Smith v Hampton Training School for Nurses Appeal

    APPELLEES’ BRIEF

In The
UNITED STATES COURT OF APPEALS 

For The Fourth Circuit

No. 10,312

MILDRED M. SMITH, AGNES L. STOKES, and 
PATRICIA L. TAYLOR,

Appellants,

v.

HAM PTON TRAINING SCHOOL FOR NURSES, 
a corporation, et al.,

Appellees.

On Appeal from the United States District Court for the 
Eastern District of Virginia, Newport News Division

E. R a l p h  J a m e s  

W .  S t e p h e n  M o o r e  

Attorneys for Appellees

J a m e s , R i c h a r d s o n  &  J a m e s  

Citizens and Marine Bank Building 
Hampton, Virginia 

O f Counsel:

The Press of Lowyers Printing Company, Incorporated, Richmond, Virginia S3207



INDEX

Page

Statement of the Case ........ .............................................  1

Statement of Facts ........................................................... 4

Questions Presented .........   7

Argument:

I. Simkins v. Moses H. Cone Memorial Hospital 
changed the law and no right of action was retro­
spectively created by that decision............................  8

A. The law on August 9, 1963, was clear that the
Dixie Hospital was a private entity and that action by 
the assistant administrator in enforcing hospital poli­
cies was not unlawful “state action” ............................ 9

B. Although Linkletter v. Walker and Flemming
v. South Carolina Electric & Gas Co. are not control­
ling on this case, their rationales serve as a guide in 
answering the initial question presented...................... 16

II. The nurses are not entitled to reinstatement with 
back pay ............................................    23

. 28Conclusion



TABLE OF CASES

Page

Bolling v. Sharpe, 347 U.S. 497 (1954) .......................... 19

Bridges v. Hampton Training School for Nurses, Civil 
No. 1001, E.D.Va......................................... .................  3

Brown v. Board of Education, 347 U.S. 483 (1954)
................................ -................................................9 ,11 ,19

Burton v. Wilmington Parking Authority, 365 U.S.
715 (1961) .................................................. 12, 13, 15, 16

Chicot County Drainage Dist. v. Baxter State Bank,
308 U.S. 371 (1940) ..............................................  18, 19

Eaton v. Board of Managers of James Walker Memorial 
Hospital, 261 F.2d 521 (4th Cir. 1958), cert denied 
359 U.S. 984 (1958) ..................................  10, 12, 13, 14

Eaton v. Grubbs, 216 F. Supp. 465 (E.D.N.C. 1963),
329 F.2d 710 (4th Cir. 1964) .......................... 14, 15, 20

Flemming v. South Carolina Electric & Gas. Co., 239 
F.2d 277 (4th Cir. 1956) ........................................  16, 18

Giles v. Harris, 189 U.S. 475 (1903) 24



Page

Great Northern Ry. v. Sunburst Oil & Refining Co.,
287 U.S. 358 (1932) ................................. ...................  17

Hampton v. City of Jacksonville, 304 F.2d 320 (5th Cir. 
1962) ................................................... ...........................  13

Khoury v. Community Memorial Hospital, 203 Va. 236,
123 S.E.2d 533 (1 962 )............................... .............14, 15

Kuhn Fairmont Coal Co., 215 U.S. 349, (1910) ...........  17

Linkletter v. Walker, 381 U.S. 618 (1965) .... 16, 17, 18, 21

Mapp v. Ohio, 367 U.S. 643 (1961 )................................  16

Plessy v. Ferguson, 163 U.S. 537 (1896) ...................... 19

Simkins v. Moses H. Cone Memorial Hospital, 211 F. 
Supp. 628 (M.D.N.C. 1962), 323 F.2d 959 (4th Cir. 
1963), cert, denied, 376 U.S. 938 (1964) .... 5, 8, 11, 12,

13, 14, 18, 19, 20, 21 23, 28

Smith v. Hampton Training School for Nurses, 243 
F. Supp. 403 (E.D.Va. 1965) ............................ 3, 5, 13, 19

Wood v. Hogan, 215 F. Supp. 53 (W.D.Va. 1963) .. 13, 14



Page

TABLE OF STATUTES AND REGULATIONS

28 U.S.C. §1343 (3) ....................................................  2,

42 U.S.C. §291e(f) ............................................  5, 12,

42 U.S.C. §291h(b) ........................................................

42 U.S.C. §1981 ..............................................................

42 U.S.C. §1983...........................................................2,

42 C.F.R. §53.112 ......................................................  5,

TABLE OF OTHER REFERENCES

15 Am. Jur. 2d “Civil Rights” §56-62 (1964) ............

15 Am. Jur. 2d “Civil Rights” §70 (1964) ....................

16 Am. Jur. 2d “Constitutional Law” §178 (1964) ....

35 Am. Jur. Master and Servant §34 (1941) ................

Appellants’ Appendix .......................................................

Appellants’ B rie f .................................................... 4, 11,

Defendants’ Supplementary Brief ..................................

, 8

14

4

23

24

12

25

25

19

23

6

13

8



In The
UNITED STATES COURT OF APPEALS 

For The Fourth Circuit

No. 10,312

MILDRED M. SMITH, AGNES L. STOKES, and 
PATRICIA L. TAYLOR,

Appellants,
v.

HAMPTON TRAINING SCHOOL FOR NURSES, 
a corporation, et al.,

Appellees.

On Appeal from the United States District Court for the 
Eastern District of Virginia, Newport News Division

APPELLEES’ BRIEF

STATEM ENT OF TH E CASE

This suit was brought by three Negro nurses on their 
own behalf and concerned certain acts which occurred in 
August and September, 1963. The suit was brought in the



?

