Bryan v. Koch

• Decision Date: 10 July 1980
• Docket Number: 1358,AFL-CIO,D,Nos. 1357,s. 1357
• Citation: 627 F.2d 612
• Parties: David E. BRYAN, Jr., et al., Plaintiffs-Appellants, v. Edward I. KOCH, Mayor, City of New York, et al., Defendants-Appellees. DISTRICT COUNCIL 37, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES UNION,, et al., Plaintiffs-Appellants, v. Edward I. KOCH, Mayor, City of New York, et al., Defendants-Appellees. Naomi BOYD et al., Plaintiffs-Appellants, v. Patricia HARRIS, Individually and in her capacity as Secretary of the United States Department of Health, Education and Welfare, et al., Defendants-Appellees. ockets 80-6085, 80-7401.
• Court: U.S. Court of Appeals — Second Circuit

Page 612

627 F.2d 612

David E. BRYAN, Jr., et al., Plaintiffs-Appellants, v. Edward I. KOCH, Mayor, City of New York, et al.,

Defendants-Appellees.

DISTRICT COUNCIL 37, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES UNION, AFL-CIO, et al., Plaintiffs-Appellants, v. Edward I. KOCH, Mayor, City of New York, et al.,

Defendants-Appellees.

Naomi BOYD et al., Plaintiffs-Appellants, v. Patricia HARRIS, Individually and in her capacity as

Secretary of the United States Department of

Health, Education and Welfare, et al.,

Defendants-Appellees.

Nos. 1357, 1358, Dockets 80-6085, 80-7401.

United States Court of Appeals Second Circuit.

Argued May 30, 1980.

Decided July 10, 1980.

Beth J. Lief, New York City (Jack Greenberg, New York City, on the brief), for plaintiffs-appellants David E. Bryan et al.

Herbert Semmel, Washington, D.C. (Sanford J. Newman, Center for Law and Social Policy, Washington, D.C., Beverly Gross, Karen Smith and Joel Giller, New York City, on the brief), for plaintiffs-appellants District Council 37 et al.

Ramon J. Jiminez, New York City (Louis B. York, Richard Clifford, Manhattan Legal Services Corp., New York City, on the brief), for plaintiffs-appellants Naomi Boyd et al.

Bruce S. Kaplan, New York City (Allen G. Schwartz, Corp. Counsel, Norma Kerlin and Bradley A. Sacks, New York City, on the brief), for defendants-appellees.

William J. Hibsher, Asst. U.S. Atty., New York City (Drew S. Days, III, Asst. Atty. Gen., John E. Huerta, Deputy Asst. Atty. Gen., David L. Rose and Irving L. Gornstein, Washington, D.C., John S. Martin, Jr., U.S. Atty., Dennison Young, Jr., and Michael H. Dolinger, Asst. U.S. Attys., New York City, on the brief), for the U. S. as amicus curiae.

Before FEINBERG, Chief Judge, and NEWMAN and KEARSE, Circuit Judges.

NEWMAN, Circuit Judge:

This litigation challenges New York City's decision to close Sydenham Hospital, one of its 17 municipal hospitals, on the ground that the City's proposed action would constitute racial discrimination in the use of federal funds in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq. Like most American cities, New York has struggled mightily to provide adequate municipal services with limited financial resources; its difficulties have become particularly severe since its budget crisis that began in the mid-1970's. Closing Sydenham is one of the many painful steps that the City has undertaken or proposed in an effort to maintain financial stability. The discrimination claim in this case arises from the fact that Sydenham, located in central Harlem, serves a population that is 98% minority (Black and Hispanic). Three related cases have been brought to prevent the closing of the Hospital, or at least to ameliorate the effects that the closing would have on the minority population it serves. This consolidated appeal is from the denial of a preliminary injunction. We affirm because we agree with the District Court that there is no likelihood that plaintiffs will prevail on the merits.

I.

In April, 1979, Mayor Koch appointed a Health Policy Task Force to examine ways of reducing costly excess hospital capacity while maintaining access to high quality health services. The Task Force report, issued June 20, 1979, recommended a series of steps that the City's Health and Hospital Corporation (HHC) estimated would save $30 million in fiscal year 1981. With respect to the 17 hospitals of the municipal hospital system, the report proposed that some hospitals be replaced, that some hospitals reduce the number of beds, and that two hospitals, Sydenham and Metropolitan, both located in Harlem, be closed. The HHC approved the report on June 28, 1979. On August 12, 1979, the first of the three cases in this litigation, Bryan v. Koch, was filed on behalf of a class of low income Black and Hispanic residents of New York City who use the municipal hospital system. Defendants are the City and State of New York, the HHC, the State Health Department, and various city and state officials, including Mayor Koch. The U. S. Department of Health and Human Services (HHS) (formerly Department of Health, Education and Welfare) was joined as a defendant, though not charged with any violation of law. On September 12, 1979, the second suit, District Council 37 v. Koch, was filed by District Council 37, American Federation of State, County and Municipal Employees Union, AFL-CIO, and five of its members on behalf of its Black and Hispanic members who use the municipal hospital system. Defendants are the City, the HHC, and the city officials named in Bryan. Both suits, which have been consolidated, allege that the City's proposed plan for the municipal hospital system violates various federal civil rights statutes, primarily Title VI. In addition, the Bryan complaint alleges a pendent state law claim not involved on this appeal.

