Bryan v Koch Appellees Brief

    To be argued by 
BRt'CE S . i KAPLAN

’ED STATES COURT OF-. APPEALS 
FOR THE SECOND' CIRCUIT.

3RYAN
w m .

I. KOCH,

NACMI;BOYD, e

■ m v *  ' -H’ APPEAL FROM;,AN ORDER 
NITED^STATES.DISTRICT 
HE SOUTHERN DISTRICT O

ALLEN fSCHWAFT’2 , 
'^..Corporation, Counsel of t 

City of New York.- 
-^.•Attorney for Qi.ty Defend Appel.,.eo-.s
f  loo Charci 0 StreeV- v. * *'}

New York,- New York i-OOG?
■ (212) 6-451?



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TABLE OF CONTENTS

Page

Preliminary Statement 2.
Questions Presented 6
Statement of the Case 7

A. The Pleadings and the Parties 7
B. The Motions to Enjoin Closure

of Sydenham 12
C. The New York City Municipal

Hospital System 13
D. Sydenham Hospital 15

1. Services Provided 15
2. Fiscal Performance 18

E. The Sydenham Neighborhood
Family Care Center 20

ARGUMENT:
THE DISTRICT COURT CORRECTLY
EXERCISED ITS DISCRETION IN
DENYING PRELIMINARY INJUNCTIVE
RELIEF BASED UPON A FULL
EVIDENTIARY RECORD AND DETAILED
FINDINGS OF FACT 22

POINT I: THE DISTRICT COURT'S ORDER AND 
OPINION CLEARLY MERIT AFFIRMANCE UNDER THE 
COURT'S APPLICABLE STANDARDS OF REVIEW 22

a. The District Court's findings of 
fact were not "clearly erroneous" 
and are amply supported by the 
record 25

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b. The District Court correctly held that 
proof of a prima facie case of violation 
of Title VI (42 U.S.C. 2000(d) requires
a showing of discriminatory intent. 27

c. The District Court was not required to 
give special deference to the 
interpretation by HHS of Title VI
and attendent regulations 31

d. The District Court correctly concluded 
that even if the standard most favorable

►- to plaintiffs were applied preliminary
injunctive relief would still be
unwarranted 35

POINT II. THE DISTRICT COURT CORRECTLY HELD THAT 
PLAINTIFFS HAVE NOT SUFFERED AND ARE NOT
THREATENED WITH IRREPARABLE HARM 37

CONCLUSION



TABLE OF AUTHORITIES
Table of Cases

Page

Board of Education v. Califano, 584 F .2d 
576 (2nd Cir. 1978) aff'd sub. nom.
Board of Education v. Harris, 100 S. Ct. 
363 (1979)

29, 30, 31

Board of Education v. Harris, 100 S. Ct. 
363 (1979)

29

Buffalo Courier-Express Inc. v. Buffalo 
Evening News, Inc., 601 F.2d 48 (2nd Cir. 
1979)

25

Dallas Cowboy Cheerleaders v. Pussycat Cinema 
Ltd., 604 F.2d 200 (2nd Cir. 1979)

22, 23, 38

Dopp v. Franklin National Bank, 461 F.2d 873 24
(2nd Cir. 1972)

Esquire v. Ringer, 591 F.2d 796 (D.C. Cir. 1978) 32
Fairfax Nursing Center, Inc., v. Califano, 33, 34
590 F.2d 1297 (4th Cir., 1979)
Ford Motor Credit Company v. Milhollin 32, 34
48 U.S.L.W. 4145 (Feb. 20, 19F0l
Forts v. Ward, 566 F.2nd 849 (2nd Cir., 1977) 24
Inmates of Attica Correctional Facility v. 23
Rockefeller, 453 F.2d 12 (2nd Cir. 1971) * &
Jack Kahn Music Co., Inc, v. Baldwin Piano 23
& Organ Company, 604 F.2d 755 (2nd Cir. 1979)
Jackson v. Conway, 476 F. Supp. 896 (E.D. Mo., 197^^
Jackson v. New York City Health and Hospitals 36
Corp. 419 F. Supp. 809 (S.D.N.Y., 1976)



Page

Jefferson v. Hackney, 406 U.S. 535 reh. den. 29, 35
409 U.S. 898 (1972)
Lau v. Nichol* 414 U.S. 563 (1974) 28, 29
Orvis v. Higgins, 180 F.2d 537 (2nd Cir. 24
1950) , cert, denied, 340 U.S. 810 (1950)
Parent Assoc, of Andrew Jackson H.S. V. 30, 31
Ambach, 598 F.2d 705 (2nd Cir. 1979)
Personnel Administrator of Mass. v. Feeney, 28
442 U.S. 256 (1979)
Pride v. Community School Board, 482 F.2d 22, 23
257 (2nd Cir. 1973)
Regents of the University of California v. 28, 30
Bakke, 438 U.S. 265 (1978)
San Filipo v. United Brotherhood of Carpenters 24
and Joiners, 525 F.2d 508 (2nd. Cir. 1975)
State of New York v. Nuclear Regulatory Commission, 22, 38 
550 F .2nd 745 T2nd Cir. 1977)
Treibwasser & Katz v. American Telephone and 22, 23
Telegraph Co., 535 F.2d 1356 (2nd Cir. 1976)
United States v. Bexar County et al., No. SA 78 49
CA 419 (W.D. Texas, filed Feb. 20, 1980)
Washington v. Davis, 426 U.S. 229 (1976) 27, 29

Statutes, Rules and Regulations
Emergency School Aid Act, 20 U.S.C. §1601 et seq. 30
45 CFR 80.3(b) (l)-(3) 31
Title VI of the Civil Rights Act of 1964 8, 9
42 U.S.C. §2000d, et seq
42 U.S.C. §1983 8 ' 9



Federal Rules of Civil Procedure
Page

Federal Rules of Civil Procedure 19 8
Federal Rules of Civil Procedure 52(a) 23, 25

Constitutions
United States Constitution 8, 9
Fourteenth Amendment

Other Authorities

C.E. Clark, Special Problems in Drafting and 24 
Interpreting Procedural Codes and Rules 
3 Vanderbilt L. Rev. 493 (1950). 9
9 Wright and Miller Federal Practice 24
and Procedure §2587



I

UNITED STATES COURT OF APPEALS 
FOR THE SECOND CIRCUIT

x
DAVID E. BRYAN, JR., et al. 

v.
EDWARD I. KOCH, et al.

x
NAOMI BOYD, et al.

80-6085
80-7401

v.
PATRICIA HARRIS, et al.

x

ON APPEAL FROM AN ORDER OF THE 
UNITED STATES DISTRICT COURT FOR 
THE SOUTHERN DISTRICT OF NEW YORK

APPELLEES' BRIEF

Appellees the City of New York !(the "City"), 
Edward I. Koch, New York City Health and Hospitals Corpora­
tion ("HHC"), and Joseph Hoffman (hereinafter referred to 
as "City defendants") submit this brief to urge that 
the District Court's order of May 15, 1980, which denied 
plaintiffs' motions for temporary and preliminary 
injunctive relief barring the closure of Sydenham Hospital, 
be affirmed by this Court.

r . W



that Sydenham is the one item which it 
is most justified in cutting." (Am. Op.
46-47.)
The District Court also expressly found that 

plaintiffs failed to show possible irreparable harm, and 
that, in the circumstances here presented, the balance of 
hardships tips against issuance of an injunction (Am. Op. 
47-50). Thus plaintiffs failed to satisfy this Circuit's 
requirements for issuance of a preliminary injunction, not 
only under the "likelihood of success" and "serious questions 
portions of the standard, but in toto.

After an exhaustive analysis of the the parties' 
legal and factual claims, of the evidence, and of the 
credibility and competence of the witnesses, the District 
Court concluded:

"Under these circumstances, a substantial 
showing should be required before a federal 
court adds yet another obstacle in the neces— ̂ 
sarily painful decision—making process. Parti­
cularly during the current fiscal crisis, the 
strong public interest in effective and econo­
mically sound local government is an important 
factor to be weighed in the equitable balance.
At least some reasonable chance of success on 
the merits and evidence of greater possible harm 
should be required before a federal court adds 
to the difficulty and cost of our local and 
state governments by enjoining long—considered 
decisions pending final, often long-delayed, 
judicial determinations." (Am. Op. 49-50.)
We submit that the District Court's exercise of

its discretion to deny injunctive relief here was eminently
sound, and well founded. It merits this Court's approval
and affirmance.

5



QUESTIONS PRESENTED
1. Should the District Court be reversed where 

it has exercised its discretion to deny preliminary in­
junctive relief upon a full record of evidence and testi­
mony; and has rendered detailed findings of fact that are 
supported in the record and are not clearly erroneous?

