The opinion of the court was delivered by: VAN DUSEN
VAN DUSEN, District Judge.
On March 28, 1966, the plaintiff, Dorothy L. Frankel, instituted this action, alleging that her Constitutional rights had been violated because, although she desires to apply for hospital insurance benefits available under the Social Security Amendments of 1965 (P.L. 89-97, 79 Stat. 286, 42 U.S.C. § 1395a et seq.), she cannot obtain such benefits without signing the application form (Form SSA-18), which she refused to sign since it contains the following disclaimer statement:
"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."
Plaintiff moves for an order to convene a three-judge court pursuant to 28 U.S.C. §§ 2282 & 2284 to declare unconstitutional § 103(b)(1)
of the Social Security Amendments of 1965 (hereinafter referred to as "the Act"), as well as for summary judgment. In addition, plaintiff seeks a permanent injunction prohibiting the use of the disclaimer on Form SSA-18 or on any similar form. The defendant has moved to dismiss the Complaint for lack of jurisdiction over the subject matter (Document 2) and has filed affidavits
in support of that motion.
Admittedly the plaintiff is a member of a class which is entitled to file an application under § 103(a) of the Act and, upon approval of such application, to receive hospital insurance benefits. The disclaimer here at issue has been inserted in Form SSA-18 pursuant to § 103(b) of the Act, which provides:
"(b) The provisions of subsection (a) shall not apply to any individual who -
Section 210(a)(17) of the Social Security Act (42 U.S.C. § 410(a)(17)) provides:
"(17) Service in the employ of any organization which is performed (A) in any quarter during any part of which such organization is registered, or there is in effect a final order of the Subversive Activities Control Board requiring such organization 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, and (B) after June 30, 1956; * * *."
The benefits available to persons eligible under the Act are divided into two categories. The first category, Medicare A, basically covers hospital costs; the second, Medicare B, covers doctors' fees. Eligibility under Medicare A is in no way related to eligibility under Medicare B (Futterman Affidavit #1, par. (6)).
Plaintiff, at the suggestion of the United States Attorney, has made application without objection for Medicare B (see attached letter from plaintiff's counsel dated 4/11/66), since the application form (SSA-40A) contains no disclaimer statement.
Plaintiff is now objecting solely to the application form for Medicare A (Form SSA-18), which formerly contained the contested disclaimer statement and now contains the question in footnote 1. There is no time limit for filing an application for benefits available under Medicare A, and there has been no allegation that plaintiff is now requiring hospitalization, in which case the benefits of Medicare A would be of value to her. The contention of counsel for the plaintiff, even if well founded, that plaintiff suffers now from an apprehension that she may fall ill at some future time and require hospitalization, is an insufficient allegation that enforcement of § 103(b) of P.L. 89-97 is threatened. In view of the plaintiff's refusal to accept the court's suggestion that she apply for Medicare A and cross out the disclaimer (see attached letter of 3/29/66 and paragraphs 2 & 3 of Futterman Affidavit #2), the record will not support a claim of immediate irreparable harm.
A three-judge court should not be convened where there is no present need for injunctive relief. As the court said in Brotherhood of Locomotive Fire. & E. v. Certain Carriers, etc., 118 U.S.App.D.C. 100, 331 F.2d 1020, 1022 (1964), cert. den. 377 U.S. 918, 84 S. Ct. 1181, 12 L. Ed. 2d 187 (1964):
"It is well understood that a plaintiff is not entitled to a three-judge court merely because he prays for an injunction against the enforcement of a statute he claims is unconstitutional. There must at least be an ...