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January 16, 1976

WALTER WOE (a pseudonym), by his mother and guardian, WILMA WOE (a pseudonym), on behalf of themselves and all others similarly situated, Plaintiffs,
DAVID MATHEWS, individually and as Secretary of the United States Department of Health, Education and Welfare; THE UNITED STATES OF AMERICA; HUGH L. CAREY, individually and as Governor of the State of New York; LAWRENCE L. KOLB, M.D., individually and as Commissioner of Department of Mental Hygiene of the State of New York; MORTON B. WALLACH, M.D., individually and as Director of Brooklyn State Hospital; and THE STATE OF NEW YORK, Defendants

The opinion of the court was delivered by: NEAHER


 NEAHER, District Judge.

 This individual and class action concerns the constitutionality of federal and New York State statutes and State practices affecting persons civilly committed to involuntary confinement in State mental institutions. Since the inception of the action plaintiffs have filed one amended complaint and have sought leave to amend the complaint to add new individual and classes of defendants, new classes of plaintiffs and new claims for relief, and defendants have filed motions to dismiss. In order to keep the myriad claims and potential parties as distinct as possible the court will first deal with the matters relating to the original amended complaint.


 Plaintiffs Walter Woe and Wilma Woe, his mother and guardian, *fn1" seek to represent patients between the ages of 21 and 65 who are involuntarily civilly committed in public mental institutions. As the court understands the allegations in the complaint, plaintiffs raise the following claims for relief:

 (1) Woe raises a two-prong constitutional claim against the State defendants. First, Woe claims that as an involuntarily civilly committed mental patient he has a constitutional right to treatment and that his confinement in a State mental institution which affords him only custodial care violates his rights under the equal protection and due process clauses. Second, Woe claims that, as part of the right to treatment, he has a constitutional right to confinement in a general hospital which provides psychiatric services and not merely in a public institution which provides purely custodial care. *fn2"

 (2) Woe alleges the unconstitutionality of a State statute against the State defendants. Specifically, Woe attacks provisions of the New York State Mental Hygiene Law for failure to require "adequate active care and treatment" and to provide a means to enforce the alleged right to treatment. *fn3"

 (3) Woe alleges the unconstitutionality of the federal Medicaid statute against the federal defendants. Specifically, Woe claims that the exclusion of inmates of State mental institutions who are between the ages of 21 and 65 from the benefits of Medicaid coverage, 42 U.S.C. § 1396d(a), is unconstitutional. *fn4"

 Plaintiffs requested declaratory judgments as to the unconstitutionality of (a) State practices in involuntary commitments, (b) the pertinent provisions of the State Mental Hygiene Law, and (c) the Medicaid exclusions for patients in State mental hospitals, and preliminary and permanent injunctions to enforce the declaratory judgments. *fn5"

 Plaintiffs' motion for class certification was denied without prejudice to renew pending the determination whether a three-judge court should be convened pursuant to the demand for injunctions against enforcing the federal and State statutes. *fn6" Plaintiffs now assert that they have abandoned their demands for injunctive relief and seek only declaratory judgments from this court. Therefore, they argue, a single judge may adequately dispose of their claims, strongly urging that nothing impedes class certification.

 Despite plaintiffs' arguments, the court is not convinced that plaintiffs have abandoned the injunction aspects of their case. They explicitly request convening a three-judge court in their complaint. *fn7" They continue to ask that "preliminary and permanent injunctions be entered enforcing these declaratory and other judgments." *fn8" In contrast, see Kennedy v. Mendoza-Martinez, 372 U.S. 144, 9 L. Ed. 2d 644, 83 S. Ct. 554 (1963) (single judge may grant non-coercive declaratory relief). They also seek mandamus, a form of injunction, in the nature of compelling an officer of the United States to perform a duty, 28 U.S.C. § 1361. *fn9" The court notes that Kantrowitz v. Weinberger, 388 F. Supp. 1127 (D.D.C. 1974), which also tested the constitutionality of Medicaid exclusions, was an action "in the nature of mandamus and for declaratory judgment" and was decided by a three-judge court. Finally, in a related pending motion, *fn10" plaintiffs have already come into court for a temporary restraining order against the Secretary of Health, Education and Welfare (HEW) on grounds of unconstitutionality of a federal statute and have asserted they will seek a preliminary injunction in that matter. The court is compelled to conclude that plaintiffs are using the declaratory judgment mechanism merely as a label and are actually seeking injunctions against enforcement of federal and State statutes. Thus, this remains an action in which a three-judge court may be required.