2. Should this Court countermand the painful 
but purely political decision by local government officials
to close Sydenham Hospital where:

(a) Sydenham is a 107 bed facility which
admits only 10 inpatients per day on average and is 
surrounded in Northern Manhattan by five hospitals with a 
combined bed complement of about 4,294 beds, which hospitals 
admit approximately 245 inpatients per day on average and 
have, on average, over 650 empty beds per night;

(b) Ten percent of Sydenham's patients reside 
in the Bronx, in which there exists ample unused hospital 
bed capacity in both the municipal and voluntary sectors;

(c) Ten percent of Sydenham's patients reside 
in Brooklyn, Queens, and lower Manhattan (i»e ., below 96th 
Street), in which there exists ample unused hospital, bed 
capacity in both the municipal and voluntary sectors;

(d) Sydenham's emergency department treats 
only 70 patients per day on average, only a small fraction 
of wliom are true emergencies, and two other hospital emer­
gency-rooms are located only five and ten city blocks away

6



from Sydenham;
(e) Sydenham's emergency department does not 

even qualify as a "general emergency department" (i.e., one 
capable of treating life-threatening emergencies on a 
regular basis) and has been recommended for removal from
the Northern Manhattan ambulance matrix;

(f) The City and HHC have expanded the hours
of the Sydenham Neighborhood Family Care Center to improve 
ambulatory and primary care service to area residents as 
part of a larger program to establish a primary care net­
work of facilities and services for the people and communities
of Harlem.

STATEMENT OF THE CASE
A. The Pleadings and Parties

This litigation consists of three actions, two 
begun during the summer of 1979, and the third commenced 
April 30, 1980. Bryan v. Koch, 79 Civ. 4274 (ADS) and 
District Council 37 v^ Koch, 79 Civ. 4329 (ADS) were filed 
in the United States District Court, Southern District of New 
York, on August 16, 1979, and September 12, 1979, respectively, 
and consolidated by order filed October 10, 1979.

The central allegations of the Bryan and DC _3_7 
actions are identical. They both charge the City of New 
York, the State of New York, and various individuals and 
agencies with intentional discrimination against blacks and

7



Hispanics through alleged reductions in municipal hospital 
services in violation of the Fourteenth Amendment to the 
United States Constitution, Title VI of the Civil Rights 
Act of 1964, 42 U.S.C. § 2000(d), and the rules and regula­
tions thereunder, and of the Civil Rights Act of 1866 and 
1871, 42 U.S.C. §§ 1981 and 1983. (Bryan Complaint 11 32;
DC 37 Complaint 111! 23-24.)

The City defendants answered the Bryan and DC 37
complaints (on October 6 and 9, 1979) denying all material 
allegations, and asserting various affirmative defenses.
The state defendants served their answer in the consolidated 
action on November 2, 1979, denying all allegations of wrong­
doing against the State, denying knowledge or information 
concerning various other allegations, and asserting a number 
of affirmative defenses.

The United States Department of Health, Education 
and Welfare ("HEW")* was included in the caption of named 
defendants in the Bryan action, purportedly pursuant to 
Fed. R. Civ. P. 19 (Bryan Complaint 11 20), but was not 
charged with any violation of law. HEW appeared in the 
litigation by Notice of Appearance dated October 15, 1979, 
and attended all proceedings. HEW did not take any position 
on the merits until the afternoon of May 14, 1980, when it

* Now called "Health and Human Services," ("HHS")

8



delivered a letter to the District Court urging issuance of 
a preliminary injunction.

On April 30, 1980, the Boyd v. Harris action,
80 Civ. 2417 (ADS), was commenced in the Southern District 
against HHS Secretary Patricia Harris and the City defendants. 
The central allegations of the Boyd action relevant to this 
appeal charge the City defendants with refusing to cooperate 
with an ongoing Title VI investigation being conducted by HHS 
and "actually delaying, impeding and obstructing such investi­
gation”; continuing plans to close Sydenham (and Metropolitan) 
although no Title VI investigation has been completed; and con­
tinuing to make announcements as to the closings of these 
hospitals and curtailment of services, thereby creating a 
crisis of morale and an exodus of staff. This alleged 
wrongdoing is said to constitute an intentional violation of 
the Fourteenth Amendment to the United States Constitution, 
Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000(d), 
and the rules and regulations thereunder, and the Civil Rights 
Acts of 1866 and 1871, 42 U.S.C. §§ 1981 and 1983.

Ten individuals and one Labor organization sued 
as plaintiffs in the Bryan and DC 37 actions. Bryan was 
brought as a purported class action, with five individuals 
listed as named plaintiffs. DC 37, which was not brought 
as a class action, had as plaintiffs five individual members
of DC 37 and the union itself.

- The only Bryan plaintiff who claims ever to have

9



used Sydenham Hospital is Ebun Adelona, a graduate student 
of medical anthropology at Columbia University who has 
access to, but declines to use, the Columbia medical 
facilities (Exh. UU, p. 16). Ms. Adelona has never used 
the inpatient services scheduled for closure, but she 
testified at her deposition that she went to the Sydenham 
emergency room when she injured her shoulder playing basket­
ball at Columbia's gym (Exh. UU, p. 45). In connection 
with that injury, Ms. Adelona was advised to apply heat to 
her shoulder, which she did (Exh. UU, p. 52).

Plaintiff David E. Bryan, Jr. alleges that he is 
Executive Secretary of the Metropolitan Council of Branches 
of the NAACP (Comp. 11 5) . Mr. Bryan was grievously injured 
in an automobile accident while he was vacationing on the 
island of Jamaica, and is now hospitalized at Columbia 
Presbyterian Medical Center, according to plaintiffs' counsel

The other Bryan plaintiffs are Minnie Winfree, 
whose residence is only a few blocks from Sydenham but who 
uses the outpatient and inpatient facilities at Harlem 
Hospital (Exh. BBB, p. 19); Celeste Feaster, a Brooklyn, New 
York resident who lives a ten minute walk from Cumberland 
Hospital (a municipal hospital) which she uses and a 15-25 
minute walk from Brooklyn Hospital (a voluntary hospital) 
which she also uses, and where five of her children were 
born (Exh. XX, pp. 11-12, 19, 36-37). Altagracia Tejeda, 
who resides at 8 West 105th Street, New York City, alleges

10

■srw**'



that she uses Metropolitan Hospital. She was not produced 
for deposition because of ill health.

DC 37 plaintiffs Annie Norris, Robert Booth, 
Elizabeth Girodes, and Daniel Edwards, are all City employees 
and as such participate in the health plan of their choice, 
whether it be Major Medical/Blue Cross, HIP/Blue Cross, GHI/ 
Blue Cross, or DC 37's own Med-Plan* (Ryan Aff. 1MI 3-7).

As an additional benefit to their employees, 
however, the HHC hospitals offer medical services in 
addition to group coverage (Exh. AAA, pp. 34-35). It is 
the alleged diminution in these ancillary benefits, these 
courtesy services, which the DC 37 plaintiffs allege will 
cause them irreparable harm.

None of the ten individual plaintiffs in the Bryan 
and DC 37 actions was produced to testify at the evidentiary 
hearing in the District Court. City defendants offered into 
evidence the transcripts of all their depositions (except 
for plaintiffs Bryan and Tejeda who were not deposed), as 
part of City defendants' case (Def. Exh. UU, W ,  WW, XX, YY—1, 
YY-2, ZZ, AAA, and BBB).

As noted above, the Boyd action was not commenced

* Miriam Falcon, a DC 37 plaintiff, no longer works for 
HHC, but attends Hostos College, a few blocks from 
Lincoln Hospital, another municipal hospital (Exh. YY-1, 
p. 21; Exh. YY-2, p. 48). Mrs. Falcon does not allege 
use of Sydenham Hospital.



until approximately two weeks after the evidentiary hearing
in the Bryan case had concluded. Plaintiffs in Boyd include
four individuals, two of whom claim to be patients who use
the services of Sydenham Hospital, and four coalition groups.
Defendants have not yet served their answer in Boyd, and
no discovery of plaintiffs has yet taken place.
B. The Motions to Enjoin Closure of Sydenham

On February 9, 1980, the Bryan plaintiffs moved
for an order, pendente lite, enjoining the City defendants,

"from closing the inpatient services and 
emergency room of Sydenham Hospital or 
alternatively from closing said inpatient 
services and emergency room until such 
defendants demonstrate to the satisfaction 
of the Court that the population currently 
served by Sydenham Hospital has guaranteed 
access to inpatient and emergency services 
provided without unreasonable burdens on 
black and Hispanic persons."
The District Court conducted an evidentiary hearing 

on the motion commencing March 6, 1980 and concluding April 
17, 1980. Twenty-three witnesses testified. The evidentiary 
record totalled nearly 2,000 pages of testimony, included 
more than 140 exhibits, and was supplemented by twenty-four 
affidavits. The testimony and evidence was digested and 
argued to the Court in more than five hundred pages of briefs.

On April 30, 1980 the Boyd plaintiffs moved for 
a temporary restraining order and preliminary injunction to 
bar the City defendants from closing, reducing, or modifying 
Sydenham and/or Metropolitan Hospitals. Plaintiffs in Boyd



accepted the hearing record compiled in Bryan as complete 
for purposes of their motion.
C. The New York City Municipal Hospital System

The New York City municipal hospital system 
contains 17 of the 27 municipal hospitals in the United 
States (Wagner Aff. II 6) . It is comprised of 13 acute 
care hospitals (four of which are in Manhattan) and four 
long-term care facilities for the care of the chronically 
ill and infirm (Goodwin Aff. 11 4). The City hospital 
system is by far the larget of its kind in the country.
In calendar year 1979, the system provided 242,288 inpatient 
admissions, 4,306,630 outpatient clinic visits, and 
1,402,602 emergency department visits (Wagner Aff. H 6).
New York's municipal hospitals provide to those who present 
themselves for treatment all necesary health care, without 
regard to race, natoinal origin, or ability to pay. No 
contrary allegation is made; and none could be sustained.

