United States Court of Appeals, Second Circuit.: No. 653, Docket 77-6047

573 F.
2d 761
Kenneth KOE, Lawrence Loe, Mathew Moe, and Nathan Noe

(all
pseudonyms), on behalf of themselves and all
others similarly situated, Plaintiffs-Appellants,
v.
Joseph A. CALIFANO, Jr., as Secretary of the United States
Department of Health, Education and Welfare, et
al., Defendants-Appellees.
No. 653, Docket 77-6047.
United States Court of Appeals,

Second Circuit.
Argued Feb. 6, 1978.
Decided March 29, 1978.
Morton Birnbaum, Brooklyn, N. Y., for plaintiffs-appellants.

David L. Birch, Asst. Atty. Gen., New York City (Louis J. Lefkowitz,
Atty. Gen. of the State of New York, Samuel A. Hirshowitz, First Asst.
Atty. Gen., New York City, of counsel), for State defendants-appellees.
Cyril Hyman, Asst. U. S. Atty., Brooklyn, N. Y. (David G. Trager, U. S.
Atty. for the Eastern District of New York, Harvey M. Stone, Asst. U. S.
Atty., Brooklyn, N. Y., of counsel), for federal defendants-appellees.
Before FEINBERG, MANSFIELD and VAN GRAAFEILAND, Circuit
Judges.
FEINBERG, Circuit Judge:
This troubling lawsuit was brought by four aged and severely ill mental
patients, involuntarily committed to Pilgrim Psychiatric Center in Brentwood,
New York, against the Secretary of the United States Department of Health,
Education and Welfare (HEW), a Regional Commissioner of that Department
and the United States. The complaint alleges that plaintiffs, who sue under
pseudonyms to protect their identity, are "very poor," over 65 and chronic
patients. They seek to sue for themselves and on behalf of others similarly
situated. Plaintiffs claim that defendants improperly threaten to terminate
Supplemental Security Income (SSI) benefits of $25.00 a month, paid to
plaintiffs under Title XVI of the Social Security Act (the Act), 42 U.S.C.
1382(e)(1)(B). The litigation has had a complicated procedural history, which is
summarized in the margin but is not significant for resolution of the controlling
issue in the appeal now before us.1 That issue is whether Judge Neaher of the
United States District Court for the Eastern District of New York properly
dismissed plaintiffs' complaint against these federal defendants.
2
This suit was precipitated by a notice from an HEW official in October 1975 to
the Director of Pilgrim Psychiatric Center that the Center would no longer be
eligible for federal assistance under Title XIX of the Act, 42 U.S.C. 1396, et
seq., because the Center had lost its accreditation by the Joint Commission on
Accreditation of Hospitals (JCAH). As a result, the SSI $25.00/month benefits
paid to plaintiffs would also stop, because such payments to otherwise eligible
persons confined in a state institution are contingent upon the institution's
participation in a State plan approved under Title XIX, supra. Plaintiffs'
complaint alleged that Congress could not have intended to cut off these
meager benefits to indigent and chronically ill mental patients, committed to an
institution involuntarily, merely because the institution had lost its
accreditation. 2 Alternatively, plaintiffs maintained that if the Act did require
such accreditation as a prerequisite to SSI payments, the statute denied
plaintiffs the equal protection of the laws because unlike voluntary patients
plaintiffs cannot choose a hospital for treatment, and thus are
disproportionately victimized by the statute's application.
The threatened termination of the SSI benefits never materialized. In December