 Even assuming, however, that plaintiffs are correct and a statutory court is unnecessary, defendants have raised issues in their motions to dismiss which, if decided in their favor, would obviate any necessity for a three-judge court. A single judge, in any case, may determine

"(1) whether the constitutional question is substantial; (2) whether the complaint at least formally alleges a basis for equitable relief; and (3) whether the case comes within the requirement of the three-judge statute." Abele v. Markle, 452 F.2d 1121, 1125 (2 Cir. 1971).

 Thus the court turns to a consideration of federal and State defendants' motions to dismiss the complaint.

 A. Federal Defendants' Motions to Dismiss

 In his claim against the federal defendants, *fn11" plaintiff Woe, a 26-year old inmate of Brooklyn State Hospital, a New York State mental institution, attacks the exclusion of inmates of State institutions who are between the ages of 21 and 65 from Medicaid coverage, Title XIX of the Social Security Act as amended, 42 U.S.C. § 1396d(a). That section defines "medical assistance" for purposes of State eligibility for Medicaid payments in such a way as to provide reimbursement for services in mental institutions only for patients who are under age 21 or 65 or older. *fn12" Thus patients, such as the plaintiff, who are between 21 and 65 are ineligible for medical assistance under the Medicaid statute. In contrast to the provisions excluding mental institutions, the statute does permit medical assistance to individuals, otherwise eligible, for psychiatric services received in general hospitals irrespective of age. It is this "discrimination" between patients in State mental institutions not receiving Medicaid funds and those in psychiatric facilities in general hospitals, or other Medicaid covered programs, of which plaintiffs chiefly complain.

 The federal defendants have moved to dismiss the complaint on the grounds, inter alia, that plaintiffs' case is foreclosed by controlling precedent and the complaint should be dismissed for lack of a substantial federal question. Defendants to succeed must establish that plaintiffs' claims are "constitutionally insubstantial," because "prior decisions inescapably render the claims frivolous." Goosby v. Osser, 409 U.S. 512, 518, 93 S. Ct. 854, 859, 35 L. Ed. 2d 36 (1973); Maggett v. Norton, 519 F.2d 599, 602 (2 Cir. 1975); Brook Hollow Associates v. J. E. Greene, Inc., 389 F. Supp. 1322, 1327 (D. Conn. 1975).

 The court believes the federal defendants have met their burden, for as stated by them, "this case is on all fours, factually and legally, with Legion v. Richardson, 354 F. Supp. 456 (S.D.N.Y. 1973), affirmed sub nom. Legion v. Weinberger, 414 U.S. 1058, 38 L. Ed. 2d 465, 94 S. Ct. 564 (1973) [hereinafter " Legion "]; and Legion is itself a binding precedent on this court." *fn13"

 Contrary to plaintiffs' assertions, it is the rule of this circuit that a summary affirmance by the United States Supreme Court of a case within its obligatory appellate jurisdiction is precedent binding on a lower federal court. Mercado v. Rockefeller, 502 F.2d 666, 673 (2 Cir. 1974); Doe v. Hodgson, 344 F. Supp. 964 (S.D.N.Y. 1972), aff'd, 478 F.2d 537 (2 Cir. 1973), applic. dismissed & reaff'd, 500 F.2d 1206 (2 Cir. 1974). *fn14"

 A summary affirmance is a decision on the merits of the issues on appeal, Ohio ex rel. Eaton v. Price, 360 U.S. 246, 247, 3 L. Ed. 2d 1200, 79 S. Ct. 978 (1959); Mercado v. Rockefeller, supra, although not necessarily an affirmance of the rationale by which the decision was reached, Fusari v. Steinberg, 419 U.S. 379, 95 S. Ct. 533, 541, 42 L. Ed. 2d 521 (1975) (Burger, C.J., concurring). Even though the Supreme Court itself might give a prior summary affirmance less precedential value than an opinion of that Court treating the question on the merits, Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 1359 n. 14, 39 L. Ed. 2d 662 (1974), it does ...

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