Cypress v. Newport News General and Non-Sectarian Hospital Association, Inc. Appellant's Reply Brief

    y
4 0y

I n  the

S>tate (Eniirt ni Appeals
F ob the F ourth Circuit

No. 10,672

George C. Cypress, et al.,
Appellants,

v.

T he N ewport N ews General and N on-S ectarian 
H ospital A ssociation, I ncorporated, et al.,

Appellees.

on appeal from the united states district court for the

EASTERN DISTRICT OF VIRGINIA, NEWPORT NEWS DIVISION

APPELLANTS’ REPLY BRIEF

Jack Greenberg 
James M. N abrit, III 
M ichael M eltsner 

10 Columbus Circle 
New York, New York

P hilip S. W alker 
648 25tk Street 
Newport News, Virginia

Attorneys for Appellants

Conrad K. H arper 
Of Counsel



I n th e

InitTfr ^tdtm (Eiuirt at Kppmlz
F or the F ourth Circuit 

No. 10,672

George C. Cypress, et al.,

v.
Appellants,

T he  N ewport N ews General and N on-S ectarian 
H ospital A ssociation, I ncorporated, et al.,

Appellees.

ON a p p e a l  f r o m  t h e  u n it e d  s t a t e s  d is t r ic t  c o u r t  p o r  t h e

EASTERN DISTRICT OF VIRGINIA, NEWPORT NEWS DIVISION

APPELLANTS’ REPLY BRIEF

In this brief, Negro physicians and patients discuss a 
number of points argued by the hospital. We note initially, 
however, that while the hospital appears to recognize that 
the question before the Court is whether the record sup­
ports a findings of discrimination against Negro physi­
cians and patients, the hospital’s brief avoids discussion 
of significant portions of the record. For example, the hos­
pital does not meaningfully discuss the rejection of Dr. C. 
Waldo Scott. The probative force of the unexplained rejec­
tion of Dr. Scott is great, especially in light of the un­
contradicted testimony of his (and Dr. Cypress’ ) superior 
skill and background. Secondly, the hospital’s treatment 
of the facts suggests that the two Negro physicians possess 
only some minimum skills. The record flatly contradicts



2

this and the hospital offers no explanation of the fact that 
the peers of the Negro physicians, certified specialists in 
pediatrics and surgery, are members of the hospital staff. 
(See page 5 of appellants’ brief.) There is also no mean­
ingful explanation for the hospital’s failure to introduce 
any evidence of any reason why the Negro physicians 
should have been rejected subsequent to the hospital’s af­
firmative allegation that membership had been denied for 
good cause. The failure of the hospital at trial and in its 
brief to qualify in any way the skill and character of the 
Negro physicians leaves totally uncontradicted statements 
such as that of the Health Director of the City of New­
port News, a former Colonel in the United States Army 
Medical Corps, who summarized his opinion of Dr. Cypress 
by stating:

Well, in my 29 years of practice of medicine I have 
never been associated with a better pediatrician than 
Dr. George C. Cypress and I would recommend him 
for any staff (186a).

I

The hospital argues that this is not a proper class ac­
tion because more than one class of plaintiffs are joined. 
This position reflects a misconception of the place of mis­
joinder in federal practice. There is no misjoinder in this 
case, but even if there were it would be a problem which 
affected the trial, not the pleadings or the disposition of 
the case. Rule 21 of the Federal Rules of Civil Procedure 
is quite explicit that “Misjoinder of parties is not grounds 
for dismissal on an action.” The remedy for misjoinder is 
a separate trial of claims:

Any claim against a party may be severed and pro­
ceeded with separately. (Ibid)



3

Here, there is no contention that the hospital was prej­
udiced at the trial by joinder of Negro physicians and pa­
tients and it would be difficult to conceive of the basis for 
such contention. It is instructive to compare the only au­
thority cited by the hospital for this point, Neiman-Marcus 
v. Lait, 13 F.R.D. 311 (S.D. N.Y. 1952). There libel claims 
brought by the class representatives of models and sales­
men were joined. The models claimed they were libelously 
described as prostitutes and the salesmen claimed they 
were libelously called homosexuals. The court found the 
joinder of these claims would prejudice the defendants “at 
the trial” (id. at 317) as the trial would involve a jury 
and the presentation to it of evidence concerning quite 
different and inflammatory libelous matter (prostitution 
and homosexuality). Thus, the prejudice involved in per­
mitting the joinder in that case was manifest.