United States District Court for the Eastern District of 
Virginia on May 25, 1964 under the Civil Rights Act 
(prior to its amendment in 1964). Jurisdiction was invoked 
under 28 U.S.C. §1343(3) and 42 U.S.C. §1983. The 
complaint stated:

“This is a proceeding for a preliminary injunction and 
a permanent injunction enjoining defendants and their 
agents, employees, successors and all persons in active 
concert with them from refusing:

1. To reinstate the plaintiffs, Mildred M. Smith, Pa­
tricia L. Taylor and Agnes L. Stokes in their former 
positions as nurses at the Dixie Hospital.

2. To provide back pay for the plaintiffs from the 
time of their dismissal to the present.”

As defendants the complaint named the administrators of 
the Dixie Hospital, the corporate entity, and officers and 
directors of the corporation. The defendants’ answer was 
duly filed on June 17, 1964.

Interrogatories submitted by the nurses were answered 
by the hospital July 24, 1964. On January 18, 1965, the 
District Court held an initial pre-trial conference and set 
the case for trial July 27, 1965. Also on January 18, the 
hospital demanded a jury trial for all the triable issues. 
Motion to strike the Dixie Hospital’s demand for a jury 
trial was filed by the nurses on February 15, 1964, and 
several cases were therein cited to support the motion 
to strike.



3

On April 14, 1965, the hospital filed a motion to dismiss 
the complaint for failure to state a claim upon which relief 
could be granted, and as required by local rules that motion 
was accompanied by a brief which contained the reasoning 
and legal authority relied upon. The Court agreed to hear 
argument on that motion as well as on the motion to strike 
the demand for a jury trial on May 25, 1965. On May 2, 
1965, the nurses filed a brief in opposition to the motion 
to dismiss. On May 6th, the hospital filed a memorandum 
containing authorities to support the proposition that it 
was entitled to a jury trial in this suit. The motions were 
argued by counsel on May 25, 1965, and after hearing 
the argument the District Court granted the parties ad­
ditional time within which to file supplemental briefs rel­
ative to the motions. Both the hospital and the nurses 
availed themselves of the opportunity and filed supple­
mentary briefs on June 14, 1965. On July 1, 1965, after 
consideration of the pleadings and exhibits filed, the briefs, 
and the oral argument of counsel, the District Court orally 
advised counsel that the motion to dismiss would be treated 
as a motion for summary judgment on the pleadings and 
would be granted, and at that time the Court stated its 
reasons for that decision. The Court’s memorandum was 
filed on July 20, 1965, and the final order, dismissing this 
action at the cost of the plaintiffs, was filed on August 20, 
1965. The opinion is reported, Smith v. Hampton Training 
School for Nurses, 243 F. Supp. 403 (E.D. Va. 1965).

It is noted that a companion case, Bridges v. Hampton 
Training School for Nurses, Civil No. 1001, E.D. Va., was 
filed at the same time as the instant case. As pointed out by 
the District Court the companion case repeats many of the 
allegations of the present case. The issue involved in the 
companion case is whether or not discriminatory practices



4

still exist at the Dixie Hospital which warrant injunctive 
relief. The Appellants’ Brief makes numerous allegations 
that the Dixie Hospital is at the present time discriminating 
on a racial basis and is not in compliance with the Civil 
Rights Act of 1964. These allegations are not material to 
this case and have been placed in the Appellants’ Brief to 
confuse the issues and to prejudice the Court against the 
hospital. Although it is recognized that these allegations 
must be considered by the Court when it reads the A p­
pellants’ Brief, nevertheless, it is hoped that the allega­
tions will be disregarded in deciding this case. The issue of 
whether or not the Dixie Hospital as in compliance with 
the Civil Rights Act of 1964 should be left for the District 
Court to decide after a trial of the companion suit with 
full presentation of the evidence by both the plaintiffs 
and the defendants.

STATEM ENT OF TH E  FACTS

On April 14, 1965, the hospital moved the District Court 
to dismiss the complaint for failure to state a claim upon 
which relief could be granted. For purposes of that motion 
the facts alleged in the complaint were admitted. The Dis­
trict Court also considered the concessions of counsel in 
their briefs and oral arguments. However, the factual and 
legal conclusions urged by the nurses were not admitted 
for purposes of the motion and were not, of course, binding 
on the District Court.

The District Court, and not the appellants, stated the 
material facts properly and fairly. It was conceded, and the 
District Court found, that the Dixie Hospital had been the 
recipient of federal funds under the Hill-Burton Act, 42 
U.S.C. §291 h (b ) . On August 9, 1963 when the nurses’



5

alleged causes of action arose the Hill-Burton Act con­
tained 42 U.S.C. §291e(f) and the implementing regula­
tion 42 C.F.R. §53.112. That portion of the Hill-Burton 
Act and the regulation were declared unconstitutional ap­
proximately three months later on November 1, 1963 by 
this Court in Simkins v. Moses H. Cone Memorial Hos­
pital, 323 F. 2d 959 (4th Cir. 1963), cert, denied, 376 U.S. 
938 (1964).

The District Court found that prior to and on August 
9, 1963 the Dixie Hospital maintained a cafeteria which 
was reserved for white persons. Negro nurses were per­
mitted to pass through the main cafeteria line but were 
required to eat their meals in a separate room situated 
down the hall from the main cafeteria. On August 8, 
1963, the three plaintiffs ate lunch in said cafeteria. The 
hospital’s assistant administrator reprimanded the plain­
tiffs and advised them that they were violating a policy 
of eighty years’ standing. On the following day, August 
9, 1963, with full knowledge of the hospital’s policy and 
regulation, plaintiffs again ate lunch at said cafeteria. 
They were then discharged and, for the purpose of this 
proceeding, the sole reason for said discharge was the 
failure of the plaintiffs to adhere to the regulations of 
the hospital and the orders of the assistant administrator. 
On August 26, 1963, the plaintiffs, through their attorney, 
requested reinstatement or, in the alternative, to be ad­
vised of appellate procedure for reviewing their dismissal. 
Bv letter dated September 4, 1963, counsel was advised that 
plaintiffs would not be reinstated and that no appellate pro­
cedure existed for reviewing dismissal orders. Plaintiffs 
concede that the cafeteria was entirely desegregated several 
months thereafter (on October 1, 1963). No proceedings 
or requests were made by plaintiffs subsequent to the letter 
of August 26, 1963. Smith, supra at 404.



