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October 11, 1966

Aline P. WEISS and Alice K. Pollitzer, Plaintiffs,
John W. GARDNER, as Secretary of the Department of Health, Education and Welfare, and Bernice L. Bernstein, Regional Director, Department of Health, Education and Welfare, Defendants

The opinion of the court was delivered by: HAYS

HAYS, Circuit Judge:

This is an action for a declaratory judgment declaring that Section 103(b) of the Social Security Act Amendments of 1965, Public Law 89-97, 79 Stat. 286, 42 U.S.C. § 426 (note) (Supp. I, 1965), is unconstitutional in certain respects, and that "the use of" a clause in a prescribed form of application for hospitalization insurance under the Act is also unconstitutional. Plaintiff's application for the convening of a three-judge court was granted. See Weiss v. Gardner, 66 Civ. 498 (S.D.N.Y. May 10, 1966).

 Plaintiffs have moved for summary judgment. Defendants seek dismissal of the complaint for lack of jurisdiction over the subject matter (Fed.R.Civ.P. 12(b)(1)). Defendants also contend, but without a specific written motion, that they are entitled to summary judgment and request such a judgment.

 It appearing that there is no genuine issue of material fact as to the jurisdictional point, we direct summary judgment for defendants because plaintiffs have no standing to sue, there is thus no justiciable controversy, and this Court is without jurisdiction of the subject matter.

 Mrs. Pollitzer and Mrs. Weiss, mother and daughter, are both entitled under Section 103(a) of the Social Security Act to hospital benefits. They were unwilling however to subscribe to the following statement which appears in the form to be filed in connection with securing these benefits:

"In connection with my application for hospital insurance entitlement I certify that I am not now, and during the last 12 months have not been a member of any organization which is required to register under the Internal Security Act of 1950, as amended, as a Communist-action organization, a Communist-front organization, or a Communist infiltrated organization." *fn1"

 The clause was included in the application form because of the provisions of Section 103(b) of the Act. Section 103(a) provides for coverage for the hospitalization portion of the Medicare program of about 2,700,000 persons who are over sixty-five years of age but who for various reasons are not entitled to old age payments under the regular social security system. With respect to this group, and only this group, the Act in Section 103(b) provides:

"(b) The provisions of subsection (a) shall not apply to any individual who -
(1) is, at the beginning of the first month in which he meets the requirements of subsection (a), a member of any organization referred to in section 210(a)(17) of the Social Security Act * * *."

 The organizations referred to in Section 210(a)(17), 42 U.S.C. § 410(a)(17), are organizations which are registered, or are required by a final order of the Subversive Activities Control Board to register, under the Internal Security Act of 1950, as amended, 50 U.S.C. §§ 781-798, as Communist-action organizations, Communist-front organizations, or Communist infiltrated organizations.

 As regards the request for a declaratory ruling that Section 103(b) is unconstitutional, the plaintiffs have failed completely to state any claim which would entitle them to such a ruling. It does not appear from plaintiffs' complaint or from any other papers filed in the action that plaintiffs belong or have ever belonged or contemplate belonging to any organization which is mentioned in Section 210(a)(17). No basis is suggested for believing that they run the slightest risk of being denied hospitalization under Section 103(b). It must be noted that we are not here concerned with the government's right to ask them whether or not they belong to such an organization. That problem is a different one and one we reach hereafter. Section 103(b) makes no provision for asking anybody anything. It provides merely that those who belong to certain organizations are not eligible for hospitalization. So far as appears from the pleadings, plaintiffs do not belong to those organizations. They are therefore not affected by Section 103(b).

 Plaintiffs have no standing to attack Section 103(b) on the ground that others who do belong to the organizations referred to may be denied hospitalization. If plaintiffs could assert such rights for others with whom they have nothing relevant in common, so could any one who chose to take up the cudgels in behalf of those who are affected by the statute. If, as is generally supposed, there are a very small number of people who are now members of organizations required to register (because of Communist orientation) under the Internal Security Act of 1950, then it might even prove true in the practical application of the statute that no one at all will come within the terms of Section 103(b).

 As the court said in Lamont v. Postmaster General, 229 F. Supp. 913, 917-918 (S.D.N.Y.1964), rev'd on other grounds, 381 U.S. 301, 85 S. Ct. 1493, 14 L. Ed. 2d 398 (1965)

"a litigant who invokes the power to annul legislation on grounds of its unconstitutionality 'must be able to show * * * that he has sustained or is immediately in danger of sustaining some direct injury as a result of its enforcement,' Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S. Ct. 597, 601, 67 L. Ed. 1078 (1923); see Poe v. Ullman, 367 U.S. 497, 502-509, 81 S. Ct. 1752, 6 L. Ed. 2d 989 (1961) (opinion of Frankfurter, J.); Communist Party of the United States v. Subversive Activities Control Bd., 367 U.S. 1, 70-81, 81 S. Ct. ...

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