Bryan v. Koch

627 F.2d 612

• Court: Court of Appeals for the Second Circuit
• Decided: July 10, 1980
• Docket: Nos. 1357, 1358, Dockets 80-6085, 80-7401
• Status: Published

Opinions

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 May- or’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 has been taken.

On the merits of the Title VI claim, we recognize the possibility of applying the intent standard of Washington v. Davis, supra. Indeed, three days after this appeal was heard, another panel of this Court declared that discriminatory intent is required whether challenged governmental action is evaluated “under the Equal Protection Clause or under the Civil Rights Act of 1964, Title VI” because the “standard of discrimination in Title VI is the same standard the Supreme Court establishes for discrimination under the Fifth and Fourteenth Amendments.” Lora v. Board of Education, 623 F.2d 248, 250 (2d Cir. 1980). If we were to apply an intent standard, the District Court’s denial of an injunction would clearly have to be affirmed, since the findings that the City acted without discriminatory intent are fully supported by the evidence.

However, it is at least arguable that Lora does not determine the issues before us. The arguments would be as follows. First, the Supreme Court’s decision in Lau v. Nichols, supra, applying an effects standard to Title VI, has not been overruled, see Lora v. Board of Education, supra, 623 F.2d at 251 (Oakes, J., concurring), and has been viewed as controlling by this Circuit, Board of Education v. Califano, 584 F.2d 576, 589 (2d Cir. 1978), aff’d, 444 U.S. 130, 100 S.Ct. 363, 62 L.Ed.2d 275 (1979), and other courts. Guadalupe Organization, Inc. v. Tempe Elementary School District No. 3, 587 F.2d 1022, 1029 n.6 (9th Cir. 1978); Serna v. Portales Municipal Schools, 499 F.2d 1147, 1154 (10th Cir. 1974); see Wade v. Mississippi Cooperative Extension Service, 528 F.2d 508 (5th Cir. 1976); Shannon v. HUD, 436 F.2d 809, 816-17 (3d Cir. 1970). Second, Lora, like its predecessor in this Circuit, Parent Ass’n of Andrew Jackson High School v. Ambach, 598 F.2d 705 (2d Cir. 1979), involves a court-ordered school desegregation remedy for which Title IV, 42 U.S.C. § 2000c-6 (1976), provides the relevant standard, confining a court’s remedial authority to instances of de jure- segregation. See 598 F.2d at 715-17. Third, even if Title VI requires proof of discriminatory intent before federal funds may be terminated, it does not necessarily follow that such a finding is required in a private litigant’s suit seeking an injunction to prevent future discrimination. Finally, HHS regulations impose an effects test, explicitly prohibiting a recipient of federal funds from using “criteria or methods of administration which have the effect of subjecting individuals to discrimination,” 45 C.F.R. § 80.-3(b)(2), and HHC has contractually bound itself to observe these regulations. See Fullilove v. Klutznik, - U.S. -, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980) (plurality opinion).

We express no view on the merits of any of these contentions, nor do we find it necessary to decide whether singly or together they provide a sufficient basis for distinguishing Lora. Even under the effects standard, we conclude that the judgment of the District Court should be affirmed. Applying that standard, we agree with the plaintiffs that they have sufficiently shown a disproportionate racial impact to require justification by the defendants. Disparity appears from comparing the 98% minority proportion of the Sydenham patients with the 66% minority proportion of the patients served by the City’s municipal hospital system. Whether the impact of this disparity is sufficiently adverse to create a prima facie Title VI violation is a closer question. The District Court was satisfied with the City’s estimates for the care of Sydenham patients in nearby municipal and voluntary hospitals. Nevertheless, the District Court acknowledged that at least a small number of patients, those admitted to the emergency room because of gunshot or knife wounds or drug overdoses, would suffer adverse consequences if the nearest emergency room treatment available were at even slightly more distant locations. Moreover, we share the plaintiffs’ concern that the City’s estimates for alternative care of Sydenham’s patients rests on projections about the availability of bed space without sufficient assurance that the voluntary hospitals on which the City relies will admit all of Sydenham’s patients in financial need. Whether these hospitals will admit Sydenham’s Medicaid patients remains an issue in some dispute, and even if Medicaid patients will be admitted, it is also unclear what will happen with those eligible for Medicaid who are unable to establish their eligibility at the time hospital admission is needed.²

