Cypress v. Newport News General and Non-Sectarian Hospital Association, Inc. Appellant's Reply Brief
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January 1, 1966

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Brief Collection, LDF Court Filings. Cypress v. Newport News General and Non-Sectarian Hospital Association, Inc. Appellant's Reply Brief, 1966. 1ef4d1df-ae9a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/c953b4bb-3b6a-4ebe-b0d6-4336bb6d1ebd/cypress-v-newport-news-general-and-non-sectarian-hospital-association-inc-appellants-reply-brief. Accessed July 16, 2025.
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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 15 MEILEN PRESS INC. — N. Y. C. 219