1975, the Social Security Administration discovered that another section of the
law allowed the SSI payments to continue at least temporarily. 3 Shortly
thereafter, JCAH recertified the Center for a one-year period.4 Because of these
developments, the district court held that plaintiffs' action had become moot
and it dismissed the complaint.
In this court, plaintiffs-appellants strenuously argue that the case is not moot
because the threat of loss of JCAH accreditation continues to hang over them.5
Indeed, plaintiffs suggested at oral argument that the present certification of
their hospital is undeserved. Defendants-appellees contest this, but urge as their
first point on appeal that the district court lacked jurisdiction over plaintiffs'
SSI claims because plaintiffs failed to exhaust their administrative remedies.
We think this contention is correct. In recent cases, the Supreme Court has
made clear that suits alleging an entitlement to social security benefits must
ordinarily meet the exhaustion requirements implicit in section 205(g) of the
Social Security Act, 42 U.S.C. 405(g), see Mathews v. Eldridge, 424 U.S.
319, 326-32, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Weinberger v. Salfi, 422 U.S.
749, 756-67, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975), even if constitutional
arguments accompany the requests for relief. Otherwise, there exists no ground
of federal jurisdiction upon which relief can be predicated.6 While the courts
have often been willing to find exhaustion where the issues posed are purely
constitutional and some resort has been had to the administrative process,7
neither criterion is satisfied here. Plaintiffs' complaint included an argument
regarding statutory construction that the agency was certainly equipped to
resolve;8 plaintiffs have not alleged exhaustion of administrative remedies and
lodged no protest with HEW regarding its threatened action prior to filing suit.
Cf. Mathews v. Eldridge, supra, 424 U.S. at 329, 96 S.Ct. at 900 ("Through his
answers to the state agency questionnaire, and his letter in response to the
tentative determination that his disability had ceased, (plaintiff) specifically
presented the claim that his benefits should not be terminated . . .."). We are
advised that had plaintiffs turned first to the agency with their complaint, their
SSI payments could not have been terminated pending final administrative
decision, regardless of the Psychiatric Center's certification status in the
interim.9
5
We conclude, therefore, that we must affirm the district court's dismissal of

plaintiffs' complaint. We are not unmoved by the passionate argument of
appellants' counsel, who has devoted years of unpaid time and effort to fighting
the deplorable conditions that characterize so many mental institutions.10 We
are told that while mental patients in New York are now receiving their
$25.00/month, thousands of others, who are involuntarily confined in nonaccredited hospitals elsewhere in the nation, have been denied these
payments.11 Plaintiffs' counsel also argues that no attorneys will represent these
unfortunate people in pressing their claims administratively, either because
there is little hope of recouping a fee or because of a discriminatory attitude,
perhaps unconscious, against the mentally ill.12 If it is true that counsel cannot
be obtained for such patients, it is cause for sadness and the immediate
attention of the organized bar in those locations where SSI benefits are being
denied because of loss of hospital accreditation. Obviously, whatever may be
their legal right to SSI benefits, patients in that situation are innocent victims of
the deficiencies of the hospital. The Congress might well wish to reconsider the
utility of making such persons pawns in the ongoing struggle to persuade states
to upgrade their psychiatric treatment facilities. But in the present posture of the
case before us, we have no choice but to affirm the judgment of the district
court.
Plaintiffs attempted to consolidate this action with Yoe v. Kolb, which

challenged the exclusion from Medicaid coverage of state mental patients
between the ages of 21 and 65. The district court dismissed Yoe on the ground
that it raised issues that had earlier been determined adversely to plaintiff's
position in Woe v. Mathews, 408 F.Supp. 419 (E.D.N.Y.1976), aff'd mem. sub
nom. Woe v. Weinberger, 562 F.2d 40 (2d Cir. 1977). The four aged plaintiffs
with whom this opinion is concerned entered the scene following a threatened
termination of SSI benefits, described in text infra, and an abortive effort by the
plaintiffs in Woe v. Mathews, supra, to amend their complaint to include
patients over the age of 65
The judgment of dismissal now challenged affected only federal defendants in
these actions; we are told that proceedings against various state defendants
remain pending in the district court.
Plaintiffs also sought a declaratory judgment that it was improper to deny Title
XIX federal aid payments to a state mental hospital on the sole ground that the
hospital had lost its accreditation. This issue has not been pressed on appeal
The Act, 42 U.S.C. 1382(e)(1)(B), permits payment of SSI benefits to state

mental hospital patients only if their institution is receiving federal Medicaid
payments. HEW has taken the position that discrete sections of unaccredited
mental hospitals may qualify for Medicaid payments if they can independently
meet federal accreditation requirements. The portion of Pilgrim Psychiatric
Center in which plaintiffs are confined received such accreditation, effective
December 12, 1975
We are advised that the term of accreditation was extended for an additional
year in April 1977
Plaintiffs' counsel points out that a monthly stipend of twenty-five dollars,