The following chart sets forth in summary form 
some of the "vital statistics" about the 13 acute care 
municipal hospitals.

The City of New York supports its hospital system 
with a subsidy of about $500 million in tax levy funds 
annually. The budget appropriated to and on behalf of HHC 
for fiscal year 1980 constitutes over 10 percent of the total 
expense budget of the City of New York about $1.2 billion.

13



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And, the City's tax levy subsidy to HHC has, 
increased during the fiscal years 1977 through 1979. Accord­
ing to the Bureau of Accounting in the Office of the Comptroller 
of the City of New York, tax levy payments in the following 
amounts have been made to HHC in past years: for FY 1977,
$371 million; for FY 1978, $514 million; for FY 1979, $528 
million; and for FY 1980, over $528 million (Tr. 1359-60).
The above amounts are in addition to all third-party sources 
of revenue.

At the same time that City tax levy subsidies 
to HHC have increased, the patient work load of HHC has 
steadily declined (Tr. 1365). Furthermore, while the 
fiscal crisis has forced the City to reduce its work force 
by 23 percent since FY-76, with many reductions in police, 
fire, sanitation and other essential services for which 
there was no decline in demand, HHC has reduced its work 
force by only 9-1/2 percent over the same period 
(Tr. 1365; Op. 14). Thus, the record fully supports the 
District Court's finding that "reducing HHC was not only 
imperative, it was equitable" (Am. Op. 14; Tr. 1352-53,
1357-64).
D. Sydenham Hospital

1. Services Provided
Sydenham Hospital, built in 1925, is the smallest 

of New York's 13 acute care municipal hospitals (Goodwin 
Aff. 1 8). The hospital is located at 565 Manhattan Avenue 
near West 124th Street in Central Harlem (Exh. 39-A, p. 712;

15



Exh. FFF). In fiscal 1979, Sydenham admitted only 3,711 
inpatients (only 1.5 percent of HHC's total; G°°dwin Aff- 
U 8; Exh. EEE) and treated only 25,690 emergency room patients 
(only 1.8 percent of HHC's total; Goodwin Aff. 11 8; Exh. EEE). 
On an average day during FY 1979, there were only 93 inpatients 
at Sydenham (1.4 percent of HHC's total for acute care faci­
lities; Goodwin Aff. 11 9).

Sydenham Hospital is a provider of general, routine, 
inpatient hospital care (Exh. EEE). No unique or specialized 
inpatient services not readily available elsewhere are pro­
vided.* No obstetrical services and no specialized pediatric 
inpatient services are available (Exh. EEE). Many patients 
admitted to Sydenham suffer from complications of alcohol or 
other substance abuse (Tr. 131, 132). In addition, the 
hospital inappropriately houses a great many elderly, 
chronically ill patients who receive "alternate care" equi­
valent to that which they would and should receive in a nursing 
home or facility for the chronically ill (Carter Deposition, 
p. 147; Tr. 1952-53).

Sydenham has three operating rooms in which routine 
surgical procedures are performed. No highly specialized

The District Court notes that Sydenham now houses the largest 
specialized dental care clinic for children in the Harlem 
area (Am. Op. n. 2). This, however, is an ambulatory service 
that will be provided by the Sydenham NFCC (Pfost Aff. 1̂ 17, 41) 
and also provided by the Lower Washington Heights NFCC (Pfost
Aff. 11 46-47 referring to Exh. C)

16



surgery, such as thoracic, heart, peripheral vascular surgery, 
or neurosurgery, is performed there.

As shown on the Uniform Statistical Report for FY- 
79 prepared by Sydenham Hospital, only 1,355 surgical procedures 
were performed all year —  fewer than 4 per day on the average 
(Exh. EEE). Of these, the principal surgical procedures were 
abortions and removals of benign growths.

The emergency room at Sydenham treated only 25,690 
patients in FY 1979 —  only 70 per day on the average (Exh.
EEE). At Harlem Hospital, 93,500 emergency room visits 
occurred during the same year (an average of 256 patients 
per day; Goodwin Aff. 11 8), and at Kings County Hospital, 
whose emergency room is the busiest in HHC, 268,648 emergency 
room patients were treated in FY 1979 (an average of 736
patients per day; Goodwin Aff. 11 8) .

Access to Sydenham's emergency room requires 
climbing ten steep steps or use of an outmoded freight-type 
elevator which is manually operated. There is no full-time 
attendant for the elevator and its use requires ringing a 
bell and waiting for a guard to operate the elevator (Tr.
1792).



2. Fiscal Performance
According to analyses by the State of New York,

HHC, and OMB, Sydenham Hospital's cost per day of inpatient 
care consistently ranks among the highest in the municipal 
system. The chart on the following page compares all 13 
municipal hospitals in terms of costs according to various 
calculations.

As this chart amply demonstrates, the difference 
between the cost per inpatient day of service rendered and 
the amount reimbursed by Medicaid* at Sydenham is by far the 
highest in the municipal system, despite the fact that approxi­
mately 94 percent of all patient days are reimbursed by 
insurers or other reimbursers (Exh. EEE, p. 6). This disparity 
has a two-fold result: (1) It causes a substantial operating
deficit each year at Sydenham for HHC (Exhs. AA and LL), and 
(2) The City of New York must fund this deficit with its 
limited tax levy funds.

The City's Office of Management and Budget, working 
with HHC and personnel official records, has estimated that 
if Sydenham is closed before the end of fiscal year 1980, 
savings of over $9 million in fiscal year 1981 will result.
In June 1979, the FY 1981 savings were projected at $3,245 million. 
More current data showing very poor Sydenham collections 
combined with a decline in Sydenham's Medicaid reimbursement 
rate for 1980 resulted in a much higher deficit and thus a 
much higher savings estimate.

* Sydenham's Medicare effective'daily^rate is slightly lower 
than its Medicaid rate, while its Blue Cross rate is slightly 
higher.

18



Hospi tal
1978 1 

Step Down 
Cost

FY-1980 
Expenses per 

WIPSU*

1980
Allowable
Medicaid

Cost**

1980
Medicaid Rates 

Effective 
1/1/80**

i
Percentage of 
•Rate to Allowable 
____ CPSt, j

North Central Bronx*** $412.80 $198.28 $480.68 $386.46
T 1

80% ; \

Sydenham 382.40 208.49 452.96 231.25 51%
Lincoln*** 382.19 179.72 441.27 353.90 80%
Metropolitan 307.65 188.63 363.34 346.33 95% fI
Queens General 294.56 219.31 349.21 268.07 77%

Greenpoint 292.22 195.02 346.54 299.33 86%

Bellevue*** 288.91 192.17 338.91 276.17 82% [

Harlem 283.73 196.88 335.66 266.78 80%

Bronx Municipal 271.66 179.39 321.11 288.33 90%

Coney Island 264.13 183.06 313.07 285.80 91%
a\

Cumberland 263.12 181.56 311.19 311.19 100%

Kings County 235.75 194.40 281.12 270.04 96%

Elmhurst 225.88 155.25 267.31 267.31 100%
—— — — —— — — — — — — — —— — — — — ——  -  ; r

* Affidavit of John Goodwin sworn to on March 5, 1980, Exhibit A. WIPSU is a Weighted Inpatient Service i [
Unit which is an attempt to take each service, inpatient, outpatient, emergency roan, intensive care, |
etc.: and weight each against an inpatient day.

** Plaintiffs' Exh. 88. These rates are set by the State of New York annually, according to a formula 
which takes work load and costs from 1978 (for 1980) and trends them forward by a variety of factors 
to achieve a current cost based rate (Tr. 1642-43).

*** These are new hospitals (Lincoln and NCB) or there is a new building at the hospital (Bellevue), ljhus
substantial debt service cost is included in each calculation of the cost of an inpatient day. |
Goodwin Affidavit, 11 13. The inpatient step-down cost calculation is performed to'allcw reimbursers j |
such as Medicaid, Medicare, and Blue Cross to calculate reimbursement rates. | i

1



E. The Sydenham Neighborhood Family Care Center

The Health and Hospitals Corporation together with 
the Harlem Hospital Center has developed a plan to provide 
the Harlem community with comprehensive and continuous 
primary care instead of episodic emergency room treatment 
or highly fragmented disease specific care in the outpatient 
clinics (Pfost Aff. H 8). The plan provides for outpatient 
clinic (OPD) reorganization in both Harlem and Metropolitan 
Hospitals, the establishment of a Harlem Primary Care Network, 
the expansion of hours in the Sydenham NFCC, and the expansion 
of the Lower Washington Heights NFCC (Pfost Aff. H9).