6

The facts of this case, when viewed with hindsight in the 
light of the Civil Rights Act of 1964 which has been passed 
in the interim, are not at all favorable to the defendants 
by today’s standards. The District Court noted that, “we 
are not presently called upon to commend or condemn the 
actions of the defendants.” Even on August 8, 1963, when 
the nurses were advised that their conduct was in violation 
of the rules, regulations and policies of the Dixie Hospital, 
which were well known and understood by them, the nurses 
were told by the assistant administrator that he was not 
discussing the rightness or wrongness, the correctness or 
incorrectness of such rules, regulations and policies, but 
that he was required to abide by and enforce the same.

But it appears that the facts found by the District Court 
were not strong enough for the appellants. In an effort 
to overwhelm the District Court the appellants filed a 
purported motion attached to which were various docu­
ments and affidavits. See Appellants’ Appendix at 54a-81a. 
With regard to those “exhibits” the District Court said, 
Id. at 84a-85a:

“The defendant’s motion for summary judgment was 
fully argued on May 25, 1965, with a court reporter 
present. No request was made to present additional 
affidavits or exhibits. After receipt of briefs from 
counsel the Court, because of the proximity of the 
trial date, verbally advised counsel on July 1, 1965, 
that the motion for summary judgment would be 
sustained and further verbally advised counsel of the 
reasons for said action, stating that a memorandum 
was in the process of being prepared. No request was



7

made at that time to present additional affidavits or 
exhibits. Thereafter, the memorandum granting sum­
mary judgment was filed on July 20, 1965.

To now consider the affidavits and exhibits attached 
to the ' ‘Motion” would, in effect, require a reopening 
of the entire case. If this Court had acted hastily or 
summarily, the request to reconsider would perhaps 
be justified. But the record shows to the contrary. The 
regular and ordinary processes of the Court are ap­
plicable to all types of action, and the time to present 
counter-affidavits in opposition to a motion for sum­
mary judgment is not after the Court has ruled.

Irrespective of the affidavits and exhibits attached to 
the “Motion” the fundamental principles guiding the 
Court’s decision are not altered.

For purposes of this appeal, the appellants disregarded the 
District Court’s findings and based their “Statement of 
Facts” and their “Argument” almost entirely on these 
“exhibits,” which they did not choose to offer in the regular 
and ordinary manner for the District Court’s consideration, 
but which they presented after the Court had ruled.

QUESTIONS PRESENTED

I. If Simkins v. Moses H. Cone Memorial Hospital 
changed the law, were rights of action created retrospec­
tively by that decision?

II. Are the nurses entitled to reinstatement with back pay 
in this case ?



8

ARGUMENT

I. S IM K IN S  v. M O SE S H. CONE M E M O R IA L  
H O SP ITA L  CHANGED TH E  LAW AND NO RIGHT 
OF ACTION WAS RETROSPECTIVELY CREATED 
BY THAT DECISION.

Although the point was reserved for other courts, the 
District Court assumed arguendo that an action against an 
otherwise purely private corporation for an alleged wrong­
ful discharge could be maintained in the federal courts. It 
is submitted that such an action is not maintainable in the 
federal courts under 28 U.S.C. § 1343 (3). However, since 
the District Court did not deal with this point, it will not be 
discussed further in this brief.1

The District Court ruled that the defendants, acting 
under what was then determined to be “not state action” 
and proceeding under what was assumed to be a valid statute 
and regulation, were not liable for back pay and were not 
required to reinstate the plaintiffs to their former positions. 
For the purposes of this brief the point decided has been 
broken down into two parts in order to show the correct­
ness of that ruling:

I. Simkins v. Moses H. Cone Memorial Hospital changed 
the law and no right of action was retrospectively created 
by that decision.

1 In the hearing on May 25, 1965, counsel argued that Simkins did not create 
jurisdiction retrospectively. The point was also discussed in the supplementary 
briefs filed after the hearing. See Defendants’ Supplementary Brief at 2-6 (made 
part of the record on appeal but not printed.)



9

II. The nurses are not entitled to reinstatement with 
back pay.

A. T H E  LAW ON AUGUST 9, 1963, WAS CLEAR 
THAT TH E DIXIE HOSPITAL WAS A PRIVATE 
ENTITY AND THAT ACTION BY TH E ASSIST­
ANT ADMINISTRATOR IN ENFORCING HOS­
PITA L POLICIES WAS NOT UNLAW FUL “STATE 
ACTION.”

The rules, regulations and policies of the Dixie Hospital 
were well known to the three nurses and were understood 
by them. Two of the nurses had been trained as student 
nurses by the hospital before being employed as practical 
nurses. The third nurse, Mildred M. Smith, had been in­
termittently employed by the hospital for a number of years 
as a registered nurse. The policy and practice of maintaining 
segregated eating facilities had existed for a long time prior 
to and during the nurses’ years of employment. If this or 
any other policy were objectionable to these nurses, they 
should have refused the hospital’s offer of employment. But 
when they accepted the offer of employment they impliedly 
agreed to abide by the rules and policies of the hospital, and 
if they violated the rules and policies they knew that the 
hospital would have the right to discharge them for cause.