while inconsequential to most, assumes a very different light in the eyes of an
involuntarily institutionalized mental patient with no other source of income.
The hospital provides food and shelter, but for plaintiffs and their counterparts
it is only the SSI payments that make possible the purchase of personal items
essential to any human existence transcending bare subsistence. The loss of
such payments imposes a readily understandable burden; less obvious but
perhaps no less significant are the uncertainty and feelings of rejection inflicted
by the continuous threat of deprivation on those who have so little and are
mentally ill
The instant case involves Title XVI payments, whereas Eldridge and Salfi
construed claims under Title II of the Act. Although 42 U.S.C. 405(h)

unambiguously renders 42 U.S.C. 405(g) the only source of federal
jurisdiction that can be invoked in suits to recover Title II benefits, it might be
argued that these sections do not apply to claims of entitlement focused
elsewhere in the Act. But Title XVI incorporates the judicial review provisions
of Title II by reference in 42 U.S.C. 1383(c)(3), and at least one court has
assumed that the exhaustion requirements are applicable in the Title XVI
context. Wilson v. Edelman, 542 F.2d 1260, 1269-74 (7th Cir. 1976). The
Supreme Court has not restricted the Title II jurisdictional restrictions to claims
for benefits under that subpart of the Act; in Mathews v. Diaz, 426 U.S. 67, 96
S.Ct. 1883, 48 L.Ed.2d 478 (1976), these restrictions were held applicable to a
suit challenging the constitutionality of 1836 of Title XVIII, 42 U.S.C.
1395o , which prevents certain individuals from enrolling in the Medicare
supplemental medical insurance program
7
See, e. g., Mathews v. Diaz, supra; Mathews v. Eldridge, supra; Weinberger v.

Salfi, supra
Plaintiffs alleged that Title XVI did in fact require JCAH accreditation of
hospitals housing involuntarily committed inmates in order for such inmates to
retain SSI eligibility. Plaintiffs' constitutional claims are posed only "in the
alternative, if the statute does require (termination of benefits)."
See 20 C.F.R. 416.1336. At an earlier stage of this litigation, in which

plaintiffs' counsel participated, Judge Neaher filed an opinion which cited this
section and explained its utility for patients in plaintiffs' position. Woe v.
Mathews, 75-C-1029, at 4 (E.D.N.Y. Nov. 20, 1975), appeal dismissed, No.
75-8335 (2d Cir. Nov. 24, 1975)
10
Counsel for plaintiffs, who is also a doctor, commenced his exertions long
before the plight of institutionalized mental patients had attracted significant
public attention and concern. See Birnbaum, The Right to Treatment, 46
A.B.A.J. 499 (1960), described by Judge Wisdom as "(t)he seminal article" in
Donaldson v. O'Connor, 493 F.2d 507, 519 n.12 (5th Cir. 1974), vacated and
remanded, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975)
11
Plaintiffs unsuccessfully moved in the district court for class designation; the
parties dispute whether the proposed class was statewide or national in scope.
In view of the district court's lack of jurisdiction over plaintiffs' SSI claims,
certification would have been improper
12
Counsel characterizes this attitude as "sanism," and urges that it afflicts the
entire legal system

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573 F.

Kenneth KOE, Lawrence Loe, Mathew Moe, and Nathan Noe

United States Court of Appeals,

Morton Birnbaum, Brooklyn, N. Y., for plaintiffs-appellants.

The threatened termination of the SSI benefits never materialized. In December

We conclude, therefore, that we must affirm the district court's dismissal of

Plaintiffs attempted to consolidate this action with Yoe v. Kolb, which

The Act, 42 U.S.C. 1382(e)(1)(B), permits payment of SSI benefits to state

Plaintiffs' counsel points out that a monthly stipend of twenty-five dollars,

construed claims under Title II of the Act. Although 42 U.S.C. 405(h)

See, e. g., Mathews v. Diaz, supra; Mathews v. Eldridge, supra; Weinberger v.

See 20 C.F.R. 416.1336. At an earlier stage of this litigation, in which

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