We therefore consider it appropriate to complete an assessment of plaintiffs’ Title VI claim by examining the justification advanced by the City for closing Sydenham. As the District Court found, that justification is both the reduction of expenditures and the increase in efficiency within the municipal hospital system. Though the plaintiffs dispute the amount of savings the City claims will be achieved, they acknowledge that there is sufficient evidence to support the District Court’s finding that closing Sydenham will reduce expenditures to some extent. However, saving money, while obviously a legitimate objective of any governmental plan to close a public facility, cannot be a sufficient justification in a case like this where public officials have made a choice to close one of 17 municipal hospitals. In such circumstances it is the choice of this particular hospital that must be justified.³

To provide a basis for making this choice the Task Force report initially assessed each of the municipal hospitals against four sets of criteria: (a) hospital size, scope of patient services, and extent of usage; (b) patient access to comparable alternative facilities; (c) quality of plant and operations; and (d) present and predicted fiscal performance. Among the several hospitals considered deficient in this assessment, recommendations for closure were made for those hospitals with disproportionately high operating-deficits and obsolete plants, located within 30 minutes of other municipal hospitals with comparable or broader services. These criteria are reasonably related to the efficient operation of the City’s municipal hospital system, and the evidence abundantly justifies the selection of Sydenham based on these criteria. Sydenham is the smallest of the City’s 13 acute care municipal hospitals. In 1979 the average daily in-patient caseload was only 93, and the average daily emergency room caseload was only 70. The operating deficit was high, and the difference between per patient cost and Medicaid reimbursement was the highest of all the municipal hospitals. Built in 1925, its plant is obsolete and badly in need of costly renovation. Moreover, Sydenham is located within 30 minutes of another municipal hospital, Harlem, which had a 75% occupancy rate in 1979, as well as five voluntary hospitals.

If any of the municipal hospitals are to be closed, plaintiffs do not dispute that Sydenham is an appropriate choice for closing. Their claim is that the closing of a federally funded facility resulting in a disproportionate racial impact violates Title VI unless the defendants establish the unavailability of alternative measures that would save equivalent money with less disproportionate impact. Proceeding from this premise, plaintiffs further contend that instead of closing any municipal hospitals, the City could save as much money or more and avoid a disparate racial impact by such alternatives as hospital mergers, regionalization of services, increasing Sydenham’s services to reduce its deficit, or increasing Medicaid reimbursement.

Neither Title VI nor the HHS regulations explicitly require a federal fund recipient to consider alternatives to a proposed placement or closing of a public facility. It is unlikely that challenges to such governmental actions were even contemplated when Title VI was enacted in 1964. The focus at that time was on federally aided facilities that denied access to minorities or admitted them only to segregated portions of a facility. See, e. g., H.R.Rep. No.914, 88th Cong. (1964), additional views of Hon. William M. McCulloch et al., reprinted in [1964] U.S.Code Cong. & Admin. News, pp. 2487, 2511. The argument for consideration of alternatives in placing or closing facilities stems from two sources. HHS has expressed its view as the administrator of federal medical care funds that its regulations should be interpreted to require consideration of alternatives. On March 5, 1980, the Undersecretary of what was then HEW wrote to Mayor Koch, in connection with the proposed closing of municipal hospitals, that if closings were to create a disparate racial impact, the City would have an opportunity to establish that they are “necessary to achieve legitimate objectives unrelated to race or national origin and that these objectives cannot be achieved by other measures having a less disproportionate adverse effect.” In addition to this administrative interpretation, an “alternatives” test has also been applied by courts assessing discriminatory actions challenged under Title VII, e. g., Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975) (“If an employer does then meet the burden of proving that its tests are ‘job related,’ it remains open to the complaining party to show that other tests or selection devices, without a similarly undesirable racial effect, would also serve the employer’s interest in ‘efficient and trustworthy workmanship.’ ”); Blake v. City of Los Angeles, 595 F.2d 1367, 1383 (9th Cir. 1979); Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 245-46 (5th Cir. 1974); United States v. Bethlehem Steel Corp., 446 F.2d 652, 662 (2d Cir. 1971); Title VIII, e. g., Resident Advisory Board v. Rizzo, 564 F.2d 126, 149 (3d Cir. 1977), and in at least one instance under Title VI, NAACP v. Wilmington Medical Center, 491 F.Supp. 290 (D.Del.1980).