Although there was no dispute over the material facts 
in this case, the conclusions drawn from the facts were con­
troverted. The nurses alleged that they were summarily dis­
missed because they ate lunch in the main cafeteria, which 
was reserved for white persons. The nurses disregarded the 
fact that on August 8 and 9, 1963, other Negro employees 
joined with them in eating in the cafeteria, but the other



10

employees were not discharged. These nurses and the other 
employees were advised that they were violating policies 
and they were requested not to repeat their action. In spite 
of this, the nurses repeated their action and wilfully violated 
the hospital s policy. Thereafter, they were discharged by 
the assistant administrator for insubordination and for 
their wulful and premeditated violation of hospital policies. 
Since the other employees did not repeat their action, they 
were not discharged and were permitted to return to duty. 
The hospital alleged and the District Court found that the 
sole reason for the nurses’ discharge was their failure to 
adhere to the regulations of the hospital and the orders of 
the assistant administrator.

The hospital’s regulations and the assistant adminis­
trator s action were lawful acts by a private entity in 
August, 1963. The District Court stated at 243 F. Supp 
405-06:

‘At the times relating to the discharge of plaintiffs 
the judicial decisions seemed to indicate that hospitals 
receiving city and county funds were not so impressed 
with “state action” as to require injunction under the 
Fourteenth Amendment against racially discriminatory 
practices. Such was the pronouncement of the United 
States Court of Appeals for the Fourth Circuit in 
Eaton v. Board of Managers of James Walker Mem. 
Hospital, 4 Cir., 261 F. (2d) 521, cert. den. 359 U.S. 
984, 79 S. Ct. 941, 3 L. Ed. (2d) 934, decided by the 
Court of Appeals on November 29, 1958.

It was in this setting that the defendants acted on 
August 9, 1963, in discharging the plaintiffs. We are 
not presently called upon to commend or condemn the



11

actions of the defendants. But it cannot be seriously 
contended that the law on the subject was anything 
but favorable to the defendants during August and 
September, 1963.”

The appellants argue that because of Brown v. Board of 
Education, 347 U.S. 483 (1954), and the decisions decided 
under that case, state agencies have been on notice that they 
are forbidden to discriminate racially. See Appellants’ Brief 
at 11. From this, the appellants conclude, id at 12:

“The only issue was whether the Dixie Hospital was 
sufficiently involved with government to be bound by 
the Constitution. The Dixie Hospital between 1956 
and 1959 accepted more than 1.9 million of the tax­
payers’ dollars. Action by the Hospital thereafter 
premised on the theory that it was unaccountable to 
standards of conduct governing the public was surely 
taken at its peril. This is particularly so where the 
Hospital had no basis for a claim that it acted in 
reliance on a prior precedent in its favor and should 
be exempt from the surprise effects of a change of 
law.”

The appellants’ basic contention is that Simkins v. Moses 
H. Cone Memorial Hospital, supra, applied, rather than re­
versed, prior law. The Simkins case, supra, involved Negro 
physicians and dentists who were denied staff privileges, and 
prospective Negro patients who were denied admittance to 
the hospital. The claims of racial discrimination were 
found to be clearly established. The case of Simkins v. 
Moses H. Cone Memorial Hospital, 211 F. Supp. 628 
(M.D.N.C. 1962), was decided on December 5, 1962, 
before the commission of the acts which gave rise to the



12

complaints of the three nurses in the present action. That 
decision held that the mere receipt of funds under the 
federal-state programs did not render a hospital subject to 
the restraints of the Fourteenth Amendment against dis­
crimination. The district court did not deem it necessary to 
pass upon the constitutionality of 42 U.S.C. §291e(f). The 
United States Court of Appeals for the Fourth Circuit 
reversed Simkins v. Moses H. Cone Memorial Hospital, 
323 F. 2d 959, by a three to two decision, holding that the 
degree of participation by national and state governments 
was sufficient to find requisite “state action” and further 
concluding that 42 U.S.C. §291e(f) and the implementing 
regulation, 42 C.F.R. §53.112, were unconstitutional. The 
opinion of the Court of Appeals was filed on November 
1, 1963. Certiorari was denied, 376 U.S. 938, on March 2, 
1964. In Simkins, this Court expressly relied upon and 
applied prior decisions, especially Burton v. Wilmington 
Parking Authority, 365 U.S. 715 (1961). The following 
language from Burton was quoted with approval in 
Simkins:

“It is clear . . . that ‘Individual invasion of individual 
rights is not the subject-matter of the admendment,’ 
. . .  and that private conduct abridging individual rights 
does no violence to the Equal Protection Clause unless 
to some significant extent the State in any of its mani­
festations has been found to have become involved in it. 
Because the virtue of the right to equal protection of 
the laws could lie only in the breadth of its appli­
cation, its constitutional assurance was reversed in 
terms whose imprecision was necessary if the right 
were to be enjoyed in the variety of individual-state 
relationships which the Amendment was designed to



13

embrace. For the same reason, to fashion and apply a 
precise formula for recognition of state responsibility 
under the Equal Protection Clause is an ‘impossible 
task’ which This Court has never attempted.’ Citation 
omitted. Only by sifting facts and weighing circum­
stances can the nonobvious involvemertt of the state in 
private conduct be attributed its true significance” 
(Emphasis in original.) 323 F. 2d at 966-67.