All these ambulatory care services are characterized 
by group practice delivery. All providers and support staff 
become members of teams which function independently and are 
accessible to their patients at all times. Patients are 
discouraged from utilizing hospital emergency rooms without 
being referred by a team practitioner. Medical services are 
provided to each patient under the direct supervision of the 
primary care physician who coordinates referrals for specialty 
and inpatient care (Pfost Aff. 11 11) .

The Sydenham NFCC, located at 215 West 125th Street, 
is the first comprehensive treatment center in the municipal 
hospital system. The center, which replaced the outpatient 
department at Sydenham Hospital, opened in January of 1972, 
and provided approximately 60,000 visits in 1979. The clinic



is now structured to provide service through the primary care 
group practice mode of delivery (Pfost Aff. H40).

The closure of Sydenham Hospital will not in any 
way affect the provision of ambulatory care in the immediate 
service area of the NFCC. The Sydenham NFCC will not only 
continue its present patient workload but has in fact expanded 
its hours of operation on weekday evenings to 8 p.m. and on 
Saturday mornings from 9 a.m. to 12 noon (Kelsky Aff. 1111 2-6) .
It is estimated that the additional hours of operation will 
initially enable the facility to provide 7,200 more visits 
per year. Furthermore, should the demand for service exceed 
these estimates, it is the Corporation's intention to add 
additional personnel until clinic capacity has been reached 
or the demand for services has been met (Pfost Aff. 1141) .

Upon the closure of Syndenham Hospital, the NFCC 
will be transferred to the Operating Certificate of the Harlem 
Hospital Center. In addition, the facility will be included 
in the Harlem Primary Care Network (Pfost Aff. 1111 12-15) and 
act as a major referral link in the operations of the ambulatory 
care delivery system. Transferring the NFCC to the operating 
certificate of Harlem Hospital will have a beneficial effect 
upon the recruitment of physicians, since Harlem, unlike 
Sydenham, is a teaching institution (affiliated with Presbyterian 
Hospital) and recruitment of physicians is easier for 
teaching institutions (Pfost Aff. UU 42-43).

T

21



ARGUMENT
THE DISTRICT COURT CORRECTLY 
EXERCISED ITS DISCRETION IN 
DENYING PRELIMINARY INJUNCTIVE 
RELIEF BASED UPON A FULL 
EVIDENTIARY RECORD AND DETAILED 
FINDINGS OF FACT ______

POINT I: The District Court's Order and Opinion
Clearly Merit Affirmance Under This Court's 
Applicable Standards of Review______________
This Court has recently reiterated the showing

that a party seeking a preliminary injunction must satisfy,
making clear that such relief is appropriate only where the
party seeking it shows possible irreparable injury. In
addition, the moving party must establish:

either (1) probability of success on the 
merits or (2) sufficiently serious questions 
going to the merits to make them a fair 
ground for litigation and a balance of 
hardships tipping decidedly in the movant's 
favor.

Dallas Cowboys Cheerleaders, Inc, v. Pussycat Cinema, Ltd.,
604 F .2d 200, 206-207 (2nd Cir. 1979).

Further, this Court has emphasized that such preliminary 
relief can be granted only upon a "clear showing that the 
movant is entitled to the relief," State of New York v. Nuclear 
Regulatory Commission, 550 F.2d 745, 750 (2nd Cir. 1977)
(emphasis in original) citing Treibwasser & Katz v. American 
Telephone & Telegraph Co., 535 F.2d 1356, 1358 (2nd Cir. 1976) 
and, further, that in making such a showing the movant bears 
a heavy burden. Pride v. Community School Board, 482 F.2d 
257, 264 (2nd Cir. 1973).

t
t-
-[

22



While Dallas Cowboys Cheerleaders was not a "civil 
rights" case, there is no reason to apply a different standard
in a civil rights or other constitutional action at this 
procedural stage. Pride, supra, 482 F.2d at 264, n. 9; see 
also, Inmates of Attica Correctional Facility v. Rockefeller,
453 F.2d 12, 20 (2nd Cir. 1971).

The District Court issued its decision pursuant to 
Fed. R. Civ. P. 52(a), setting forth extensive findings 
of fact and conclusions of law. Rule 52 (a) provides in pertinent 
part that:

Findings of fact shall not be set aside 
unless clearly erroneous, and due regard 
shall be given to the opportunity of the 
trial court to judge of the credibility 
of the witnesses.
This Court has stated on numerous occasions the 

standards of review which should govern the consideration 
of an appeal from the denial of preliminary injunctive relief.

First, an appellate court may always review the 
decision of the court below for errors in the application of 
the relevant law. Treibwasser & Katz v. American Telephone 
& Telegraph Co., supra.

Second:
"As a general rule an appellate court will 
reverse the grant or denial of a preliminary 
injunction only upon a clear showing that 
the District Judge abused his discretion."
Jack Kahn Music Co., Inc, v. Baldwin Piano 
& Organ Company, 604 F.2d 755^ 758 (2nd Cir.
1979) .

23



An exception to this general rule may exist in 
this Circuit with regard to cases where an injunction has 
been granted by the District Court on a paper record containing 
only affidavits, pleadings and briefs. In such a case the 
appellate court is "in as good a position as the district judge 
to read and interpret the pleadings, affidavits and depositions, 
Popp v. Franklin National Bank (Kaufman, C.J.) 461 F.2d 873,
879 (2nd Cir. 1972);* accord, Forts v. Ward, 566 F.2d 849, 
n. 8 (2nd Cir. 1977).

In any event, the "enlarged appellate review 
permitted in Popp has been interpreted as discretionary and 
not mandatory, Orvis v. Higgins, 180 F.2d 537 (2nd Cir.), cert^ 
denied, 340 U.S. 810 (1950); San Filipo v. United Brotherhood 
of Carpenters and Joiners, 525 F.2d 508, 511 (2nd Cir. 1975).

In the consolidated cases under review here, the 
District Court rendered its decision based upon a full 
evidentiary record established during thirteen days of hearings 
which included testimony of 23 witnesses, more than 140
exhibits and 24 affidavits.

Therefore, defendants-appellees respectfully submit
that the appropriate standard of appellate review here is

* This notion of enlarged appellate review is not without 
criticism. See Popp v , Franklin National Bank, supra, 
at 886-889 (dissenting opinion. Justice Tom Clark) and 
the discussion by former Chief Judge of the Second Circuit 
Charles E. Clark (who drafted the Federal Rules of Civil 
Prpcedure), at 3 Vanderbilt L. Rev. 493, 506 (1950). See 
also, the discussion of Rule 52 in 9C. Wright and A. Miller, 
Federal Practice and Procedure: Civil § 2587 at 740-749 
(1971)7 —

24



whether or not the district judge clearly abused his discretion.*
In addition, of course, the District Courts specific factual find­
ings are reversible only if clearly erroneous. (Fed. R. Civ. P. 52(a))

(a) The District Court's findings of fact 
were not "clearly erroneous" and are 
amply supported by the record._______

The District Court found among other things that 
the decision to close Sydenham Hospital was based upon a 
racially neutral, rational decision-making process (Am. Op.
16-17; Exh. 1, pp. 56-57; Tr. 1365-1371), necessitated by an 
uncontraverted fiscal crisis which since becoming widely 
recognized in 1975 has plagued the City of New York (Tr.
1352-1353; Am. Op. 14).

* This Court's decision in Buffalo Courier-Express, Inc, v. 
Buffalo Evening News, Inc., 601 F.2d 48 (2nd Cir. 1979) 
(Friendly, J.) is, we think, an exception that tends to 
prove the rule. There this Court held that a full review 
of the record was appropriate notwithstanding the fact that 
the district judge's decision was based, in part, upon a 
short (2 day) evidentiary hearing. The full review and 
ultimate reversal of the district judge's order in that 
case was based upon an erroneous conclusion of law, by the 
lower court, which, as the case law indicates, renders the 
order reviewable as is any conclusion of law, Buffalo Courier, 
supra, 601 F.2d at 59. The District Court found that Courier 
has shown a "clear probability of success on the issue of 
specific intent to monopolize" based essentially upon a 
showing that a competing newspaper was offering a free copy 
of its new, Sunday issue as a promotional device. This 
Court's decision to reverse turned on its disagreement 
with the District Court on substantive anti-trust law 
questions (601 F.2d at 54-56), combined with what appears 
to be this Court's sense that the District Court applied 
the powerful remedy of injunctive relief too quickly upon 
too thin a record. (Id. at 52.)

25



As a result of this crisis severe fiscal constraints 
had to be imposed. The overall City work force was reduced 
by approximately 23 percent although HHC, with a declining 
patient work load, only reduced its work force by 9-1/2 percent 
(Tr. 1365). As of November-December 1978, despite substantial 
cuts in police, fire, sanitation and other essential services,
HHC had suffered relatively inconsequential reductions. In
order for the City to balance its own budget it had to implement
actions to close a $60-$80 million estimated HHC deficit
without increasing tax levy support. As early as January 1979
the City sought to implement planned reductions at HHC in
conjunction with increased revenue-producing activities (Tr. 1357-64).