The consideration of alternatives that has occurred in Title VII cases is instructive as to the appropriate standard for challenges under Title VI. Title VII cases typically involve a challenge to a particular selection device, frequently an examination. If the selection device has a disparate racial impact, there is a compelling argument for prohibiting its use, despite its job-relatedness, if another device will also select qualified employees and have a lesser disparate impact. In that context the inquiry is sharply focused upon comparable alternatives — other selection procedures or examinations. With Title VI, however, the inquiry could frequently become too open-ended. If, for example, a court were to assess alternative ways of saving funds throughout the administration of a city or even throughout the administration of the health care function, it would seriously risk substituting its own judgment for that of the city’s elected officials and appointed specialists. We are skeptical of the capacity and appropriateness of courts to conduct such broad inquiries concerning alternative ways to carry out municipal functions. Once a court is drawn into such a complex inquiry, it will inevitably be assessing the wisdom of competing political and economic alternatives. Moreovér, such policy choices would be made without broad public participation and without sufficient assurance that the alternative selected will ultimately provide more of a benefit to the minority population.

In Title VII cases, the inquiry into alternatives is focused on considering alternative means of selecting the number of employees that the employer has decided to hire, for the type of job that the employer has designated. No inquiry is made into whether the employer could reduce the racially disproportionate impact of his selection procedure by considering such broad alternatives as hiring additional employees or changing the method of production. In this case, an inquiry comparable to a Title VII consideration of alternative selection procedures would be consideration of whether closing any other municipal hospitals could have achieved the City’s objectives with less disparate racial impact. Even a Title VI inquiry focused primarily upon alternative locations for placement or closing of facilities extends courts beyond their traditional functions. See, e. g., NAACP v. Wilmington Medical Center, supra. We do not foreclose the possibility of a situation where some arrangement, other than the closing of another facility, has such obvious advantages that it must be considered as an alternative to a closing with a significant disproportionate racial impact. However, in this case, we do not believe Title VI requires consideration of alternatives beyond an assessment of all the municipal hospitals in order to select one or more for closing. The City made that assessment, and the appropriateness of their choice of Sydenham for closing was sufficiently demonstrated in court. Cf. West v. Board of Education, 612 F.2d 644 (2d Cir. 1979). The alternatives plaintiffs wish to have considered are more appropriate for examination by administrative, legislative, and other political processes than by the courts.⁴

Without expressing any views as to the wisdom of closing Sydenham Hospital, we conclude that the plaintiffs have shown no likelihood of success in establishing that its closing would violate Title VI, and the District Court therefore did not err in denying a preliminary injunction.

III.

Wholly apart from whether a Title VI violation might ultimately be found, the Boyd plaintiffs contend that a preliminary injunction is required to maintain the status quo pending the completion of HHS’s administrative investigation. Though HHS has never moved for such an injunction on its own behalf,⁵ the United States as amicus contends that a private plaintiff in a Title VI suit may secure a preliminary injunction pending an administrative investigation. The Government acknowledges that there is no “direct authority” for this claim, but suggests that support by analogy may be drawn from cases upholding the right of Title VII plaintiffs to obtain a preliminary injunction pending investigation of discrimination charges by the Equal Employment Opportunities Commission (EEOC). See, e. g., Garza v. Texas Educational Foundation, 565 F.2d 909 (5th Cir. 1978); Drew v. Liberty Mutual Insurance Co., 480 F.2d 69 (5th Cir. 1973).