The appellants argue that Eaton v. Board of Managers, 
supra, should have been confined to its own facts and was 
erroneously applied by the district courts which dealt with 
situations involving Hill-Burton hospitals, and they quote 
the language of this Court in Simkins which distinguished 
that case. See Simkins, supra at 96S-69. This Court stated 
in Simkins, “In light of Burton, doubt is cast upon Eaton’s 
continued value as a precedent.” Ibid at 968. Appellants 
state that, “The Fifth Circuit had taken the same view of 
the first Eaton case as early as May 17, 1962, when it 
decided Hampton v. City of Jacksonville, 304 F. 2d 320, 
323 (5th Cir. 1962). Appellants’ Brief at 15. But see 
Simkins, supra at 976 (dissenting opinion). Based on 
these considerations, the appellants conclude that the hos­
pital has no basis for a claim that it acted in reliance on 
prior precedents in its favor and should not be exempt 
from the surprise effects of a change of law.

Prior to August, 1963, the issue of whether Hill-Burton 
hospitals were instrumentalities of the state had been con­
sidered on several occasions. A very recent decision prior 
to August, 1963, was Wood v. Hogan, 215 F. Supp. 53 
(W.D. Va. 1963), decided on March 12, 1963, which held 
that governmental licensing, tax exemptions, and financial 
assistance in construction were not sufficient to make a



14

private hospital an agency of the state, and therefore 
subject to the Fourteenth Amendment. In that opinion 
much of the significant language in Khoury v. Community 
Memorial Hospital, 203 Va. 236, 123 S.E.~2d 533 (1962), 
was quoted. That opinion also took note of Simkins v. 
Moses H. Cone Memorial Hospital, 211 F. Supp. 628 
(M.D.N.C. 1962), and Eatton v. Board of Managers, 
supra, and relied on those cases as precedents. It would be 
purely academic to discuss and to quote the language of 
the district court in Wood v. Hogcm. The federal cases, 
Simkins, supra, and Eaton, supra, have since been reversed. 
The case decided by the Supreme Court of Appeals of Vir­
ginia, Khoury, supra, at this time has no value as precedent 
for the proposition it supported in Wood. Furthermore, 
that portion of the Hill-Burton Act (42 U.S.C. §291e(f)) 
which sanctioned segregation in hospitals was later de­
clared unconstitutional, and the Civil Rights Act, as 
amended in 1964, now forbids discrimination in Hill- 
Burton hospitals. This decision was well reasoned, com­
prehensively reviewed previous cases in point, considered 
the language of the Hill-Burton Act, and, properly stated 
the law which existed at that time.

On April 9, 1963. the case of Eaton v. Grubbs, 216 
F. Supp. 465 (E.D.N.C. 1963), was decided.2 In that case, 
it was contended that Burton had changed the standard

2 This case was reversed on April 1, 1964. See Eaton v. Grubbs, 329 F.2d 
710 (4th Cir. 1965). Intervening decisions of the United States Supreme Court 
and this Court, along with more detailed allegations of state involvement in this 
proceeding were held to distinguish this case from the prior one involving the 
same hospital.



15

for determining the presence of “state action.” The court 
stated, 216 F. Supp. at 467:

“It is clear that Burton does not enunciate a funda­
mental change in the law. The same general principles 
were recognized, applied and limited to the particular 
facts in the Eaton and Burton cases. Each case must 
rest on its peculiar facts and no universal principle or 
criteria for determining State action has yet been 
established.”

The Court dismissed the complaint, finding that the new 
facts alleged did not justify a different result than had 
been reached in the first Eaton case, and that there had been 
no fundamental change in the applicable law so that the 
same decision was required in the present case under the 
doctrine of stare decisis.

Judge Haynsworth’s vigorous dissent in Simkins, in 
which Judge Boreman joined, demonstrates that the 
Simkins decision was not an obvious result to be antici­
pated after Burton was decided. After discussing and 
distinguishing Burton, Judge Haynsworth stated that 
other courts “have been unanimous in their conclusion 
that the operation of such hospitals is not state action so 
as to make applicable to them the provisions of the Four­
teenth Amendment.” 323 F. 2d at 977, and he cited Khoury 
v. Community Memorial Hospital, supra; Wood v. Hogan, 
supra; and Eaton v. Grubbs, supra. In addition, Judge 
Haynsworth pointed out, ibid, “On August 7, 1963, the 
Senate rejected a proposal that henceforth grants in aid 
to hospitals under the Hill-Burton Act be restricted to 
hospitals which are desegregated and which practice no 
discrimination on account of race.”



16

These considerations refute the appellants’ contention 
that Simkins applied existing- law and that the result in 
Simkins should have been anticipated by the hospital. On 
the contrary, these considerations demonstrate the cor­
rectness of the District Court’s conclusion stated at 243 
F. Supp. 406:

“There is nothing in Burton v. Wilmington Parking 
Authority, 365 U.S. 715, decided in 1961, which would 
give rise to the belief that the rule in Simkins was 
forthcoming. That was a case in which an agency of 
the State of Delaware constructed a parking facility 
with a restaurant as an integral part thereof. The 
entire building was a public structure, owned by a 
public authority, and serving a public function. Even 
to this date, following Simkins and the enactment of 
the Civil Rights Act of 1964, it has not been said that 
hospitals are “public” to the extent that the private 
corporations operating same are converted into a public 
body . . .  it is unquestioned that, at the time these 
causes of action now asserted by the plaintiffs arose, 
the state and federal law was clear and plaintiffs had 
no cause of action.”

B. ALTHOUGH L IN K L E T T E R  v. W A L K E R  AND 
FLEM M ING  v. SO U TH  CARO LINA ELECTRIC  & 
G AS CO. ARE NOT CONTROLLING ON TH IS 
CASE, TH EIR RATIONALES SERVE AS A GUIDE 
IN ANSW ERING T H E  IN ITIA L QUESTION PRE­
SENTED.

