decided as amended february 23 1979.: February 8, 1979.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Before Gibbons, Van Dusen and Rosenn, Circuit Judges.
This case presents a challenge to limits set by Pennsylvania's medical assistance statute, Pa.Stat.Ann. tit. 62 § 443.1 (Purdon Supp. 1978), for state benefits for hospitalization in private mental institutions.*fn1 Using the pseudonym "John Doe," the plaintiff sought declaratory relief and an injunction in the United States District Court for the Eastern District of Pennsylvania against the Pennsylvania Secretary of Public Welfare and others (collectively, the "State"). The injunction would have required the continuation of Doe's benefits for hospitalization in a private psychiatric institution even though the durational limit of the statute had been reached. When the district court denied a motion for a preliminary injunction, Doe appealed. 28 U.S.C. § 1292(a)(1) (1976). We affirm.
After an attempted suicide, Doe was admitted in April, 1978, to the Institute of Pennsylvania Hospital, a private psychiatric institution. Because of his financial circumstances, Doe qualified for benefits under Pennsylvania's medical assistance program. Pa.Stat.Ann. tit. 62 §§ 441.1, 441.2, 442.1 (Purdon Supp. 1978). Under this statute Pennsylvania has set durational limits on the benefits payable for hospitalization in a private mental institution. If a patient hospitalized in such an institution is older than 20 years of age and younger than 65, the law limits his benefits to payments for sixty days of hospital care in any "benefit period." Pa.Stat.Ann. tit. 62 § 443.1(4) (Purdon Supp. 1978).*fn2 The term "benefit period" is so defined that, after sixty days of hospitalization in a private psychiatric hospital, a patient can receive no further benefits as an inpatient in such an institution until he has passed sixty days in "which he is not an inpatient in a hospital." Pa.Stat.Ann. tit. 62 § 402 (Purdon Supp. 1978). After sixty days of hospitalization at the Institute of Pennsylvania Hospital, Doe was no longer eligible for benefits under the medical assistance program. But he was eligible for care in a State mental hospital. See Pa.Stat.Ann. tit. 50 §§ 7101-7503 (Purdon Supp. 1978). To avert his transfer from a private to a public mental hospital, Doe, as an individual and as representative of a class, brought this action to invalidate the part of Pa.Stat.Ann. tit. 62 § 443.1 that creates durational limits on benefits for hospitalization in a private psychiatric institution.
Doe contends that the Pennsylvania statute invidiously discriminates against him and against the class of which he is a member the mentally ill affected by the durational limit. Under Pennsylvania law, a person between 21 and 64 years of age is entitled to benefits for unlimited hospitalization for physical illness in a private general hospital. Pa.Stat.Ann. tit. 62 § 443.1(1) (Purdon Supp. 1978).*fn3 If a person between 21 and 64 years of age has been hospitalized in a private mental hospital, rather than a general hospital, he is limited to sixty days' benefits in any benefit period. Pa.Stat.Ann. tit. 62 § 443.1(4) (Purdon Supp. 1978). This distinction between hospitalization in a private general hospital and a private mental hospital, Doe argues, discriminates against the mentally ill and conflicts with the Federal Rehabilitation Act of 1973, 29 U.S.C. § 794 (1976), and with the Equal Protection Clause of the fourteenth amendment.*fn4
This appeal is from the denial of Doe's motion for a preliminary injunction. In deciding the motion, the district court focussed on whether Doe has shown: (1) that he would suffer irreparable harm in the absence of relief Pendente lite, and (2) that he was likely to succeed on the merits. See Delaware Port Authority v. Transamerican Trailer Transport, Inc., 501 F.2d 917, 919-20 (3d Cir. 1974), Quoting A.L.K. Corp. v. Columbia Pictures Industries, Inc., 440 F.2d 761, 763 (3d Cir. 1971).*fn5 To prove irreparable harm, Doe introduced testimony that care in private mental hospitals is better than that in public institutions. Doe also presented testimony that he suffered from a schizophrenic disorder, that the chances for his recovery would decline with the passage of time, and that his transfer from one hospital to another would disrupt his relationship with his psychiatrist and would damage his chances for recovery. On the basis of this evidence, the district court concluded that Doe had sufficiently shown irreparable harm. But the district court held that Doe had not demonstrated "a reasonable probability of eventual success in the litigation." A.L.K. Corp. v. Columbia Pictures Industries, Inc., 440 F.2d 761, 763 (3d Cir. 1971). We hold that the district court did not abuse its discretion in concluding that even if Doe has shown irreparable harm, his chances of success on the merits are too slight for the issuance of a preliminary injunction.*fn6 Because of this holding, we need not reach the issue of irreparable harm.
At oral argument, the State informed the court that Doe was transferred from the Institute of Pennsylvania Hospital to a public psychiatric hospital and that, after treatment, he has now been discharged from hospitalization. These circumstances suggest that Doe's claim might be moot.
Doe hopes to prosecute this suit as a class action, but as far as the record before us reveals, the district court has not yet certified the proposed class. Nonetheless, Doe's suit can proceed if Doe himself has a live claim.
We hold that Doe, as an individual, does have a live claim, at least for declaratory relief. See Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 121-22, 94 S. Ct. 1694, 40 L. Ed. 2d 1 (1974). The action that Doe challenges the State's denial of his request for more than sixty days of benefits for private psychiatric hospitalization ended when Doe ceased to be hospitalized. As Doe's counsel informed us at oral argument, Doe now seeks not the immediate payment of benefits, but declaratory and injunctive relief concerning future repetition of the events underlying this lawsuit. In Weinstein v. Bradford, 423 U.S. 147, 96 S. Ct. 347, 46 L. Ed. 2d 350 (1975) (per curiam), the Supreme Court set out the standards by which we are to rule upon the mootness of such a claim:
Sosna (V. Iowa, 419 U.S. 393, 95 S. Ct. 553, 42 L. Ed. 2d 532 (1975),) decided that in the absence of a class action, the "capable of repetition, yet evading review" doctrine was limited to the situation where two elements combined: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a ...