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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. 1357, 6 L. Ed. 2d 625 (1961); Comment, Threat of Enforcement - Prerequisite of a Justiciable Controversy, 62 Colum.L.Rev. 106 (1962)."

 See Frankel v. Gardner, 263 F.Supp 218 (E.D.Pa.) July 8, 1966.

 It is quite clear then that plaintiffs fail to assert any of the basic facts which would entitle them to raise the claim that Section 103(b) is unconstitutional.

 However, plaintiffs also urge unconstitutionality of "the use of" the application form for hospital entitlement since it asks for a certification that the applicant does not belong to any of the organizations referred to in Section 103(b).

 In the first place it should be noted that this is not an oath case. See, for example, Cramp v. Board of Public Instruction, 368 U.S. 278, 82 S. Ct. 275, 7 L. Ed. 2d 285 (1961). Section 103(b) does not provide that applicants for hospitalization will not be eligible unless they take an oath that they do not belong to the listed organizations. As far as Section 103(b) is concerned, if applicants are members they are ineligible, if they are not members they are eligible. There is no requirement in the statute that applicants state, let alone swear, whether they are members or not. The presence of the certification on the application form is merely a matter of convenience for the Social Security Administration. It will accept the certificate rather than check the record of each individual applicant.

 As far as appears from the complaint, the plaintiffs could sign the certificate to which they object. They make no claim that they are members of any of the organizations in question. As with respect to the unconstitutionality of Section 103(b), plaintiffs fail to allege any facts which tend to show that they are members of a class who will suffer any injury from signing. Moreover, according to the government's affidavit, a disclaimer is taken as true and no further check is made.

 If plaintiffs, in spite of the fact that they could sign the certificate object to doing so, they may strike out the certificate. An affidavit submitted on behalf of the defendant states that some applicants have done this and that in such cases the Social Security Administration has inquired of the Department of Justice as to whether the applicant is listed as a member of one of the relevant organizations. Plaintiffs call this an "investigation" and object to it. But in no real sense can they be harmed by an examination of the material on file in the Department of Justice. The word "investigation" may have acquired a sinister significance in some circles because of the activities of some congressional investigating committees. Obviously a clerk's routine check of government records is not an "investigation" in the sense in which plaintiffs use the word.

 Although the plaintiffs do not claim that they themselves are in any doubt as to whether they are members of the organizations referred to in Section 103(b), they seek to argue that the certificate suffers from vagueness, in that it does not list the organizations to which it refers. Since applicants are not asked to swear to non-membership nor indeed even required by the statute to answer any questions as to membership, they can properly state that they do not know whether they are members or not if that is the case. Having so answered the question, they would still be treated as eligible for hospitalization unless they are listed as members in the government records.

 It is thus clear that not only do the plaintiffs fail to establish standing to attack the constitutionality of the statute, they also fail to show that they are in any way harmed by "the use of" the application form.

 The Clerk is directed to enter judgment dismissing the action for lack of jurisdiction of the subject matter.

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