In this context, FY-80 expenditure reductions at HHC 
were imperative. Serious efforts were begun to identify a 
means to achieve these savings. Planning officials had 
determined from widely accepted data (and state regulations 
10 NYCRR 709.2) an excess capacity of hospital beds existed in 
New York City (Tr. 1369). Because empty beds carry a high 
percentage of fixed-costs, it was determined by the City's 
Office of Management and Budget that closure of entire 
facilities maximized dollar savings, rather than random bed 
reductions or selective elimination of services (Tr. 1370).

The Mayor's Health Policy Task Force, formed in mid- 
April 1979* (Tr. 1385-1386), performed an intensive study and

* A good" deal of preliminary work had already been done prior 
to the Task Force's creation by a working group composed of 
representatives of HHC, OMB (Office of .Management and Budget) 
and the Mayor's Office (Tr. 1373, 1382).

26

• / n ' f r w



\

►
!

rendered a report (Exh. 1) which presented recommended actions 
designed to reduce health care costs and at the same time 
increase the overall efficiency of hospital services in New 
York City.

One of the recommendations of this report (Exh. 1) 
was the closure of Sydenham Hospital. The District Court 
found as fact, inter alia, that Sydenham's fiscal performance 
was the poorest in the municipal system (Am. Op. 17); that 
its physical plant was inefficient and in need of extensive 
renovation (Am. Op. 17; Exh. GG, 1[10; Exh. FF; Tr. 1771-73) , 
its emergency room was small, ill-equipped, not capable of 
routinely treating critical emergencies (Am. Op. 21-22, 
Poliafico Aff. 1118) , and that its small inpatient work load 
could be absorbed at other large, better equipped, proximate 
hospitals (Am. Op. 17, 21; Exh. T, U, V; Tr. 807-14).

(b) The District Court correctly held that
proof of a prima facie case of violation 
of Title VI (42 U.S.C. 2000(d)) requires 
a showing of discriminatory intent._____

It is beyond dispute that the legal standard that 
governs relief under the Equal Protection Clause of the 
Fourteenth Amendment requires proof that the challenged law 
or conduct "ultimately be traced to a racially discriminatory 
purpose," Washington v. Davis, 426 U.S. 229, 240 (1976). In 
Washington the Supreme Court conclusively put an end to the 
use of an impact inquiry as a substitute for a finding of

27



actual discriminatory purpose or intent stating: "[d]ispro- ..
portionate impact is not irrelevant, but it is not the sole 
touchstone of invidious racial discrimination forbidden by 
the Constitution." Id. at 242.

The Court below added:
"Furthermore, although the foresee­

ability of a racially adverse impact is 
still a proper consideration in determining 
discriminatory purpose, a foreseeable adverse 
impact in itself is insufficient to prove 
discriminatory purpose," (Am. Op. 5 citing, 
inter alia, Personnel Administration of Mass, 
v. Feeney, 442 U.S. 256, 279, n. 25 (1979).
The District Court correctly noted that the foregoing

legal standards permit parties to prove discriminatory purpose
by inference from objective evidence, but properly concluded
that based upon the objective evidence offered by plaintiffs
no racially motivated animus could be inferred (Am. Op. 5-26).

Based upon the clearly expressed views of seven
Justices of the United States Supreme Court, the District Court
further held that only those actions or conduct which violate
the Equal Protection Clause of the Fourteenth Amendment violate
Title VI of the Civil Rights Act of 1964 (Am. Op. 27-47).

Thus, one cannot ignore or mistake the views of
Mr. Justice Brennan (writing in Regents of the University of
California v. Bakke, 438 U.S. 265, 339-40 (1977) for Justices
White, Marshall and Blackmun) that Congress equated Title Vi's
prohibitions with the commands of the Fifth and Fourteenth
Amendments, and that a reevaluation of Lau v. Nichols, (414

28



U.s. 563 (1974)) is required, especially in light of the 
Court's subsequent decision in Washington v. Davis, supra,*
438 U.S. at 352.

Nor can one ignore or mistake the views of Justices 
Powell, Stewart and Rehnquist (dissenting in Board of Education 
v. Harris, 100 S. Ct. 363 (1979)) that Title VI contains a 
standard of intentional discrimination, not merely one of 
disparate impact.

In the case at bar, the District Court rejected
"[p]laintiffs' attempt to minimize 

the import of these opinions by character­
izing them as 'confusing dicta.' They are 
not so easily dismissed. They appear to 
represent the views of at least seven 
Justices. The reason underlying these 
'dicta,' moreover, and in particular Justice 
Brennan's penetrating analysis of the legis­
lative history of Title VI, strongly indicate 
that the Court will find that the standard 
of discrimination under Title VI has evolved, 
and was intended to evolve, parallel to the 
standard embodied in the equal protection 
clause. At present this standard is one of 
discriminatory motive, as described above."
(Am. Op. 34.)
Moreover, even assuming that the standard of proof 

in a Title VI action is in fact an "unsettled" question, it 
cannot be concluded that this Court's decision in Board of 
Education v. Califano, 584 F.2d 576 (2nd Cir. 1978), aff'd, 
as modified, sub, nom. Board of Education v. Harris, 100 S. Ct. 
363 (1979), was binding on the Court below.

* See algo Jefferson v. Hackney, 406 U.S. 535, 550 n. 19, 551, 
reh. cten. 409 U.S. 898 (1972).

29



In Califano, this Circuit affirmed the deter­
mination by HEW to deny assistance to the petitioner under 
the Emergency School Aid Act (ESAA) and Title VI solely on 
the basis of a statistical disparity in teacher assignments. 
Despite the Supreme Court's in-depth analysis of Title VI 
in Regents of the University of California v. Bakke, 438 U.S. 
265 (1978), this Court without expressly discussing the impact 
of Bakke* based its decision in Califano, in part, on an 
"effects" standard, analogizing Title VI claims of employment 
discrimination to Title VII of the Civil Rights Act of 1964.

It is equally true and of considerable significance that the 
Supreme Court in subsequently affirming the Califano decision 
in Board of Education v. Harris, supra, limited its affirmance 
to the standards under ESAA and clearly stated that it found 
no surprise in the fact that Congress might impose a stricter 
standard under ESAA than under Title VI:

"It does make sense to us that Con­
gress might impose a stricter standard 
under ESAA than under Title VI of the 
Civil Rights Act of 1964. A violation 
of Title VI may result in a cutoff of 
all federal funds, and it is likely

As noted by a different panel of this Court in Parent 
Assoc, of Andrew Jackson High School v_;_ Ambach, 598
F.2d 705,”716 (2nd Ci'r. 1979): ^That case (Califano] 
did not expressly consider the impact of the Bakke 
opinions on the continued authority of Lau v^ Nichols 
[414 U.S. 563 (1974)]."



that Congress would wish this drastic 
result only when the discrimination is 
intentional. In contrast, only ESAA 
funds are rendered unavailable when an 
ESAA violation is found. And since 
ESAA funds are available for the 
furtherance of a plan to combat de 
facto segregation, a cutoff to the 
system that maintains segregated 
facilities seems entirely appropriate."
62 L. Ed. 2d at 290.
Furthermore, shortly after its decision in Califano, 

this Court found an intent standard of proof was required under 
Title VI in a school desegregation case, Parents Assoc, of 
Andrew Jackson High School v. Ambach, 598 F.2d 705 (2nd Cir.
1979), concluding:

"Plaintiffs urge, nevertheless, 
that a desegregation order may be pre­
dicated upon the Civil Rights Act of 
1964, arguing that under Title VI, 42 
U.S.C. § 2000(d), segregative effects 
alone without discriminatory intent, 
establish a prima facie violation. We 
think, however, that Title VI does not 
authorize federal judges to impose a 
school desegregation remedy where there 
is no constitutional transgression —
i.e., where a racial imbalance is merely 
de facto." Id. at 7]5 (emphasis in original).

(c) The District Court was not required to
give special deference to the interpreta­
tion by HHS of Title VI and attendant 
regulations._________________ _______________

Plaintiffs-appellants, as well as HHS, vigorously
argued to the District Court that HHS's interpretation and
"approach" to the regulations promulgated pursuant to Title
VI (45 CFR 80.3(b) (l)-(3)), which had been "developed for
this case," "should be dispositive" (HHS Supp. Mem. 3, 13)

31



of this action and that HHS's interpretation of these regula­
tions as set forth in informal letters (Am. Op. n. 28) and in 
a post-trial memorandum should be accorded greater "deference" 
than a court accords to the contentions of litigants in 
general. The District Court noted such arguments (see Am.
Op. 36-48), but nonetheless rejected HHS's informal inter­
pretation of its Title VI regulations.

HHS and plaintiffs-appellants relied heavily for 
their "deference" argument on the case of Ford Motor Credit 
Company v. Milhollin, 48 U.S.L.W. 4145 (U.S. Feb. 20/ 1980). 
There, the Supreme Court in upholding the Federal Reserve 
Board's (FRB) interpretations which were set forth in a 
series of formal opinions, stated that "considerable respect" 
and "deference" should be accorded such interpretations. Plain' 
tiffs-appellants in relying on Ford overlook the reasoning of 
the Court. Due to the "highly technical" nature of the Truth 
in Lending Act (TILA) the Court was reticent to overturn the 
FRB's position. Id*, at 4148. See also, Esquire v. Rinaer,
591 f .2d 796 (D.C. Cir. 1978) (copyrights). This reticence 
was supported by the fact that the TILA had been amended 
twice to promote reliance on FRB pronouncements. Congress' 
action was seen as an "unmistakable congressional decision 
to treat administrative rulemaking and interpretation under
the TILA as authoritative," Id. at 4148.

