[T]he commonality test is met when 

there is at least one issue whose resolution will affect all or a significant number of 

the putative class members.”) (quotation omitted). “To demonstrate commonality, 

the plaintiffs’ ‘claims must depend on a common contention . . . of such a nature 

that it is capable of classwide resolution – which means that determination of its 

truth or falsity will resolve an issue that is central to the validity of each one of the 

claims in one stroke.’” Young, supra at 542 (citation omitted).

The questions of law and fact that are common to all members of the Delay 

and Reasonable Opportunity Class include: (1) whether Defendants failed to 

promptly furnish comprehensive Medicaid coverage to the Class, for which they 

are eligible, instead of ESO Medicaid, in violation of 42 U.S.C. § 1396a(a)(8), 

(10); and (2) whether Defendants failed to provide members of the Class with an 

opportunity to verify satisfactory immigration status and with comprehensive

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Medicaid coverage during that reasonable opportunity, in violation of 42 U.S.C. § 

1320b-7(d)(4)(A). As was the case in Crawley, supra, the named Plaintiffs in this 

case seek to redress government officials’ systematic failure to adhere to statutory 

requirements. As such, the named Plaintiffs share common questions of law or 

fact with the putative Delay and Reasonable Opportunity Class. 

Moreover, the common questions are central to the case. A holding that the 

Defendants’ conduct fails to satisfy statutory requirements because of the delays in 

providing comprehensive Medicaid coverage to Plaintiffs, for which Plaintiffs is 

eligible, with an opportunity to verify satisfactory immigration status, would 

resolve the case for all Delay and Reasonable Opportunity Class members “with 

one stroke.” Young, supra. Therefore, resolving the common issues will most 

certainly “advance the litigation.” Sprague, supra.

d. The Claims of the Named Plaintiffs are Typical of the Claims of the 

Delay and Reasonable Opportunity Class.

Plaintiff Unan is a documented refugee, lawfully admitted to the United 

States with an I-94 entry document and a Social Security Number, who came to the 

United States one year ago. She is escaping from war in Iraq by way of Lebanon, 

where she could not stay permanently. Plaintiff Unan now resides in Macomb 

County, Michigan. Ms. Unan speaks some English but Arabic is her first 

language, and has only a low-paying job to sustain herself, which situates her 

below the poverty level. She has no other funds, assets, or governmental 

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assistance, other than financial aid that pays for her to go to community college. 

Ms. Unan also receives food assistance from Defendant DHS, based on the same 

documentation of eligible immigration status that shows she is eligible for 

Medicaid. See Exhibit A to the Class Action Complaint filed contemporaneously 

with this Motion, Declaration of Aelen Unan, 8/14/14, ¶¶ 3-14.

Ms. Unan applied for comprehensive Medicaid coverage (the Healthy 

Michigan Plan) on April 2 and May 21, 2014, attesting that she was a qualified, 

eligible immigrant as a refugee with a Social Security Number. In a “Health Care 

Coverage Determination Notice” dated April 28, 2014, Defendant DHS issued Ms. 

Unan a decision stating – without explanation – that she was approved for ESO 

Medicaid only, from April 1, 2014, ongoing. See Complaint, ¶¶ 68-73. To date, 

over four months after she first applied, Ms. Unan does not have comprehensive

Medicaid coverage. As a consequence of having ESO Medicaid, Ms. Unan cannot 

afford to pay out of pocket for the medical appointments and medications she 

needs. She has been going without the treatment she needs. Ms. Unan requires 

comprehensive Medicaid coverage immediately to pay for prescription 

medications and health care appointments to treat and monitor her dental and 

vision problems. See Complaint, ¶¶ 80-84. Ms. Unan’s situation is very similar to 

all the others within the Delay and Reasonable Opportunity Class.

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Plaintiff Patricia Quintino is a citizen of Mexico and has been a Permanent 

Resident of the United States for 16 years. Plaintiff Quintino came here after 

marrying her husband, and now resides in Kent County, Michigan. Ms. Quintino 

speaks only Spanish. Ms. Quintino’s husband has only a low-paying job to sustain 

the family, including three children, which situates Ms. Quintino below the poverty 

level. She has no other funds, assets, or governmental assistance, other than two 

family cars, and food assistance from Defendant DHS, which carries the same 

immigration qualifications as Medicaid. See Complaint, ¶¶ 85-91; Bridges 

Eligibility Manual (BEM) 225.