In the recent case of Linkletter v. Walker, 381 U.S. 618 
(1965), the Supreme Court held that the exclusionary prin­
ciple stated in Mapp v. Ohio, 367 U.S. 643 (1961), did not



17

apply to state court convictions which had become final be­
fore rendition of that opinion. The Supreme Court out­
lined the history and theory concerning whether judicial 
decisions should always be given retrospective effect. 381 
U.S. at 6 . The Supreme Court favored the Austinian view 
that judges do more than discover law; when a case is over­
ruled, although the earlier decision was wrongly decided, 
nevertheless that decision was a juridical fact until over­
ruled, and rights which vested under that decision should 
not be disturbed.

“The theory was, as Mr. Justice Holmes stated in 
Kuhn v. Fairmont Coal Co., 215 U.S. 349, 371, 30 
S.Ct. 140, 148 (1910), “that a change of judicial de­
cision after a contract has been made on the faith of 
an earlier one the other way is a change of the law ” 
381 U.S. at 6 .

Justice Cardozo applied the Austinian approach in order to 
avoid “injustice and hardship” and he ruled that courts have 
the power to say that decisions though later overruled “are 
law none the less for intermediate transactions.” See Great 
Northern Ry. v. Sunburst Oil & Refining Co., 287 U.S. 
358 (1932) at 364. Justice Hughes stated the guidelines 
that the Supreme Court applied in Linkletter in the follow­
ing language:

“The courts below have proceeded on the theory that 
the Act of Congress, having been found to be un­
constitutional, was not a law; that it was inoperative, 
conferring no rights and imposing no duties, and 
hence affording no basis for the challenged decree. 
(Citations omitted) It is quite clear, however, that 
such broad statements as to the effect of a determina­



18

tion of unconstitutionality must be taken with qualifi­
cations. The actual existence of a statute, prior to 
such a determination, is an operative fact and may 
have consequences which cannot justly be ignored. 
The past cannot always be erased by a new judicial 
declaration. The effect of the subseqent ruling as to 
invalidity may have to be considered in various 
aspects, with respect to particular relations, individual 
and corporate, and particular conduct, private and 
official. Questions of rights claimed to have become 
vested, of status, of prior determinations deemed to 
have finality and acted upon accordingly, of public 
policy in the light of the nature both of the statute 
and of its previous application, demand examination. 
These questions are among the most difficult of those 
which have engaged the attention of courts, state and 
federal, and it is manifest from numerous decisions 
that an all-inclusive statement of a principle of ab­
solute retroactive invalidity cannot be justified.” Chicot 
County Drainage Dist. v. Baxter State Bank, 308 
U.S. 371 (1940) at 374.

The Supreme Court concluded in Linkletter that neither 
the Constitution nor any other body of law required or pro­
hibited a court from applying a decision retrospectively. 
A court must weigh the merits and demerits in each case 
by looking to the prior history of the rule in question, its 
purpose and effect, and whether retrospective operation 
would further or retard its operation, before deciding 
whether or not the rule should be applied retrospectively.

In the case of Flemming v. South Carolina Electric & 
Gas Co., 239 F. 2d 277 (4th Cir. 1956) at 279, this Court



19

considered a similar problem concerning the retrospective 
effect of new judicial interpretations.3 The primary dis­
tinction between Flemming and this case is one of form 
and not of substance. In Flemming, a bus driver acted to 
enforce a state statute; in this case, the assistant adminis­
trator acted to enforce a hospital policy. By substituting 
the word “policy” for the word “statute” in the text of the 
opinion, one might then inquire if Flemming is applicable 
to this case. In the language of Flemming the question 
in this case becomes whether action taken under a policy 
valid under the constitutional doctrine (judicial decisions) 
prevailing at the time it was taken is protective from civil 
responsibility where the policy is subsequently declared un­
constitutional.4 In Flemming, this Court said supra, at 
279, “Here the only basis upon which the statute could be 
sustained, the separate but equal doctrine, had been re­
pudiated by the Supreme Court prior to the commission 
of the act constituting the ground of liability.” In Flem­
ming, the state statute was plainly unconstitutional at the 
time the cause of action arose; in the present case, the 
policy under attack was plainly valid under judicial de-

3 That action was for damages for alleged violation of civil rights, and in­
volved a bus driver who required a Negro passenger to change her seat in 
accordance with the segregation statutes then in force in South Carolina. The 
Court, however, decided that at the time of the bus driver’s acts there could 
be no doubt that the “separate but equal’’ doctrine of Plcssy v. Ferguson, 163 
U .S. 537 (1896), had been generally repudiated by prior opinions of the 
Supreme Court in the school cases of Brown v. Board of Education, 347 U.S. 
483 (1954) ; and Bolling v. Sharpe, 347, U .S. 497 (1954).

4 This case does not involve an act in reliance on a policy, subsequently 
declared unconstitutional, which would otherwise subject a person to liability. 
See 16 A m. J ur. 2d, “Constitutional Law” §178 (1964). An employer has the 
legal right to discharge his employee with or without cause. The employee 
would then have a right to sue his employer for breach of the employment 
contract. Therefore, the act of the assistant administrator was not one which 
would othenvise subject him to liability.



20

cisions in existence at the time the causes of action arose. 
In Flemming, the plainly unconstitutional statute acted on 
was not a complete defense to liability, but was to be con­
sidered by the jury on the issue of damages. The circum­
stances in this case are such that the plainly valid policy 
acted on should be a complete defense to this action. Based 
on the circumstances in this case as applied to the language 
in Flemming, this Court should find that there was no 
unlawful state action to render the defendants civilly re­
sponsible for an act done in reliance on the constitutional 
doctrine prevailing at the time.