The hospital’s claim, moreover, is conclusively disposed 
of by Simkins v. Moses H. Cone Memorial Hospital, 323 
F.2d 959 (4th. Cir. 1963) and Eaton v. Grubbs, 329 F.2d 
710 (4th Cir. 1964). In both these leading cases Negro 
physicians and patients joined together and obtained in­
junctive relief for themselves and others similarly situated. 
In the Simkins case Negro dentists joined with Negro doc­
tors and also obtained injunctive relief. There is no at­
tempt in the hospital’s brief to distinguish Simkins, supra, 
and Eaton, supra, on this point.

The hospital also argues that all the Negro physicians 
practicing medicine in the Newport News-Hampton area 
are insufficient to constitute a class within the means of 
Rule 23 of the Federal Rules of Civil Procedure and that 
only the two Negro physicians who have applied for staff 
membership at the hospital and not all Negro physicians 
in the community should be considered members of the in­
terested class. If this reasoning were correct, however,



4

class relief lias been granted improperly in scores of school 
desegregation cases where students who have applied for 
transfer to “white” schools represented themselves as well 
as other Negroes who had not applied. See e.g. Buckner v. 
School Board of Greene County, Virginia, 332 F.2d 452 
(4th Cir. 1964) and cases cited. It is obvious that all Negro 
physicians in the Newport News area have a common in­
terest in ending racial exclusion from the best hospital 
facility in the community. Three of these Negro physicians 
testified at the trial that Dr. Cypress represented them 
and their interests. Clearly appellants assert that the hos­
pital has “acted or refused to act on grounds generally ap­
plicable to the class thereby making appropriate final in­
junctive relief or corresponding declaratory relief with 
respect to the class as a whole” F.R.C.P. 23(b) 2. See 
IIall v. Wertham Bag Cory., 251 F. Supp. 184 (M.D. Tenn. 
1966) (existence of discriminatory policy threatens entire 
class of employees).

The hospital also cites cases where it was not impractical 
to join all persons in the class as parties. There are just 
as many decisions holding that a similar number of per­
sons were sufficient to support a class action. See e.g., 
Citizens Banking Cory. v. Monticello State Bank, 143 F.2d 
261 (8th Cir. 1944) (12 noteholders permitted to represent 
28 others in a class action); Tisa v. Potefsky, 90 F. Supp. 
175, 181 (S.D. N.Y. 1950) (50 members of an executive 
board sufficient for class action). The cases and com­
mentators agree that the test of whether a class action 
may be brought has nothing to do with a “numbers game.” 
Impracticable under Rule 23 is “ only the difficulty or in­
convenience of joining all members of the class” or the 
burden caused by litigating the issues involved in a piece 
meal fashion by numerous suits. Advertising Syecial Na­
tional Association v. Federal Trade Commission, 238 F.2d



5

108, 119 (1st Cir. 1956). “ The federal decisions . . . 
[reflect] a practical judgment on the particular facts of 
the case” 3 Moore’s Federal Practice, §2305, p. 3421.

It is obviously inconvenient and unnecessary to bring 
18 busy physicians before the court as party plaintiffs 
and clearty burdensome to the district court to settle the 
legal obligation of the hospital with respect to Negro 
physicians in a number of separate suits for 18 different 
law suits would require endless repetitious testimony and 
duplication of effort by the court. The district court rec­
ognized the adverse consequences of such a result and held 
that the Negro physicians are entitled to bring a class ac­
tion (292a). As the court stated at trial when it permitted 
Negro physicians to testify concerning their interest in the 
suit brought by Dr. Cypress “—they would all reapply and 
then we might have to go through this ordeal once more” 
(235a).

Moreover, in the present case the only consequences of 
refusing to permit this “ spurious” class action would be to 
force Dr. C. Waldo Scott to commence a new civil action 
against the hospital. The trial of such a cause would be a 
repetition of testimony and argument already presented to 
the court. The class action provisions of the Federal Rules 
were formulated to avoid such results so obviously wasteful 
of the energy of the judiciary and the resources of litigants.

While the class action provisions of Rule 23 facilitate 
the presentation of the claims of Negro physicians by sav­
ing the time of the court, the granting of class relief does 
not prejudice the hospital in any manner. It is not thereby 
enjoined from rejecting a Negro physician who has applied 
on a valid nonracial ground for this is a “ spurious” class 
action and “ the judgment binds only the original parties 
of record and those who intervene and become parties to



6

the action” 3 Moore’s Federal Practice, §23.10, p. 3456.1 
The class action decree is therefore a convenient and ap­
propriate device for “cleaning up” this litigious situation.

II

The hospital admits that segregation of patients is 
practiced, as the district court found, but urges that it is 
constitutional because the hospital is not “basically” a 
“ segregated hospital.” The notion that the hospital is con­
stitutionally permitted to discriminate in general patient 
assignment because occasionally it permits Negro and white 
pediatric patients in the same room is without merit.2 
Negro physicians and patients stress again what should be 
apparent! They do not desire, and are not entitled to, the 
mixing of sexes, age groups, illnesses, etc. The hospital ad­
ministration obviously has discretion to determine the 
placement of patients but that discretion is limited to the 
extent that they may not adopt a policy or practice of as­
signing bed space on the basis of race. When defendants 
state as a “ regular thing” Negro and wThite adult patients

1 Of course should relief be granted to Dr. Cypress the decree regardless 
of its terms could not expressly or impliedly authorize continued dis­
crimination. See Potts v. Flax, 313 F.2d 284, 288-90 (5th Cir. 1963).

2 This Court rejected the position that a little bit of discrimination is 
all right in Gantt v. Clemson Agricultural College o f South Carolina, 
320 F.2d 611, 613 (4th Cir. 963) cert, denied 375 U.S. 314:

The district court in its findings of fact declared that the legislative 
policy of South Carolina does not prohibit but discourages integra­
tion of the races in its state supported colleges. The distinction 
drawn between prohibition and discouragement is a novel one in 
legal literature and we must hold it unacceptable under the Constitu­
tion of the United States. A state may no more pursue a policy of 
discouraging and impeding admission to its educational institutions 
on the ground of race than it may maintain a policy of strictly pro­
hibiting admission on account of race.

See also Simkins v. Moses H. Cone Memorial Hospital at 323 F.2d 959, 
968, note 16, where this language was approved by the court.



7

are not put in the same room and attempt to justify this 
policy they are attempting to preserve a part of the to­
tally repudiated doctrine of “ separate but equal.”

Ill

As discussed at the outset, the hospital’s argument with 
respect to exclusion of Negro physicians omits reference to 
a number of significant and startling facts shown by the 
record. That argument proceeds from the faulty premise 
that the Negro physicians have shown only that they meet 
“minimum” qualifications for staff membership. On the 
contrary, it is difficult to imagine what additional evidence 
could have been produced to establish the qualifications of 
Dr. Cypress and Dr. Scott. A detailed presentation of the 
evidence demonstrating the Negro physicians’ superior 
qualifications appears in appellants’ brief but even the 
scantiest summary reveals that the hospital’s characteriza­
tion of the evidence misses the mark.

To be sure Dr. Cypress and Dr. Scott meet all qualifica­
tions—minimum or otherwise— set forth by the hospital in 
its bylaws, rules, and regulations but the Negroes proved 
much more. After direct observance of them at work in 
office and hospital, as well as evaluation of their credentials, 
two experts gave a full picture of both physicians as highly 
qualified men of above average skill. Their uncontradicted 
testimony establishes that on the basis of education, ex­
perience, and ability, the Negro physicians would be granted 
membership at some of leading hospitals in the United 
States. Nor is there anything “minimum” about the de­
scription of Dr. Cypress by the health director of the City 
of Newport News (186a). In addition, as noted, the Ne­
groes have shown that with a single exception the white 
peers of Dr. Cypress and Dr. Scott are on the staff of 
the hospital, that in fact three-fourths of the white phy­



sicians in the community, many with far less training or 
expreience (28a-39a) are on the staff while two of the 
leaders of the Negro medical community are excluded.

The irony of the hospital’s position is plain. It sug­
gests that the Negro physicians do not establish other 
than “minimum” qualifications in the face of a great deal 
of evidence that both physicians are extremely capable and 
experienced but refuses to offer any proof of the manner 
in which two Negro physicians failed to measure up to the 
Eiverside staff in character, experience, or ability. It 
urges that the Negro doctors have met only the standards 
set forth in the bylaws but does not say what other stan­
dards exist. It claims that the hospital’s standards for 
staff membership are reasonable but concedes that the 
Negro physicians met all written or articulated standards. 
It alleged in the answer that rejection was for just and 
good cause but never introduced any evidence of the na­
ture of such cause.

In the face of the affirmative evidence of the superior 
qualifications of Dr. Cypress and Dr. Scott the hospital 
can only justify remaining* silent on the theory that it 
has absolute discretion to grant or deny staff membership 
and in the exercise of that discretion is not subject to ju­
dicial review, a theory apparently accepted by the court 
below. This reasoning is, however, incompatible with ap­
pellants’ constitutional right to be free from racial dis­
crimination at a hospital subject to the restraints of the 
Fifth and Fourteenth Amendments. To uphold this con­
tention would be to limit Simkins, supra and Eaton, supra, 
to the situation of the hospital which admitted that it had 
excluded Negro physicians; the ranks of such hospitals 
would grow thin and the constitutional rights of Negro 
physicians and patients would be rendered meaningless.



9

This Court stated in Chambers v. Hendersonville Board 
of Education,------ F .2 d -------- (4th Cir. 1966) :

Tnnnmp.ra.h1e cases have clearly established the prin­
ciple that under circumstances such as this where a 
history of racial discrimination exists the burden of 
proof has been thrown upon the parties having the 
power to produce the facts.

In Chambers, the court found discrimination when a 
school board failed to produce evidence meriting dismissal 
after Negro teachers had shown they met all objective 
qualifications. The court adopted the rule as framed by 
decisions such as Hernandez v. Texas, 347 TT.S. 475, 480; 
Pierre v. Louisiana, 306 U.S. 354. While the hospital dis­
cusses Pierre, supra, and Hernandez, supra, in its brief 
and attempts to distinguish them because those cases in­
volve jury discrimination nowhere does the hospital cite or 
discuss the Chambers decision. Nor is this Court’s decision 
in Johnson v. Branch,------ F .2d -------- (4th Cir. 1966) rely­
ing upon Chambers, discussed. Both Chambers and John­
son are cited in appellants’ brief.

Likewise, the hospital fails to cite or discuss the leading 
authority in this circuit for the proposition that Negroes 
may not be excluded by means of a procedure which bur­
dens them and not white applicants. Hawkins v. North 
Carolina. Dental Society, 355 F.2d 718, 723. In Hawkins, 
the court rejected a procedure which required a recom­
mendation from two of 1,214 white dentists before admis­
sion could be granted and cited in support of this conclu­
sion Meredith v. Fair, 298 F.2d 696 (5th Cir. 1962); Hunt 
v. Arnold, 172 F. Supp. 847 (N.D. G-a. 1959); Dudley v. 
Board of Supervisors of Louisiana State University, 150 
F. Supp. 900 (E.D. La. 1957). Unaccountably, the Fifth 
Circuit cases are discussed in the hospital’s brief but



10

Hawkins is not. But the attempted distinction of even 
those cases fails because the three-fourths majority vote 
of the medical staff required for admission is obviously 
more of a burden to Negro applicants than the procedures 
required in the Fifth Circuit cases or in Hawkins.

At the conclusion of the hospital’s brief reference is 
made to a letter of eligibility received by the hospital from 
the Department of Health, Education and Welfare clearing 
it to participate in federally assisted programs under 
Title VI of the Civil Rights Act of 1964. The letter is 
dated June 30, 1966. Appellants have inquired about this 
clearance and have received a letter (July 29, 1966) from 
the Department of Health, Education and Welfare which 
is reprinted as Appendix A. This letter clearly states that 
whatever else it may mean the “clearance” does not purport 
to be a judgment on the practices challenged in this law 
suit. “ To the extent” the Department considered such 
practices its investigators merely “accepted without ques­
tion or an individual judgment, the ruling of the district 
court.” The letter states that the administrative clearance 
“did not involve and vTas not intended to influence the is­
sues in the case of Cypress v. The Newport News General 
and Non-Sectarian Hospital Association, Inc. No. 10,672, 
now pending in the U.S. Court of Appeals for the Fourth 
Circuit.”

This law suit was commenced in 1963 in order to enjoin 
the practices of racial exclusion and segregation. Nothing 
determined by the Department of Health, Education and 
Welfare two years after the trial in this case can possibly 
determine whether appellants are entitled to relief. How­
ever, the available evidence confirms that racially discrim­
inatory policies persist at the Riverside hospital. No Negro 
physicians have been placed on the staff and, as the hos­



11

pital’s brief reveals, page 21, the patient assignment policy 
has remained unchanged.