Ms. Quintino applied for comprehensive Medicaid coverage (the Healthy 

Michigan Plan) on April 1, 2014, attesting that she was a qualified, eligible 

immigrant as a Permanent Resident with a green card, which she provided with her 

application. In a “Health Care Coverage Determination Notice” that Ms. Quintino 

received dated April 30, 2014, Defendant DHS issued Ms. Quintino a decision 

stating, without explanation, that she was approved for ESO Medicaid only, from 

April 1, 2014, ongoing. See Exhibit B to the Class Action Complaint filed 

contemporaneously with this Motion, Declaration of Patricia Quintino, 8/26/14, ¶¶

15-16. To date, over four months after she first applied, Ms. Quintino does not 

have comprehensive Medicaid coverage. As a consequence of having ESO 

Medicaid, Ms. Quintino cannot afford to pay out of pocket for the medical 

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appointments and medications she needs. She has been going without the 

treatment she needs and skipped her annual physical this year, and she has thyroid 

disease. Plaintiff requires comprehensive Medicaid coverage immediately to pay 

for prescription medications and health care appointments to have regular 

checkups including gynecological cancer screenings, as she has had a prior breast 

lump for which she is overdue for a mammogram. See Complaint, ¶¶ 110-114. 

Plaintiffs Unan’s and Quintino’s claims are typical of those of the Delay and 

Reasonable Opportunity Class because there is a “sufficient relationship . . . 

between the injury to the named Plaintiffs and the conduct affecting the class, so

that the court may properly attribute a collective nature to the challenged conduct.”

In re Am. Med. Sys. Inc., 75 F.3d at 1082, quoting Newberg on Class Actions at 3-

76. The commonality requirement overlaps and merges with the typicality

requirement. Young, 693 F.3d at 542.

In cases where typicality is satisfied, the proposed class representative’s 

interests are so aligned with the putative class’s interests that by pursuing his 

claim, he advances the class’s interests. Id.; see also Beattie v. Century Tel., Inc., 

511 F.3d 554, 561-562 (6th Cir. 2007) (finding typicality satisfied where the 

claims of the named Plaintiffs and the class as a whole arose from the same 

conduct and were premised on the same allegation); Crawley, 2009 U.S. Dist. 

LEXIS 40794, at *38-39, Exhibit A (finding typicality satisfied in a case seeking to 

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12

prove unlawful termination of Medicaid benefits where the claims of the class

representative and the proposed class arose from the same conduct by the

defendant, shared the same legal theory, and the plaintiffs and class members 

suffered an identical harm in that they were not afforded a pre-termination 

eligibility review and hearing).

Here, the typicality requirement is easily met because the claims of the 

named Plaintiffs and the Delay and Reasonable Opportunity Class arise from the 

same unlawful conduct, namely the inaccuracy and untimeliness of Defendants’ 

processing of Plaintiffs’ and Class members’ applications for comprehensive

Medicaid, for which they are eligible, denying an opportunity to verify immigrant 

status. Just like the named Plaintiffs, all members of the Delay and Reasonable 

Opportunity Class have been or will be harmed by the Defendants’ practices and 

procedures for processing Medicaid applications submitted by noncitizens with 

qualified immigration status, which is governed by the federal Constitution and

statutory laws. 

In sum, the legal theories underlying the claims of the individual Plaintiffs

and the claims of the Delay and Reasonable Opportunity Class – which turn on 

whether Defendants are promptly furnishing comprehensive Medicaid for which 

the Class is eligible, and providing a reasonable opportunity for immigration status 

verification – are identical. As was the case in Crawley, the named Plaintiffs will 

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advance the interests of the Delay and Reasonable Opportunity Class members by 

pursuing their own claims. See also Wilkof v. Caraco Pharm. Labs., Ltd. 280 

F.R.D. 332 (E.D. Mich. 2012) (given that there were central questions of whether 

defendants violated securities’ laws through misrepresentation, and individual 

Plaintiffs’ cases would clearly have questions of law or fact in common, class

action should be certified).

e. The Named Plaintiffs Will Fairly and Adequately Protect the 

Interests of the Delay and Reasonable Opportunity Class.

To demonstrate adequacy of representation, Plaintiffs must show that: (1) 

the class representative has common interests with the unnamed members of the 

class, and (2) the representative will vigorously prosecute the interests of the class

through qualified counsel. Young, 693 F.3d at 543; Senter v. Gen’l Motors Corp., 

532 F.2d 511, 522 (6th Cir. 1976). The relationship between the named plaintiffs

and members of the putative class must not be antagonistic. Smith v. Babcock, 19 

F.3d 257, 265 n. 13 (6th Cir. 1994). These elements are met in this case.

First, the interests of the named Plaintiffs and the members of the Delay and 

Reasonable Opportunity Class are entirely coextensive. As described above, the 

legal claims of the named Plaintiffs arise from the same illegal conduct by 

Defendants that applies to the entire Class. Consequently, the Proposed Class

representatives are sufficiently interested in the outcome of the case to vigorously 

prosecute the Delay and Reasonable Opportunity Class’s claims. The named 

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Plaintiffs seek declaratory and injunctive relief to ensure that Defendants promptly 

provide them with desperately needed medical coverage for which they are 

eligible, with a reasonable opportunity to verify satisfactory immigration status 

while benefits are pending. This request does not present conflicts between the 

named Plaintiffs and other Class members because the named Plaintiffs lack any 

interests adverse or antagonistic to the members of the Delay and Reasonable 

Opportunity Class.

Second, counsel for the named Plaintiffs and the Proposed Class has 

sufficient experience and expertise to ably represent the Proposed Class, as well as 

a track record of vigorously pursuing the interests of their clients. Elan S. Nichols 

of the Center for Civil Justice has practiced law for 14 years, including 5 years in 

poverty law. Edward J. Hoort of the Center for Civil Justice has considerable 

experience – about 40 years – in poverty law and Class action litigation in federal 

and state courts. Further, attorneys Susan E. Reed and Anna M. Hill of Michigan 

Immigrant Rights Center together have 13 years combined experience practicing 

immigration law. See Exhibit D, Nichols, Hoort, Reed, and Hill resumes. 

Plaintiffs’ attorneys will prosecute this action vigorously and competently.

Accordingly, Plaintiffs will fairly and adequately protect the interests of the 

Delay and Reasonable Opportunity Class in this action, and meets the requirements 

of Rule 23(a)(4).

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2. The Proposed Delay and Reasonable Opportunity Class Meets the 

Requirements of Rule 23(b)(2).

When a proposed class meets the requirements of Rule 23(a), the class may 

be certified if it satisfies one of the conditions set forth in Rule 23(b). Rule 

23(b)(2) permits class certification when “the party opposing the class has acted or 

refused to act on grounds generally applicable to the class, thereby making 

appropriate final injunctive or corresponding declaratory relief with respect to the 

class as a whole.” Certification under Rule 23(b)(2) is appropriate where “the 

common claim is susceptible to a single proof and subject to a single injunctive 

remedy.” Int’l Union v. Ford Motor Co., 2008 U.S. Dist. LEXIS 66899 (E.D. 

Mich. 2008) at *57-58, quoting Senter, 532 F.2d at 525, Exhibit E. “Rule 23(b)(2) 

was drafted specifically to facilitate relief in civil rights suits.” 8 Newberg on 

Class Actions, § 25:20. In actions primarily seeking injunctive relief, the (b)(2) 

requirement is “almost automatically satisfied.” Baby Neal v. Casey, 43 F.3d 48, 

58 (3d Cir. 1994). “When a suit seeks to define the relationship between the 

defendant(s) and the world at large, (b)(2) certification is appropriate.” Id.

(internal quotation marks and ellipses omitted). “What is important is that the 

relief sought by the named plaintiffs should benefit the entire class.” Id. at 59.

In determining whether a class merits certification under Rule 23(b)(2), the 

United States Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. 

Ct. 2541, 2557 (2011), held that Rule 23(b)(2) applies only when a single 

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injunction or declaratory judgment would provide relief to each member of the 

class. This Delay and Reasonable Opportunity Class easily meets that standard, as 

all members of the Class seek injunctive and declaratory relief from Defendants’

generally applicable custom, policy, or practice of not promptly and correctly 

furnishing comprehensive Medicaid to those who are eligible, and not providing 

them a reasonable opportunity to verify immigration status to retain comprehensive 

coverage. The named Plaintiffs do not contend that they were singled out for 

unlawful treatment. On the contrary, their claim shared with the rest of the Delay 

and Opportunity Class is that their federal rights to desperately needed medical 

coverage, and lack of opportunity to verify eligibility, were violated by a

standardized computer system that similarly affects all members of the proposed 

Class. The remedy the named Plaintiffs seek – declaratory and injunctive relief to 

force Defendants to fix the computer error immediately and immediately provide 

them and the Class with the medical insurance they applied for and are eligible for,

with a verification opportunity and benefits pending, as required by federal law –

would apply to and benefit all members of the proposed Delay and Opportunity 

Class. An order entered by this Court on any basis holding that the statutes are 

enforceable and have been violated would, by its terms, inure to the benefit of all 

members of the Class. Certification is therefore appropriate under Rule 23(b)(2).

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B. THE NOTICE CLASS ALSO SHOULD BE CERTIFIED.

1. The Proposed Notice Class Is Ascertainable and Satisfies Rule 23(a).

a. Membership in the Class is Ascertainable.

The applicable legal authority on ascertainability is discussed in section 

III(A)(1)(a), supra. 

Here, the Notice Class satisfies the ascertainability requirement because a 

specific group (all Medicaid-eligible qualified immigrants residing in Michigan 

who applied on or after January 1, 2014, and were denied adequate and meaningful 

notice as to the Medicaid denial and their hearing rights), suffered specific harm 

(receiving very little health care coverage and no due process). Similar to the case

of Crawley v. Ahmed, No. 08-14040, 2009 U.S. Dist. LEXIS 40794 (E.D. Mich. 

May 14, 2009), Exhibit A, the Plaintiff Notice Class includes prospective members 

who will be denied adequate notice and refused an opportunity to challenge the 

denial of comprehensive Medicaid coverage. Because the proposed Notice Class 

consists of a particular group of individuals who have been or will be harmed in a 

similar way, it is ascertainable.

b. The Notice Class Is So Numerous that Joinder of All Members is 

Impracticable.

The applicable legal authority on numerosity is discussed in section 

III(A)(1)(b), supra. 

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The Proposed Notice Class easily satisfies the numerosity requirement 

because it includes thousands of individuals. As explained above, approximately 

68,000 citizens and qualified immigrants had been erroneously assigned to ESO 

coverage in Michigan thus far in 2014. See Exhibit B. Each of these thousands of 

ESO Medicaid recipients received the same inadequate notice as the named 

Plaintiffs.

Each day, more individuals apply for Medicaid/HMP, including qualified 

immigrants. Defendants have made not changes to correct the unconstitutional 

notices they have been and continue to send when they deny comprehensive 

medical coverage and assign an applicant to ESO. See Exhibit B, August 11, 2014 

FOIA Response of Defendants. Accordingly, each day until the practices 

challenged in this case are enjoined, more individuals will become members of the 

Notice Class. Defendants have taken no action to correct their unconstitutional 

notices of ESO Medicaid assignment. 

Finally, concerning impracticability of joinder, Notice Class members are 

dispersed throughout the state. Similar to the Delay and Reasonable Opportunity 

Class, it is unlikely that each and every Notice Class member, many with language, 

economic, and health barriers, will be able to redress the due process harms raised 

by this case on their own. In sum, judicial economy will be served by allowing 

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this case to be brought as a class action with this Notice Class, rather than 

requiring thousands of individuals to bring their own actions.

c. There are Questions of Law and Fact Common to the Notice Class.

The applicable legal authority on commonality is discussed in section 

III(A)(1)(c), supra. 

The question common to all members of the Notice Class is whether 

Defendants failed to provide members of the Notice Class with a notice informing 

them about the denial of comprehensive Medicaid, the specific legal and factual 

reasons for the denial and their hearing rights regarding the denial, in violation of 

Due Process Clause of the Fourteenth Amendment and federal Medicaid law, 42 

U.S.C. § 1396a(a)(3). As was the case in Crawley, supra, the named Plaintiffs in 

this case seek to redress government officials’ systematic failure to adhere to 

statutory and constitutional requirements. As such, the named Plaintiffs’ and

Notice Class’s claims share common questions. 