The initial question in this case is whether the conduct 
of the assistant administrator of the Dixie Hospital in 
August, 1963, when he discharged the nurses, constituted 
unlawful state action which subjects the hospital to li­
ability. It is not disputed that similar conduct after No­
vember 1, 1963, i.e. after Simkins had been decided, would 
constitute the requisite state action to give this Court 
jurisdiction to enjoin future acts of unlawful racial dis­
crimination and to award damages for violation of civil 
rights arising out of such discrimination occurring after 
November 1, 1963. In Simkins, and Eaton v. Grubbs, supra, 
decided thereafter, the claims of racial discrimination were 
found to be clearly established. Such discrimination ap­
parently was being practiced at the time of those decisions 
and continued until the appropriate injunctions were issued 
by the district courts. Therefore, this Court could have 
applied its interpretation of what constitutes state action 
in a constitutional sense, to the discrimination practiced by 
the hospitals on the same day the cases were decided. The 
purpose of the Simkins and Eaton decisions was to end 
racial discrimination in Hill-Burton hospitals, not to punish



21

past acts of discrimination. The basic result reached in 
these decisions was to give prospective effect to the de­
cisions by granting injunctive relief which necessarily 
looks to the future.5 In other words, this Court said, in 
effect, that since this conduct is unlawful state action, the 
hospitals may not continue to discriminate on a racial basis 
in the future. The purpose of the Simkins and Eaton de­
cisions would not be furthered in any way by giving 
retrospective effect to the decisions. See Linkletter v. 
Walker, supra. Similarly, the Civil Rights Act, as amended 
in 1964, was not given retroactive effect. It is submitted 
that this Court would not have given retrospective effect to 
its decisions, for example, by granting damages or impos­
ing a fine for past violations of the plaintiffs’ civil rights 
by the hospitals. Such a result would have been harsh and 
unwarranted, and such relief would not have been granted 
where it appeared that the hospitals acted in good faith 
under the judicial decisions and statutes enabling them to 
operate as private entities. The action by the assistant ad­
ministrator of the Dixie Hospital was lawful in August 
of 1963, and it would be unjust to now hold that that 
conduct has changed to unlawful state action for which 
the hospital is liable. To so hold would be to encourage 
civil disobedience of all existing laws, and to discourage 
responsible persons from enforcing laws that are supposedly 
valid.

The existence of the judicial decisions heretofore cited 
as well as the statute and implementing regulation, all of 
which demonstrate that Simkins was a change in the law,

5 These rulings were not purely prospective since they were applied to the 
parties before the Court. A  ruling which is purely prospective does not apply 
even to the parties before the Court. See Linkletter v. Walker, supra, at



22

is an operative fact and has consequences which cannot 
justly be ignored. See Chicot County Drainage Dist. v. 
Baxter State Bank, supra. The fact that numerous Hill- 
Burton hospitals conducted themselves as private entities 
and in the belief that their acts were not official state action 
must be considered. The particular relations involved in this 
case should be considered. The Dixie Hospital was a cor­
porate entity which performed services in the public in­
terests and action taken by the entity was believed to have 
been private. The status of the parties in this case, that of 
employer-employee, involved a contractual relationship in 
which the rights of the parties had vested under the law 
which existed at the time the contract was made. It would 
be unjust to destroy these rights and change the status of 
the parties by a subsequent change in the law. Ibid.

Wherever there was segregation in the past, there was 
discrimination which under today’s statutory law and 
judicial decisions would be unlawful. Surely this Court 
does not intend to create a cause of action for every person 
so wronged and to now allow him to bring an action for 
damages. Obviously, such a result would retard the ad­
ministration of justice by flooding the courts with litigation 
over causes of action which arose many years ago. The 
past cannot always be erased by a new judicial declaration. 
See Linkletter v. Walker, supra.

For the foregoing considerations, the District Court 
properly concluded at 243 F. Supp. 406:

“Weighing the merits and demerits in this case and 
considering the status of the parties at the time the 
alleged cause of action arose, we think that public 
policy dictates that, whatever may be the rights of a



23

Negro discharged from employment following the de­
cision in Simkins by the Court of Appeals and the 
subsequent denial of certiorari, together with the 
passage of the Civil Rights Acts of 1964, no rights 
are created which should be accorded retrospective 
effect.”

II. TH E  NURSES ARE NOT ENTITLED TO RE­
INSTATEM ENT W ITH  BACK PAY

The appellants were employed as nurses by the Dixie 
Hospital and their salaries were fixed on a monthly basis. 
A contract for a monthly salary not specifying any definite 
term may be terminated by either party at the end of a 
month. Even where there is a contract of service for a 
definite time, an employer who discharges an employee is 
responsible in damages merely for violating the contract; 
having the right to discharge, the employer thereby subjects 
himself to liability for breach of contract unless good cause 
for discharge exists, in which case he incurs no liability as for 
breach of contract. See 35 A m . J u r . Master and Servant 
§34 (1941).

This suit is allegedly an action to redress the depriva­
tion by state action of rights, privileges and immunities 
secured by the Fourteenth Amendment to the Constitution 
of the United States and by 42 U.S.C. §1981 which pro­
vides for the equal rights of all persons as follows:

“All persons within the jurisdiction of the United 
States shall have the same right in every State and 
Territory to make and enforce contracts, to sue, be 
parties, give evidence, and to the full and equal benefit 
of all laws and proceedings for the security of persons



24

and property as is enjoyed by white citizens, and shall 
be subject to like punishment, pains, penalties, taxes, 
licenses, and exactions of every kind, and to no other. 
R.S. §1977.”

Section 1983 of the same Title states:

“Every person who, under color of any statute, ordi­
nance, regulation, custom, or usage, of any State or 
Territory, subjects, or causes to be subjected, any 
citizen of the United States or other person within the 
jurisdiction thereof to the deprivation of any rights, 
privileges, or immunities secured by the Constitution 
and laws, shall be liable to the party injured in an 
action at law, suit in equity, or other proper proceed­
ing for redress. R.S. §1979.”