On January 25, 1980, the City defendants gave notice to the State Health Commissioner of intention to close Sydenham in 90 days. Plaintiffs moved for a preliminary injunction to prevent the closing pending the lawsuit or at least until there was adequate assurance of alternate in-patient and emergency care for the minority population served by Sydenham. The District Court for the Southern District of New York (Abraham D. Sofaer, Judge) held hearings on this motion for 13 days during March and April.

On April 30, 1980, the third suit, Boyd v. Harris, was filed on behalf of a class of low income minority residents of New York City who use the municipal hospital system. Defendants are the City and Mayor Koch, the HHC and its president, and the Secretary of HHS. The Boyd suit repeated the Title VI claims of the Bryan suit and in addition alleged that the Secretary of HHS was violating her Title VI duties by failing to investigate an administrative complaint concerning the proposed hospital closing and failing to take enforcement action against the City defendants. The Boyd complaint also alleged that the City defendants were obstructing an HHS Title VI investigation. The Boyd plaintiffs also sought a preliminary injunction to prevent the closing of Sydenham, agreeing to accept the Bryan hearing record for their injunction motion.

Until May 13, 1980, the Government had taken no position on any aspect of the litigation. On that day, Judge Sofaer, diligently endeavoring to ready the preliminary injunction motion in all three lawsuits for a prompt decision in light of the Mayor's announced decision to close Sydenham on May 16, inquired of counsel for HHS as to the federal government's position with respect to the preliminary injunction. The following day counsel for the Government advised the Court by letter that it favored the granting of a preliminary injunction, because it agreed with the Title VI allegations advanced in the Bryan suit and with the contention in the Boyd suit that the closing of Sydenham should be deferred at least until completion of HHS's Title VI investigation.

On May 15, 1980, Judge Sofaer denied the injunction in all three suits in a thorough opinion, which he amended on May 23. 492 F.Supp. 212. Judge Sofaer reached essentially four conclusions. First, he concluded that Title VI, like the Equal Protection Clause of the Fourteenth Amendment, condemns only conduct motivated by "a racially discriminatory purpose." Washington v. Davis, 426 U.S. 229, 240, 96 S.Ct. 2040, 2047, 48 L.Ed.2d 597 (1976). Second, he found that the evidence wholly failed to show that the City's decision to close Sydenham was racially motivated. Third, he found that even if a Title VI violation could be established by the "effects" test evidence of a disproportionate racial impact or effect unjustified by any legitimate governmental purpose, see Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974) the evidence adequately established the City's justification for closing Sydenham. Finally, he concluded that the availability of adequate alternative treatment for "most, if not all" of the persons served by Sydenham eliminated the prospect of irreparable harm required for issuance of a preliminary injunction.

The plaintiffs in all three suits appeal from the denial of the injunction. The Bryan and District Council 37 plaintiffs argue that the proper standard for assessing a claim of discrimination under Title VI is the effects test of Lau v. Nichols, supra, and not the intent or purpose test of Washington v. Davis, supra. Applying the effects test, they contend that the burden of closing Sydenham falls disproportionately on Blacks and Hispanics and that the closing will cause significant adverse effects because alternative health care arrangements are not assured. They further contend that the City's justification for closing Sydenham fails to satisfy Title VI, especially for lack of adequate consideration of alternative ways of achieving what plaintiffs allege would be comparable or even greater savings. The Boyd plaintiffs contend, in addition, that the closing of Sydenham should be stopped at least pending the completion of HHS's administrative investigation.

Though HHS is a defendant in the litigation, it does not appear in this Court either as appellant or appellee. However, the United States filed a brief as amicus curiae, and supplemented its views after oral argument. ¹

II.

The standard for review of the grant or denial of a preliminary injunction as "a general rule" is whether there has been "a clear showing that the District Judge abused his discretion." Jack Kahn Music Co. v. Baldwin Piano & Organ Co., 604 F.2d 755, 758 (2d Cir. 1979). We are inclined to examine the injunction denial somewhat more rigorously on this appeal for two reasons. First, the District Court conducted nearly a plenary hearing, resolving with virtual finality the merits of plaintiffs' claim that the closing of Sydenham violates Title VI. Second, the closing is a significant event, unlikely to be altered once the action...