Moreover, the common questions are central to the case. A holding that the 

Defendants’ conduct fails to satisfy statutory and constitutional requirements 

because of the deficient notices of assignment to ESO (denial of comprehensive 

Medicaid), would resolve the case for all Notice Class members “with one stroke.” 

Young, supra. Therefore, resolving the common issues will most certainly 

“advance the litigation.” Sprague, supra.

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d. The Claims of the Named Plaintiffs are Typical of the Claims of the 

Notice Class.

The applicable legal authority on typicality is discussed in section 

III(A)(1)(d), supra. 

Named Plaintiff Aelen Unan received a “Health Care Coverage 

Determination Notice” dated April 28, 2014 from Defendant DHS. The Notice 

stated, without explanation, that Ms. Unan was approved for ESO Medicaid only, 

from April 1, 2014, ongoing. See Exhibit A to the Class Action Complaint. Ms. 

Unan had to have her application assister explain to her what this notice meant, and 

in particular, that it was not an approval for comprehensive Medicaid. The notice, 

like all the form notices the Notice Class has received and are receiving, simply 

state that ESO Medicaid is approved, but not that full Medicaid is denied, the 

notices fail to clearly explain the applicant’s right, under federal law, to a hearing 

regarding the denial of full Medicaid coverage. Ms. Unan did not request a 

hearing to appeal, and missed the appeal deadline. 

Plaintiff Patricia Quintino received a “Health Care Coverage Determination 

Notice” from Defendant DHS dated April 30, 2014. Defendant DHS issued Ms. 

Quintino a decision stating, without explanation, that she was approved for ESO 

Medicaid only, from April 1, 2014, ongoing. See Exhibit B to the Class Action 

Complaint filed contemporaneously with this Motion, Declaration of Patricia 

Quintino, 8/26/14, ¶¶ 15-16. Ms. Quintino also did not understand the reason for 

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her assignment to ESO only. No factual or specific legal reason was stated on the 

notice, just as with Plaintiff Unan and the entire Notice Class who received the 

form ESO notices. Additionally, Ms. Quintino did not file an appeal via requesting 

a hearing (her notice did not state that she had a right to this), and she missed her 

appeal deadline as well. Plaintiffs Unan’s and Quintino’s claims are typical of 

those of the Notice Class because there experienced the same injury as the class, 

similar to the commonality requirement. In re Am. Med. Sys. Inc., 75 F.3d at 1082, 

quoting Newberg on Class Actions, at 3-76; Young, 693 F.3d at 542. 

Here, the typicality requirement is easily met because the claims of the 

named Plaintiffs and the Notice Class arise from the same unlawful conduct, 

namely the failure to send a lawful notice regarding the denial of comprehensive 

Medicaid. Just like the named Plaintiffs, all members of the Notice Class have 

been or will be harmed by the Defendants’ practices and procedures for processing 

Medicaid applications submitted by noncitizens with qualified immigration status, 

which is governed by the federal Constitution and statutory laws. 

In sum, the legal theories underlying the claims of the individual Plaintiffs 

and the claims of the Notice Class – which turn on providing a lawful notice – are 

identical. As was the case in Crawley, likewise a systemic notice case, the named 

Plaintiffs will advance the interests of the Notice Class members by pursuing their 

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own claims. See also Wilkof v. Caraco Pharm. Labs., Ltd. 280 F.R.D. 332 (E.D. 

Mich. 2012).

e. The Named Plaintiffs Will Fairly and Adequately Protect the 

Interests of the Notice Class.

The applicable legal authority on adequacy is discussed in section 

III(A)(1)(e), supra. 

First, the interests of the named Plaintiffs and the members of the Notice 

Class are entirely coextensive. As described above, the legal claims of the named 

Plaintiffs arise from the same illegal conduct by Defendants that applies to the 

entire Class. Consequently, the Proposed Notice Class representatives are 

sufficiently interested in the outcome of the case to vigorously prosecute the Class 

claims. The named Plaintiffs seek declaratory and injunctive relief to ensure that 

Defendants promptly provide them with a constitutionally adequate notice 

explaining the denial of comprehensive Medicaid, the basis for the ESO 

assignment, and the right to appeal. This request does not present conflicts 

between the named Plaintiffs and Notice Class members because the named 

Plaintiffs lack any interests adverse or antagonistic to the members of the Class. 