Section 1983 authorizes actions at law, suits in equity, or 
other proper proceedings for redress. The Federal Rules 
of Civil Procedure govern the procedure in all suits of a 
civil nature whether cognizable as cases at law or in 
equity. The federal statute making actionable the depriva­
tion of civil rights under color of state law (42 U.S.C. 
§1983) does not extend the sphere of federal equitable 
jurisdiction with respect to what shall be held appropriate 
subject matter for that kind of relief; it allows a suit in 
equity only when what is the proper proceeding for re­
dress, and refers to existing standards for a determination 
of what is such a proceeding. See Giles v. Harris, 189 
U.S. 475 (1903). In considering the right to injunctive 
relief in a suit under 42 U.S.C. §1983, the Court applies 
the ordinary principles of equity, determining whether



25

the plaintiff has shown irreparable damage in the absence 
of a plain, adequate and complete remedy at law. See 15 
A m . J u r . 2d “Civil Rights” §70 (1964).

Civil rights are all those rights which the law gives a 
person or which the law will enforce. Civil rights embody 
also the right to enjoyment of such guaranties as are 
contained in constitutional or statutory law. No such rights 
have been denied to these plaintiffs by these defendants. 
There is no vested right to employment in public or private 
occupations in the absence of special circumstances not 
here present. The plaintiffs had the right to bring suit to 
determine the validity of the offensive policies of the 
hospital either by an action for declaratory judgment 
or an injunction. They had the same civil rights as any 
white person, but they did not have more or greater rights, 
which they would appear to have, if they are granted the 
relief sought in this case.

The appellants have been unable to cite any authority 
which indicates that employees of a private corporation 
which performs a public function in the public interest 
have a right to be reinstated after being wrongfully dis­
charged. The cases cited by the appellants in their Brief 
involve the National Labor Relations Board and either 
federal, state or municipal employment. Seen generally 15 
A m . J u r . 2d, “Civil Rights” § 56-62 (1964). This case 
involves private employment. Each of the cited cases in­
volved an unconstitutional condition precedent to the em­
ployment contract. When those persons refused to perform 
the conditions precedent they were barred from employ­
ment or discharged. When these conditions precedent to 
the employment contract were declared unconstitutional, 
the bar to employment was removed and the wrongfully



26

discharged employees were entitled to reinstatement in 
their public avocation. There was no other reason to bar 
their employment. In this case the condition precedent to 
employment was that employees obey hospital rules and 
policies. This implied condition was initially accepted by 
the plaintiffs and then breached at a later date. In the 
cited cases the prospective employees never accepted or 
performed the offensive conditions to employment. They 
preferred no employment to employment under the of­
fensive conditions existing. Obviously this was not the 
situation in this case.

In the complaint in this case a letter from William 
Alfred Smith, plaintiffs’ attorney, to William C. Walton, 
a defendant in this case, is set forth. The following 
pertinent language is found in that letter:

“On August 9, 1963, I am advised, Mrs. Smith, a 
registered nurse, Miss Stokes, a licensed practical 
nurse, and Miss Taylor were discharged from their 
employment with Dixie Hospital solely because they 
ate in the staff cafeteria rather than in a converted 
classroom which has been set aside as a dining room 
for Negro nurses . . . This letter is written to you in 
an effort to rectify this matter at this level. I hereby 
request that you take prompt action in reinstating the 
said three nurses with retroactive pay. In the alter­
native, you may advise me of the appellate procedure, 
if any, which you have at your institution for the 
redress of employer-employee matters of this nature.”



27

The “redress of employer-employee matters of this nature” 
is no longer acceptable to the individual plaintiffs. They are 
not content to request relief based on well established 
theories of contract and master-servant law as other in­
dividuals should and would.

There is no right to equitable relief in this action. The 
Civil Rights Act has not extended the basic principles of 
equitable jurisdiction. The authority cited in support of 
granting reinstatement is not in point and there is no 
authority to the effect that plaintiffs may be reinstated 
with back pay under similar facts and conditions. The 
hospital’s receipt of federal funds did not convert an other­
wise private employment contract into public employment.

There are sound reasons why such relief has not been 
granted in the past and should not be granted in this case. 
Many difficult problems would be presented and hardships 
imposed. If this Court affords the equitable relief sought 
in this case, whom will it order the defendants to discharge 
so that these plaintiffs may be reinstated? What will be the 
terms of their re-employment contract? Will they be 
“privileged characters” who can’t be discharged at the 
end of each month at the will of their employer ?

The nurses have not shown irreparable damage in the 
absence of a plain, adequate and complete remedy at law and 
the District Court correctly decided that the hospital was 
not liable for back pay and was not required to reinstate 
the nurses to their former positions.



28

CONCLUSION

The District Court properly ruled that Simkins v. 
Moses H. Cone Memorial Hospital, supra, changed the 
law. After weighing the merits and demerits in this case 
and considering the status of the parties at the time the 
alleged cause of action arose, the District Court con­
cluded that public policy dictated that no rights were 
created by Simkins which should be accorded retrospective 
effect, and that therefore the appellants were not entitled 
to reinstatement with back pay.

Wherefore, for the foregoing reasons, the appellees 
pray that the Court of Appeals will affirm the judgment 
below.

Respectfully submitted,

E. R a l p h  J a m e s  

W. S t e p h e n  M o o r e

Attorneys for Appellees

J a m e s , R i c h a r d s o n  &  J a m e s  

Citizens and Marine Bank Building 
Hampton, Virginia
Of Counsel: