(a) Espinosa's filing of an application, though not made until he had become a party, met the nonwaivable jurisdictional condition imposed by 42 U. S. C. § 405 (g) that a claim for benefits under the Social Security Act shall have been presented to the Secretary of Health, Education, and Welfare, and the pleadings may be treated as properly supplemented by appellant's stipulation that Espinosa had filed an application. P. 75.

(b) Appellant's stipulation that Espinosa's application would be denied for failure to meet the durational residence requirement was tantamount to a denial of the application and constituted a waiver of the exhaustion requirements, and thus satisfied the statutory requirement of a hearing and final decision. Weinberger v. Salfi, 422 U. S. 749. Cf. Weinberger v. Wiesenfeld, 420 U. S. 640 n. 6, 641 n. 8. Pp. 75-77.

2. The statutory classification in § 13950 (2) (B) does not deprive appellees of liberty or property in violation of the Due Process Clause of the Fifth Amendment. Pp. 77-87.

(a) Congress, which has broad power over immigration and naturalization and regularly makes rules regarding aliens that would be unacceptable if applied to citizens, has no constitutional duty to provide all aliens with the welfare benefits provided to citizens; the real question here is not whether discrimination between aliens and citizens is permissible, as it clearly is, but whether the statutory discrimination within the class of aliens is permissible. Pp. 77-80.

(b) The political branches of government have considerable flexibility in responding to changing world conditions, and judicial review of decisions made by the Congress or the President in the area of immigration and naturalization is narrow. The party challenging the constitutionality of the particular line Congress has drawn has the burden of advancing principled reasoning that will at once invalidate that line and yet tolerate a different line separating some aliens from others. Pp. 81-82.

(c) This case essentially involves only a claim that it would have been more reasonable for Congress to select somewhat different requirements of the same kind. The requirements chosen by Congress render eligible those aliens who may reasonably be assumed to have a greater affinity with the United States and this Court is especially reluctant to question such a policy choice of degree. Pp. 82-84.

361 F. Supp. 1, reversed.

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Opinion of the Court

STEVENS, J., delivered the opinion for a unanimous Court.

Harriet S. Shapiro reargued the cause for appellant. With her on the brief on reargument were Solicitor General Bork, Assistant Attorney General Lee, and David M. Cohen. On the brief on the original argument were Solicitor General Bork, Assistant Attorney General Hills, Gerald P. Norton, and Mr. Cohen.

Bruce S. Rogow argued the cause and filed a brief for appellees on reargument. Alfred Feinberg argued the cause and filed a brief for appellees on the original argument.*

MR. JUSTICE STEVENS delivered the opinion of the Court.

The question presented by the Secretary's appeal is whether Congress may condition an alien's eligibility for participation in a federal medical insurance program on continuous residence in the United States for a five-year period and admission for permanent residence. The District Court held that the first condition was unconstitutional and that it could not be severed from the second. Since we conclude that both conditions are constitutional, we reverse.

Each of the appellees is a resident alien who was lawfully admitted to the United States less than five years ago. Appellees Diaz and Clara are Cuban refugees who remain in this country at the discretion of the Attorney General; appellee Espinosa has been admitted for per

*Briefs of amici curiae urging affirmance were filed by Jack Wasserman and Esther Kaufman for the Association of Immigration and Nationality Lawyers; by Robert Allen Sedler and Melvin L. Wulf for the American Civil Liberties Union; by Jonathan A. Weiss for Legal Services for the Elderly Poor; and by Edith Lowenstein for Migration and Refugee Services, U. S. Catholic Conference, Inc., et al.

manent residence. All three are over 65 years old and have been denied enrollment in the Medicare Part B supplemental medical insurance program established by § 1831 et seq. of the Social Security Act of 1935, 49 Stat. 620, as added, 79 Stat. 301, and as amended, 42 U. S. C. § 1395j et seq. (1970 ed. and Supp. IV). They brought this action to challenge the statutory basis for that denial. Specifically, they attack 42 U. S. C. § 1395o (2) (1970 ed., Supp. IV), which grants eligibility to resident citizents who are 65 or older but denies eligibility to comparable aliens unless they have been admitted for permanent residence and also have resided in the United States for at least five years. Appellees Diaz and Clara meet neither requirement; appellee Espinosa meets only the first.