It is in this context that one must appraise the hos­
pital’s suggestion that in 1966 Negro physicians should, 
without injunctive relief, reapply to the hospital and sub­
mit themselves to the “hearing” outlined in the district 
court’s opinion. The character of that hearing is fully de­
scribed in appellants’ brief, pp. 22-24. Briefly, after con­
cluding that Negro physicians were not entitled to relief, 
the court suggested that they should now be permitted to 
reapply. On what basis the district court concluded that 
absent such a statement in its opinion the Negro physi­
cians could not reapply is not clear. However, upon reap­
plication, an applicant could request a “ conference” or 
“hearing” at his own cost which would be held without 
attorneys, cross-examination, sworn testimony, burden of 
proof, or judicial review and only after the Negro executed 
the broadest possible release. Appellants believe that the 
procedures described by the district court failed to satisfy 
the most elementary requirements of a fair hearing, but 
this court should not enter into any appraisal of the 
procedures suggested by the district court. That court 
clearly and unmistakably held that appellants were not 
entitled to relief and had not established racial discrimina­
tion in exclusion of Negro physicians and segregation of 
Negro patients.

Although appellants reject the procedure outlined by the 
district court, and have appealed the ruling of that court, 
they have not objected to any meaningful settlement of the 
case which might arise from a change of hospital policy. 
Thus, on or about July 7, 1966, Dr. Cypress once again 
applied for membership on the Riverside staff. As of the 
date this brief is prepared, August 18, 1966, the hospital 
has failed to act on Dr. Cypress’ application. It is plain,



12

therefore, that Riverside hospital is still unwilling to 
accept Negro physicians on its staff.

Respectfully submitted,

J ack Greenberg 
James M. N abrit, III 
M ichael M eltsner

10 Columbus Circle 
New York, New York

P hilip S. W alker 
648 25th Street 
Newport News, Virginia

Attorneys for Appellants

Conrad K . H arper 
Of Counsel



D E P A R TM E N T  O F  H E A L T H ,  E D U C A TIO N , AND W ELFA R E
W A S H I N G T O N ,  D . C .  2020]

OFFICE OF TH E  SECRETARY July 29, 1966

Mr. Michael Meltsner, Esq. 
Suite 2030 
10 Columbus Circle 
New York, New York

Dear Mr. Meltsner:

At your request this Office has reviewed the Public Health Service's file 
on the Riverside Hospital in Newport News, Virginia, which file indicates 
that the Riverside Hospital was cleared for participation in the Medicare 
Program on June 30, 1966.

Based on our review of material in the file and on discussions with Public 
Health Service personnel who were involved in the decision to clear this 
hospital, we have concluded that the basis for clearance did not involve 
and was not intended to influence the issues in the case of Cypress v. the 
Newport News, General and Non-Secretarial Hospital Association, Inc■ No. 
10672, now pending in the U.S. Court of Appeals for the Fourth Circuit.

The major issues in the litigation raise Constitutional questions as to 
(1) whether or not the hospital refused to accept Dr. George C . Cypress 
and other Negro doctors as members of its medical staff because of race 
or because of the application of standards and requirements not applied to 
white doctors; and (2) whether or not the Constitution requires that Negro 
patients be assigned to rooms in the hospital on a non-racial basis.

This Department as part of its responsibility under Title VI of the Civil 
Rights Act of 1964, requires that all HEW programs receiving Federal 
financial assistance be operated without regard to race, color or national 
origin. Thus, in order to become eligible for participation in the Medicare 
Program, hospitals are required both to indicate willingness to operate on 
a completely non-discriminatory basis and provide some evidence that the 
non-discriminatory policy has been placed in effect. Among the specific 
actions that Riverside Hospital was requested to take was a public announce­
ment by individual letter to Negro physicians in the area, advising that 
applications for staff privileges would be accepted and evaluated by the 
hospital regardless of race, color or national origin. The hospital sent 
out such notices to 20 Negro physicians, including the two plaintiffs, on 
June 29, 1966. In addition, the hospital submitted a report of bed assign­
ments for a two-week period that indicated patients during this period were 
assigned to rooms without regard to race.



13

APPENDIX A



14

Appendix A

(See Opposite)



Page -2 -

The decision to permit the Riverside Hospital to participate in the Medicare 
Program was based on the evaluation of the Public Health Service staff that 
the hospital's performance met the minimum standards for clearance. Public 
Health Service personnel indicate that while they were aware of the pending 
litigation, to the extent that they considered it at all, they accepted 
without question or an individual judgment, the ruling of the district

Under a compliance program now being established, periodic reviews of the 
compliance status of all hospitals will be made.

In this regard, we have received your telegram dated July 19, 1966, indicat­
ing that you have received reports that the Riverside Hospital has not acted 
on applications from Negro doctors and that discrimination in room assign­
ments is continuing. An appropriate investigation of these allegations has 
been requested and you will be advised of the results as soon as they become 
available.

court.

Sincerely

Deputy Special Assistant to the 
Secretary for Civil Rights



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