Babcock, supra.

Second, just as with the Delay and Reasonable Opportunity Class, counsel 

for the named Plaintiffs and the proposed Class has sufficient experience and 

expertise to ably represent the proposed Class, as well as a track record of 

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23

vigorously pursuing the interests of their clients. Accordingly, Plaintiffs will fairly 

and adequately protect the interests of the Notice Class in this action, and meets the 

requirements of Rule 23(a)(4).

2. The Proposed Notice Class Meets the Requirements of Rule 23(b)(2).

When a proposed class meets the requirements of Rule 23(a), the class may 

be certified if it satisfies one of the conditions set forth in Rule 23(b). Rule 

23(b)(2) permits class certification when “the party opposing the Class has acted or 

refused to act on grounds generally applicable to the class, thereby making 

appropriate final injunctive or corresponding declaratory relief with respect to the 

class as a whole.” As noted in the Delay and Reasonable Opportunity Class

analysis above, Rule 23(b)(2) is designed for the sorts of issues and claims in civil 

rights and systemic cases that request injunctive relief. See 8 Newberg on Class 

Actions, § 25:20; Baby Neal v. Casey, 43 F.3d 48, 58 (3d Cir. 1994). 

The Notice Class meets the conditions of Wal-Mart Stores, Inc. v. Dukes, 

131 S. Ct. 2541, 2557 (2011), because a single injunction or declaratory judgment 

would provide relief to each member of the class. All members of the Class seek 

injunctive and declaratory relief from Defendants’ identically worded, generic, and 

boilerplate notices. The named Plaintiffs do not contend that they were singled out 

for unlawful treatment. On the contrary, their shared claim is that their federal 

rights to meaningful notice and an opportunity to be heard were violated by a 

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standardized, computer-generated notice sent to all members of the Proposed 

Notice Class. The remedy the named Plaintiffs seek – declaratory and injunctive 

relief to force Defendants to redraft the ESO notice to comply with the 

Constitution and federal law – would apply to and benefit all members of the 

proposed Notice Class. An order entered by this Court to this effect would, by its 

terms, inure to the benefit of all members of the Notice Class. Certification is 

therefore appropriate under Rule 23(b)(2).

IV. CONCLUSION – REQUESTED RELIEF

The Proposed Delay and Reasonable Opportunity Class, as well as the 

Notice Class, are ascertainable and satisfy the requirements of Rule 23(a) and (b)

for certification. See generally M.K.B. v. Eggleston, 445 F. Supp. 2d 400 

(S.D.N.Y. 2006) (class certification of battered immigrant women and children 

who were denied Medicaid due to city’s defective process for determining 

eligibility, flaws in computer systems, erroneous policy directives, and inadequate 

training); Ruiz v. Kizer, No. CVS-1272-MLS-PAN, 1991 WESTLAW 280035 

(E.D. Cal. Oct. 1, 1991) (certifying a class action alleging that section 1320b7(d)(4) makes immigrants eligible for Medicaid while a determination of their 

immigrant or resident status is being made), Exhibit F. Therefore, Plaintiffs

respectfully request that this Court enter an order certifying the two classes and 

appointing class counsel as set forth fully in the Motion above.

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Respectfully Submitted,

Dated: September 8, 2014 /s/Elan S. Nichols (P57463)

Edward J. Hoort (P25561)

Attorneys for Plaintiffs

CENTER FOR CIVIL JUSTICE

436 S. Saginaw St.; Ste. 400 

Flint, MI 48502 

(810) 244-8044; Fax: (810) 244-5550

enichols@ccj-mi.org 

ehoort@ccj-mi.org 

Dated: September 8, 2014 /s/Susan E. Reed (P66950)

Anna M. Hill (P78632)

Attorneys for Plaintiffs

MICHIGAN IMMIGRANT RIGHTS 

CENTER

3030 S. 9th St. Suite 1B

Kalamazoo, MI 49009

(269) 492-7196; Fax: (269) 492-7198

susanree@michiganimmigrant.org

ahill@michiganimmigrant.org

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