On August 18, 1972, Diaz filed a class action complaint in the United States District Court for the Southern

1 The Medicare Part B medical insurance program for the aged covers a part of the cost of certain physicians' services, home health care, outpatient physical therapy, and other medical and health care. 42 U. S. C. § 1395k (1970 ed. and Supp. IV). The program supplements the Medicare Part A hospital insurance plan, § 1811 et seq. of the Social Security Act of 1935, 49 Stat. 620, as added, 79 Stat. 291, and as amended, 42 U. S. C. § 1395c et seq. (1970 ed. and Supp. IV), and it is financed in equal parts by the United States and by monthly premiums paid by individuals aged 65 or older who choose to enroll. 42 U. S. C. § 1395r (b) (1970 ed., Supp. IV).

2 Title 42 U. S. C. § 13950 (1970 ed. and Supp. IV) provides:

"Every individual who-(1) is entitled to hospital insurance benefits under Part A, or (2) has attained age 65 and is a resident of the United States, and is either (A) a citizen or (B) an alien lawfully admitted for permanent residence who has resided in the United States continuously during the 5 years immediately preceding the month in which he applies for enrollment under this part, is eligible to enroll in the insurance program established by this part." This case does not raise any issues involving subsection (1).

67

Opinion of the Court

District of Florida alleging that his application for enrollment had been denied on the ground that he was not a citizen and had neither been admitted for permanent residence nor resided in the United States for the immediately preceding five years. He further alleged that numerous other persons had been denied enrollment in the Medicare Part B program for the same reasons. He sought relief on behalf of a class of persons who have been or will be denied enrollment in the Medicare insurance program for failure to meet the requirements of 42 U. S. C. §13950 (2) (1970 ed., Supp. IV). Since the complaint prayed for a declaration that § 13950 (2) was unconstitutional and for an injunction requiring the Secretary to approve all applicants who had been denied eligibility solely for failure to comply with its requirements, a three-judge court was constituted.

On September 28, 1972, the District Court granted leave to add Clara and Espinosa as plaintiffs and to file an amended complaint. That pleading alleged that Clara had been denied enrollment for the same reasons as Diaz, but explained that Espinosa, although a permanent resident since 1971, had not attempted to enroll because he could not meet the durational residence requirement, and therefore any attempt would have been futile. The amended complaint sought relief on behalf of a subclass represented by Espinosa-that is, aliens admitted for permanent residence who have been or will be denied enrollment for failure to meet the five-year continuous residence requirement as well as relief on behalf of the class represented by Diaz and Clara.3

The District Court certified a class and a subclass, defined, respectively, as follows:

"All immigrants residing in the United States who have attained the age of 65 and who have been or will be denied enrollment in the supplemental medical insurance program under Medicare, 42 U. S. C. § 1395j et seq. (1970), because they are not aliens lawfully

On October 24, 1972, the Secretary moved to dismiss the complaint on the ground, among others, that the District Court lacked jurisdiction over the subject matter because none of the plaintiffs had exhausted his administrative remedies under the Social Security Act. Two days later, on October 26, 1972, Espinosa filed his application for enrollment with the Secretary. He promptly brought this fact to the attention of the District Court, without formally supplementing the pleadings.

None of the appellees completely exhausted available avenues for administrative review. Nevertheless, the admitted for permanent residence who have resided in the United States continuously during the five years immediately preceding the month in which they apply for enrollment as required by [42 U. S. C. § 13950 (2) (B) (1970 ed., Supp. IV)].

"All immigrants lawfully admitted for permanent residence in the United States who have attained the age of 65 and who have been or will be denied enrollment in the supplemental medical insurance program under Medicare, 42 U. S. C. § 1395j et seq. (1970), solely because of their failure to meet the five-year continuous residency requirement of [42 U. S. C. § 13950 (2) (B) (1970 ed., Supp. IV)]." Diaz v. Weinberger, 361 F. Supp., 1, 7 (1973) (footnote omitted).

These class certifications are erroneous. The District Court did not possess jurisdiction over the claims of the members of the plaintiff class and subclass who "will be denied" enrollment. Those who "will be denied" enrollment, as the quoted phrase is used in the certification, are those who have yet to be denied enrollment by formal administrative decision. See id., at 6-7, and n. 7. But the complaint does not allege, and the record does not show, that the Secretary has taken any action with respect to such persons that is tantamount to a denial. It follows that the District Court lacked jurisdiction over their claims, see Weinberger v. Salfi, 422 U. S. 749, 764, and that the class and subclass are too broadly defined. In view of our holding that the statute is constitutional, we need not decide whether a narrower class and subclass could have been properly certified.