While HHS does have experience in the fields of
health care and civil rights, unlike TILA and copyrights,

.. — . .. im  f  _ ■ w i ■

32



oversight and enforcement of these areas require less 
technical expertise. Moreover, HHS's specific experience 
with Title VI investigations is quite limited.

Plaintiffs-appellants have also ignored the fact 
that the TILA expressly sanctioned formal opinions by the 
FRB. These opinions are published in the Federal Register 
and the public has an opportunity to comment on them. Id^ 
at 4148. No such imprimatur of validity has been granted 
HHS's informal interpretation of Title VI in the instant 
case, nor has there been an opportunity for public comment
on such interpretation.

Fairfax Nursing Center, Inc, v . Califano, 590 
2d 1297 (4th Cir. 1979) also advanced in support of plaintiffs- 

appellants' position, concerned aij agency manual challenged 
as a disguised agency rule. While HHS correctly pointed 
out that the manual was accepted by the court because it
was not "unreasonable or inconsistent with statutory 
authority," (Id. at 1301), HHS ignored the fact that the
regulation itself could be readily understood and the manual 
imerely clarified" the regulation.

Indeed, Fairfax Nursing Center, Inc, v. Califano 
established a clear distinction between regulations and in­
formal letters of opinions

"The Secretary (of HEW] is not free to 
promulgate regulations and then change 
their meaning by 'clarifications' or 
'interpretations' issued without formal 
notice and comment. To do so would 

- frustrate the policies of fair notice
and comment in the Administrative Procedure 
Act." 590 F.2d 1297, 1301 (4th Cir. 1979).



Thus, neither the formal opinions of the FRB in 
Ford nor the clarifying manual in Fairfax are similar in any 
way to the informal ad hoc standard promulgated by HHS in, 
and particularly for, this case. As the Court commented:

"HHS suggests, by the fact that its 
proposed standard is written with New York 
City expressly in mind, that this test will 
be applied only to hospital systems such as 
New York's. That result would be especially 
pernicious, and would constitute an ad hoc 
rule that has the effect, whatever its motive, 
of restricting the City's flexibility despite 
its relative generosity to its poor. Of the 
27 municipal hospitals in this nation, the 
City funds 17. Many are located in heavily 
minority areas; for example, 3 of 4 Manhattan 
hospitals are in or adjoin Harlem. The effect 
of HHS's rules, therefore, will be to enable 
the federal government to prevent or delay most 
major modifications in service, even as the 
federal government's fiscal policies force 
the City to pay a substantial part of its total 
hospital costs. The standard HHS suggests 
could not have been better designed to dis­
courage other cities or states from following 
New York City's example in serving its needy."
(Am. Op. 43-44).

HEW's disarray and uncertainty as to its own policy 
for Title VI investigations is exemplified by how it handled 
a Title VI complaint which attacked the proposed closure of 
acute care and inpatient services at Homer G. Phillips 
Hospital, a municipal hospital in St. Louis, Missouri.

In June 1979, HEW advised St. Louis that it would not conduct 
an investigation until it had published a policy interpretation 
setting forth the conditions under which a hospital closure 
could violate Title VI. HEW never issued such a policy

3 4



interpretation, but later commenced an investigation anyway.
A motion for preliminary injunction of the closure was denied 
by the District Court in St. Louis. Jackson v. Conway, 476 
F. Supp. 896 (E.D. Mo. 1979).

The District Court below declined to adopt an 
interpretation of the regulations (45 CFR 80.3) that would 
preclude not only those actions which intentionally discriminate, 
but also those actions which had a "disproportionate impact" 
not probative of discriminatory intent (Am. Op. 36-42).

Such an approach, the District Court held, would 
"far too readily shift to cities and states the burden of 
justifying many governmental decisions ... Before this burden 
of justification is itself justified, at least some evidence 
of disparate impact probative of discriminatory motive should 
be established." (Am. Op. 44.)*

(d) The District Court correctly concluded
that even if the standard most favorable 
to plaintiffs were applied, preliminary 
injunctive relief would still be 
unwarranted. ___________________________

The District Judge compiled a substantial evidentiary 
record in this case in order to permit a judgment as to the

* See also the Supreme Court’s cautious approach to "naked 
statistical arguments" in Jefferson v. Hackney, 406 U.S. 
535, 548 (1972).

35



legality of closing Sydenham even if HHS's approach were
deemed valid. (Am. Op. 46.) And it found, after reviewing
the extensive evidentiary record, that the extraordinary
remedy of a preliminary injunction was not warranted. The
proof convincingly demonstrated that the closure of Sydenham
Hospital would affect but a small number of people and that
the City defendants had convincingly demonstrated to the
District Court’s satisfaction that if the effect constituted
a legally cognizable harm, which it does not, Jackson v.
New York City Health & Hospitals Corp. 419 F. Supp. 809
(S.D.N.Y. 1976), no less harmful alternative existed to
achieve a legitimate need of the local government.

"The evidence establishes that the closing of 
Sydenham has been undertaken by the City to 
achieve the legitimate objectives of reducing 
expenditures and increasing efficiency, both 
unrelated to race, color, or noational origin. 
Furthermore, the closing of Sydenham is an 
objective that cannot be achieved without at 
least some adverse consequences, having what 
HHS calls a "disproportionate adverse effect." 
The City has convincingly demonstrated that 
it has a reasonable basis for cutting health 
services costs, as a matter of equity and 
necessity, and that Sydenham is the one item 
which it is most justified in cutting."
(Am. Op. 46-47).

Sydenham Hospital treats the second fewest (Exh. 12) 
number of black and Hospanic patients in the municipal hospital 
system (Tr. 922-923). Only Coney Island Hospital in Brooklyn 
(a much larger hospital facility, Exh. 39, p. 237) treats 
fewer lilack and Hispanic patients than Sydenham.

36



Thus, what the District Court held through many- 
detailed and specific findings of fact was that even if the 
burden of justification was viewed as having shifted to the 
City defendants, that burden was satisfied by the proof 
submitted to the Court.
POINT II: The District Court Correctly Held That Plaintiffs

Have Not Suffered And Are Not Threatened With
Irreparable Harm__________________ __________ ______

Although the District Court's opinion gives primary 
attention to the lack of merit of plaintiff's legal claims, 
it clearly holds as well that plaintiffs have failed to demonstrate 
irreparable harm.

"Because plaintiffs have failed to meet their 
burden on the merits of this case, no discussion 
of irreparable harm is necessary. But even assuming 
that plaintiffs' position were correct, or that there 
were substantial questions to be resolved, preliminary 
injunctive relief in this case would still be unwarranted. 
The fact that closing Sydenham will have some effect 
on the community it now serves is insufficient to 
find irreparable harm in the circumstances of this 
case; decisions to cut services like this one inevitably 
involve adverse consequences of some degree. And 
given the City's demonstrated need to effect major 
cost-savings, the possible effects in this case are not 
substantial compared to the effects of another equally 
cost-effective hospital closing." (Am. Op. 47-48.)

As part of its discussion of plaintiffs' claims of 
irreparable injury, the District Court stated:

"In fact, as indicated above, plaintiffs' alternate 
claim for preliminary injunctive relief in this case 
has been satisfied, in that the City has demonstrated 
to this Court's satisfaction that alternative inpatient 
and emergency facilities are available for Sydenham 
patients without reasonable burdens. See note 6, supra. 
These findings that satisfy plaintiff's alternative 
request for preliminary relief, would appear to be 
strong evidence that plaintiffs have failed to 
demonstrate irreparable injury."

- (Am. Op. 49.)

37



^ review of the record makes clear that plaintiffs 
have failed to satisfy the threshhold requirement for in­
junctive relief in this Circuit that possible irreparable 
harm must be shown, Dallas Cowboy Cheerleaders v. Pussycat 
Cinema Ltd., 604 F.2d 200, 206-207 (2nd Cir. 1979), and that 
such irreparable harm must be actual and imminent, not 
speculative. State of New York v̂ _ Nuclear Regulatory Commis­
sion, 550 F.2d 745, 755-756 (2nd Cir. 1977).

Of the 14 individuals and 5 organizations named 
as plaintiffs in the three actions before this Court, only 
three individuals and two organizations claim any connection
whatever to Sydenham Hospital.

Of the five Bryan plaintiffs only one, Ebun Adelona
(who also sues on behalf of her daughter Nzinga), alleges 
use of any services at Sydenham.* Neither Ms. Adelona, a 
candidate for the PhD degree at Columbia University (Exh.
UU, p. 16), nor Nzinga, who commutes to pre-school in Mt. 
Vernon, New York (Exh. UU, 19-21), has used the inpatient 
facilities at Sydenham (Exh. UU, p. 26), but both have used 
its emergency room services, Nzinga for treatment of a 
bruised leg (Exh. UU, pp. 36-40) and for a fever (Exh. UU,

Minnie Winfree, another Bryan plaintiff, lives a few blocks 
from Sydenham (Exh. BBB, p. 19) but elects not to use 
Sydenham. She elects, instead, to go to Harlem Hospital 
(Exh. BBB, pp. 35, 36, 42).

38



fi

pp. 31-34), and Ms. Adelona, on two occasions, for a sore 
shoulder (Exh. UU, pp. 45-52) , all non-urgent, non-emergent 
cases.

Of the eight Boyd plaintiffs, only two individuals, 
Naomi Boyd and Elizabeth Smith, allege use of Sydenham Hospi­
tal. (Because of the-very recent commencement of the Boyd 
action, filed April 30, 1980 after the close of Bryan 
evidentiary hearing, no depositions were taken of the Boyd 
plaintiffs.) The complaint (at U1| 7 and 10) reveals the 
following information. Both Ms. Boyd and Ms. Smith allege 
many years of residence in Harlem. Mrs. Boyd lives at 70 
East 108th Street (Boyd Aff. 11 2) (20 blocks from Sydenham
but only 16 from Metropolitan, and even fewer from St. Lukes 
and Mt. Sinai). Mrs. Smith lives at 125 West 112th Street 
(16 blocks from Sydenham, but only 9 from St. Lukes, 15 from 
Mt. Sinai, and approximately 20 from Metropolitan). Both 
also allege use of Sydenham clinics. These clinics, known 
collectively as the NFCC, were never slated for closure, will 
not be closed, and as a matter of fact are being expanded 
(Pfost Aff. U 41, Kelsky Aff. 1111 2-6). Ms. Smith alleges 
"occasional" use of the Sydenham emergency room.

Plaintiff Citywide Coalition to Save Our Hospitals 
has a membership which includes individuals who use Sydenham 
and who allege they "will be harmed by [its] closing." (Boyd 
Compl. U 3.) Plaintiff The. CcnmunityCoalition to-Save Sydenham Hospital

39



has a membership of individuals who use Sydenham and who "will 
be severely harmed by [its] closing." No details are provided.

None of the five individual DC 37 plaintiffs 
has ever been a consumer of Sydenham's medical services.
(Exh. W ,  p. 10; Exh. ZZ, p. 15; Exh. WW, p. 12; Exh. AAA, pp. 
13, 19, 20; Exh. YY-1, pp. 21, 33.)

Further, the closure of emergency and inpatient 
services at Sydenham will not result in diminished or inferior 
health care to any class of plaintiffs the District Court 
might certify. Health care in the community will, in fact, 
be improved as a result of actions now being implemented by 
the HHC. This conclusion is clearly supported by the record 
below which contains ample evidence that Sydenham's physical 
plant is inadequate and that both the inpatient and emergency 
services offered by the hospital are inferior to those offered 
by larger, more modern neighboring institutions.

Sydenham Hospital is physically located in Harlem 
at 565 Manhattan Avenue (Exh. 39-A, p. 712; Exh. EEE).
Although most of the hospital's patient work load comes from 
Harlem (Exh. 39-A, p. 712; Exh. R; Tr. 799-800), the work 
load is more dispersed over the northern Manhattan area than 
that of Harlem Hospital (Exh. 39-A, p. 712). Sydenham has 
107 certified beds (Goodwin Aff. 11 8) , including three drug 
detoxification beds and 104 general care medical surgical 
beds (Exh. EEE). The facility has no certified intensive 
care unit, no coronary care unit, no pediatric beds, no

40



maternity beds, or bassinets for newborns (Exh. EEE).
The Hospital's average daily inpatient census in 

1979 was 93 (Goodwin Aff. 11 8). For fiscal 1979, Sydenham 
accounted for only 1.4 percent of the municipal hospital 
system's average daily acute inpatient census and 1.5 percent 
of the system's total acute admissions (Goodwin Aff. 11 9).

Of the 3,737 inpatient discharges from Sydenham 
in FY 1979, 529 or 14 percent were Medicare patients; 652 or 
17.4 percent were Blue Cross/Blue Shield patients; 1,999 
or 53.5 percent were Medicaid and Title V patients; 298 or 
8 percent were self pay in full; 89 or 2 percent were treated 
free of charge; and 19 or 0.5 percent were deemed "other," 
a category including those who partially paid for their
treatment (Exh. EEE, p. 6).

The Sydenham emergency department has only one
treatment room of approximately 160 square feet equipped 
and available for a cardiac arrest, multiple trauma, or 
emergency surgical procedure (Poliafico Aff. 11 18, referring 
to Exh. F, p. 10). As part of the Emergency Medical Service 
System's ongoing emergency department categorization process 
(Tr. 311-315), Sydenham Hospital's administrators sought 
evaluation only as a "general emergency department" (Polia­
fico Aff. 11 18). By requesting only a general classification, 
the hospital acknowledged that it was not routinely capable
of treating critical emergencies.

r Further, on April 11, 1980, the E.M.S. System's

41



Matrix Committee recommended that Sydenham Hospital not be 
included in the Northern Manhattan ambulance matrix at all, 
not even as a "general" department (Poliafico Aff. 11 20).

The failure of Sydenham's emergency department 
to qualify under E.M.S.'s review as even a general emergency 
department and its removal from the matrix for ambulance 
drops both reflect negatively on the quality of care, and 
preclude any valid contention that irreparable harm will 
flow from its closure.

Moreover, of Sydenham's 25,690 total annual emer­
gency room visits —  about 70 per day (Poliafico Aff.; Exh.
F) —  only a small fraction are true life-threatening 
emergency department visits (Poliafico Aff. 11. 17; Tr. 1683; 
Exh. 1, p. 158). Exhibit 1 at page 158 states that 5 percent 
of the emergency room patients are emergent (severely ill or 
injured requiring immediate attention); 10 percent are urgent 
(significantly ill or injured requiring care within several 
hours); and 85 percent non-urgent (no significant alteration 
in morbidity or mortality occurs with a substantial delay). 
Thus, Sydenham's emergency room treats 3 to 4 emergent 
patients per day.*

This small volume of actual emergencies is

* This small figure is consistent with the testimony of 
plaintiffs' witness Mr. McAllen, a paramedic m  E.M.S 
(Tr. 370-371).

42 —



significant in two respects. First, hospitals having extensive 
experience in handling emergency cases such as trauma offer 
better care to these patients than hospitals like Sydenham 
which receive only a few such cases, because the skill and 
teamwork involved in the complex task of treating such 
patients are improved by practice and repetition (Poliafico 
Aff. 11 16) .

Second, it is clear that such a small volume of 
emergency cases can be treated by emergency rooms of the 
many hospitals in the vicinity of Sydenham: Joint Diseases/
North General (6 blocks away); St. Lukes (10 blocks away); 

Harlem (approximately 18 blocks away).* St. Lukes Hospital, 
for example, treats a fluctuating number of patients —  from 
250 to 500 per day--in its emergency room (Tr. 290) and according 
to Mr. Glenn Barber of St. Lukes (one of plaintiffs' witnesses), 
50 additional patients per day could be seen in St. Lukes' 
emergency room.

In addition, the Emergency Medical Service (E.M.S.), 
a unit of HHC responsible for City ambulance service, has 
more ambulance tours in Northern Manhattan than it did two 
years ago (Murray Aff. 11 11). These tours include seven 
Advanced Life Support (A.L.S.) tours compared to two in

No emergency department can refuse emergency medical care 
to anyone in need regardless of ability to pay (New York 
State Public Health Law S 2805- (b).

*



July 1978 (Murray Aff. 11 12).** After Sydenham's closure, 
the EMS Operations Center in Maspeth, New York will closely 
monitor the emergency call density in the Sydenham area.
If their data analysis identifies a need for an additional 
ambulance unit in the area, every effort will be made to 
meet that increased need (Murray Aff. 11 15) . When, for 
example, Logan Hospital closed in February 1979, EMS 
immediately increased the number of ambulance tours in 
Northern Manhattan (Murray Aff. 11 10) .

Non-emergent and non-urgent patients —  85 percent 
of the Sydenham emergency work load (Exh. 1, p. 158) —  do 
not require emergency room treatment and are in fact better 
served by adequate primary care. Accordingly, HHC has 
expanded the hours and capacity of the Sydenham Neighborhood 
Family Care Center (NFCC), and the Lower Washington Heights 
NFCC (Pfost Aff. 11 9, Kelsky Aff. 11 2-6) to absorb non-emergency 
patients (Dickstein Aff. 11 28; Exh. 1, p. 158). Moreoever, 
HHC has planned and is in the process of implementing a 
primary care network including two clinics located in area 
housing projects, two storefront clinics, and an outreach 
program to community residents (Pfost Aff. 11 14) . These 
clinics will improve health care in a low cost setting for

** ALS ambulances are staffed and equipped to provide 
in the scene emergency medical treatment such as 
intravenous infusion of fluids and medications 
(Hr. 338) including Narcan to narcotic overdose 
victims (Poliafico Aff. 11 23). Narcan is a 
medication which can quickly counteract the effects 
of heroin and other narcotics and can revive a 
comatose overdose victim (Tr. 133)

44



the community in furtherance of the national health planning 
objectives set forth in Public Law 96-79.

Thus, the small number of emergency room patients 
at Sydemham will be treated as appropriate at nearby hospitals, 
by the EMS or by the Harlem primary care network. No rational 
community health plan could permit the retention, in a period

of severe fiscal constraint, of a concededly inadequate 
emergency room serving a tiny percentage of true emergencies
in an outmoded facility six blocks from one hospital and 10 
blocks from another, and whre ambulance services have been 
increased and improved —  not cut back —  during the past two 
years.

The closure of Sydenham's tiny inpatient facility 
will have little, if any, negative impact upon the quality of 
health care in Harlem, and patients will clearly not be 
harmed thereby. The best indicator of possible harm to Sydenham's 
inpatient work load is that of access to alternate facilities 
if the hospital is closed. Access means not only geographic 
but financial access* to other hospitals with comparable 
services and sufficient absorptive capacities.

Sydenham admits approximately ten inpatients per 
day (Tr. 827). One patient, on the average, is a Bronx

* Patients with Medicare, Medicaid or other insurance 
(85% of Sydenham's work load) have financial access 
to voluntary as well as municipal hospitals.

45



resident, and another is, on the average, a nonresident of 
Harlem, coming from Brooklyn, Queens, or another location 
(Exh. T, Exh. U. Exh. V) . Assuming nonresidents of Manhattan 
would receive treatment in their home boroughs, only eight 
inpatient admissions per day* would have to be distributed 
among Harlem, Presbyterian, Joint Disease (now "North General"), 
Mt. Sinai, and St. Lukes, the major hospitals serving northern 
Manhattan. Whether the theoretical redistribution is that of 
the Mayor's Plan (Exh. 1) or of the Klemperer** analysis 
(Exh. T, U, V), travel times to alternate facilities 
are not execessive (30 minutes in the Mayor's Plan (Exh. 1, 
p. 46) and no more than 16 minutes for Manhattan patients 
in the Klemperer construct (Tr. 814); patients with no 
medical coverage have access to municipal hospitals which 
will treat them free of charge (Tr. 811-812; Exh. 1, pp. 47-48); 
and absorptive capacity of a sufficient number of receiving 
hospitals is assured.

The Court below observed at page 21 of its amended 
opinion that some hospitals upon which Sydenham patients would 
have to rely are close to or at capacity, but noted as follows:

* This figure would be even smaller if one took into
consideration the view of health planners that at least 
10 percent of inpatient days do not reappear in other 

_ hospitals when a facility closes (Exh. 1, p. 280; Tr. 820).
~ city defendants' access analyses presented to the District 
Court did not "take credit" for this, but instead assumed 
that all Sydenham patient days to be accommodated elsewhere.

** Peter Klemperer, Director of Hospital Statistics for HHC 
(Tr. 781, 803).

46



Plaintiffs dispute the validity and relevance 
of the Plan's average occupancy rate computa­
tions, which, they contend, were based on 1978 
occupancy data. In particular, plaintiffs 
maintain that for calendar year 1979, three of 
the six alternative hospitals, Joint Disease,
Mt. Sinai, and St. Luke's, had average medical- 
surgical bed occupancy rates of 91.4, 94.8, and 
91.1 percent respectively, all in excess of the 
90% inpatient rate which the Mayor's Plan acknow­
ledges as the generally used maximum rate for 
municipal hospitals. They further urge that 
the latest available data indicates that the 
rates for these three hospitals, as well as 
hospitals city-wide, have risen even higher, to 
points at or near capacity levels. The receipt 
of additional inpatients from Sydenham which 
the City Plan projects would, they contend, 
exacerbate the already too high occupancy rates.
For example, based on the 1979 figures, Joint 
Diseases would have an average rate of 95 per­
cent, and St. Luke's, 96 percent.
While plaintiffs' statistics suggest that 
hospitals are operating at or near capacity 
levels, it is important to evaluate their figures 
in context. First, it appears that many hospitals 
attempt to maximize their occupancy rates by 
eliminating beds so as to increase the applicable 
state reimbursement rates. (Tr. 244-45) Second, 
occupancy rates are normally determined accord­
ing to the number of general medical-surgical 
beds in a hospital and thus do not reflect 
the availability of specialized beds which 
would be able to receive Sydenham patients.
Because of Sydenham's small size, 104 of its 
107 beds are certified as "medical/surgical" 
beds, i.e. for general medical and surgical care.
In larger hospitals, while most beds are certi­
fied as "med/surg", there are also beds certified 
for such specialties as "pediatrics", "obstetrics", 
"mental hygiene" and "psychiatry." Sydenham 
treats some patients with problems falling into 
all these categories (other than obstetrics), and 
thus, after closure, some of Sydenham's patients 
could be.treated in beds other than "med/surg" 
at other hospitals. Finally, the evidence 
strongly suggests that many inpatients at Sydenham 
are kept in a hospital only because social service 
agencies fail to place them in other, more 
appropriate facilities. (Tr. 1973-76) These 
individuals will not need to be transferred to

47

•y11 »■ ■ f *  w . * v J J "



hospitals. (Am. Op. note 14)*
The Court also observed that even if some of the

hospitals are operating above the recommended 90 percent
occupany rate, as a whole the six hospitals within twenty
minutes [Joint Disease, Mt. Sinai, Presbyterian, Harlem,
St. Lukes and Bronx Lebanon (Concourse Division)] will be
able to accommodate the additional admissions which Sydenham's
closing could necessitate, and that in particular, strong
evidence supports the City's assumptions that Joint Diseases
will remain open and could be expanded. (Am. Op. n. 15)

Moreover, the Court commented, at page 21, that
Presbyterian Hospital alone could absorb Sydenham's entire
patient work load, noting:

The HSA Report notes that Presbyterian, which 
has an affiliation agreement with Harlem Hospital, 
had only an 81.9 percent overall occupancy rate 
during 1979 for its 1291 beds (Exh. 39-A, pp. 638-39), 
and that Presbyterian will continue to play an 
important role in northern Manhattan. The Mayor's 
Plan shows estimated travel times from Sydenham 
to Presbyterian of between 21 minutes and 25 minutes, 
depending on the time of day or night. (Exh. 1, p. 255). 
Plaintiffs have offered no contrary evidence. And, 
while the two constructs prepared by Peter Klemperer 
(Exhs. T, V) project only one or two new admissions 
per day at Presbyterian after Sydenham's closure, a sub­
stantial number of patients reside in a "swing" 
area (health areas 14, 11, 19 and 15) which is 
almost equidistant from St. Lukes, Presbyterian, and 
Harlem Hospitals. (Tr. 818-819) Thus, with 
almost no difference in travel time, many additional

* Plaintiffs' assertion that City defendants rejected 
current data on occupancy rates in favor of outmoded 
data is unfounded. Mr. Klemperer's calculations were 
based upon official 1978 Uniform Statistical Reports 
(Tr. 824) because at the time of his data collection 
and analysis the 1979 reports for voluntary hospitals 
were not yet due. (Tr. 824) The only more recent 
data presented were plaintiffs' unofficial occupany 
charts (Exhs. 67, 71 and 72) supplied by their own witnesses. 
These exhibits were shown to be incomplete and to contain 
apparent errors (Tr. 176, Tr. 827-830, Exh. CCC)
(fn. cont'd) 48



Sydenham patients could go to Presbyterian Hospital.
(Am. Op. n. 16).
And, Presbyterian, with the largest capacity, is the farthest 

in distance and can be reached by public transportation within 25 
minutes (Exh. 1, p. 88). In Jackson v. Conway, 476 F. Supp. 896 
(E.D. Mo. , 1979). a Title VI case analogous to this lawsuit, the Court found, 
that although travel time on public transportation to an alternate 
inpatient facility would take forty to sixty minutes, plaintiffs would 
not be irreparably harmed by such an increase.

In United States v. Bexar County, et al., No. SA 78 CA 419 
(W.D. Texas, filed Feb. 20, 1980), a Title VI action challenging relocation 
of inpatient facilities to a suburban location, the Court in denying 
plaintiffs' injunctive relief found that inconvenience in travel to the 
suburbs could not be a basis for injunctive relief. In the instant case, 
travel to alternate facilities takes one half the time in Jackson, and does 
not require transportation by private automobile to a suburb as alleged in 
Bexar.

CONCLUSION
The order appealed from should be affirmed on the opinion 

of the District Court.
Dated: New York, New York

May 26, 1980 .Respectfully submitted,
ALLEN G. SCHWARTZ 
Corporation Counsel 
Attorney for City Defendants,

Bruce S. Kaplan, Esq. 100 Church Street
Norma Kerlin, Esq. New York, New York 10007
Bradley Sacks, Esq. Tel* .No. (212) 566-4517

Of Counsel

In addition, plaintiffs' witness Mark Baker, Executive 
Director of Joint Diseases testified that hospitals try 
to maximize their occupancy rates in order to take advantage 
of the reimbursement structure. "It's a game, stated 
Mr. Baker (Tr. 244-45)

49