We do not find the Title VII analogy persuasive. A plaintiff claiming employment discrimination in violation of Title VII is required to present his claim to the EEOC and afford that agency an opportunity to resolve his grievance before he may bring a civil action of his own in the district court. 42 U.S.C. § 2000e-5(f)(l) (1976). Title VI has no comparable requirement. There is a sound basis for permitting a Title VII plaintiff, in appropriate circumstances, to maintain the status quo pending an administrative proceeding that he is obliged to initiate as a condition of his suit. But no similar basis exists for the Title VI plaintiff who is entitled to sue to prevent discriminatory action without awaiting any administrative proceeding. See Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978); cf. Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). The Title VI plaintiff can secure a preliminary injunction against threatened discrimination by showing a probability of success on his Title VI claim and irreparable injury. He need not await an administrative inquiry, and he should not be entitled to secure a delay simply because an administrative inquiry has not been completed. If the pendency of that inquiry is justification for maintaining the status quo, such a claim must be pursued by the agency itself.

Conclusion

The choices forced upon city administrators by the competition for scarce tax dollars are difficult and frequently unpleasant. There is understandable cause for distress when fiscal realities require the closing of a municipal hospital, and that distress is compounded when the hospital selected for closing is one that serves primarily minority residents of an area woefully lacking in adequate medical resources. Obviously, every effort should be made to assure that the City’s available resources are wisely used to mitigate as far as possible the consequences of closing Sydenham Hospital. The City has in good faith planned for the hospital needs of those who now used Sydenham. Those plans, as we have recognized, do not absolutely assure complete provision of alternative service, though the general adequacy of alternatives has been sufficiently shown. We would expect the City to remain sensitive to the concerns expressed during this litigation and to explore all realistic proposals for assuring that those served by Sydenham Hospital have their hospital needs fully met. In that expectation, and because we agree with the District Court’s conclusion that entitlement to a preliminary injunction has not been shown, the ruling appealed from is affirmed.

1 . The position of the Government is somewhat elusive. Its amicus brief notes the District Court’s observation that “Sydenham patients could be served upon closure without significantly increased travel time,” 492 F.Supp. at 212, and declines to contend that this finding is clearly erroneous. The brief then maintains that the District Court concluded that the closing of Sydenham would have no adverse impact upon its users, despite the Court’s frank recognition that “closing Sydenham will have adverse consequences in some cases.” Without taking any position on the denial of the injunction, the brief urges that if the claimed finding of no adverse consequences is accepted, no further issues, including the appropriate Title VI standard, need be decided. Finally, the brief contends that if a Title VI standard is applied, an effects test is the appropriate standard.

With respect to the Boyd case, the United States initially took no position on appeal. In response to an inquiry during oral argument, the Government has urged that in some circumstances a private plaintiff may obtain an injunction pending an agency’s Title VI investigation, but that the denial of an injunction here was not an abuse of discretion if the alleged finding of no adverse impact is accepted.

2 . Though the District Court’s findings leave some room for uncertainty as to whether all of Sydenham’s patients will be cared for at other hospitals, the picture is not as bleak as the appellants contend. Their major point concerns Sydenham’s uninsured patients; appellants contend that the nearest municipal hospital, Harlem, lacks capacity for these patients and that the voluntary hospitals will not take them (unless they are truly emergency cases, as to whom state law requires admission, N.Y. Pub. Health Law § 2805-b (McKinney 1977)). Appellants estimate the number of Sydenham’s uninsured patients to be 23 to 28 per day. (Appellants’ Supp. Reply Br. 4). There is evidence in the record that Harlem Hospital has 434 medical/surgical beds and had an 84% occupancy rate in 1979, and could therefore absorb an additional 26 patients per day (6% of 434) and still not exceed the 90% occupancy rate alleged to be a realistic operating maximum. Moreover, there is other evidence in the record that Harlem has at least 484 medical/surgical beds, creating capacity for 29 additional patients per day (still observing the 90% occupancy limit), and that 10% of Sydenham’s patients reside in the Bronx and another 10% in Brooklyn, Queens, and lower Manhattan, areas more conveniently served by municipal hospitals other than Harlem. Thus, the record supports the District Court’s conclusion of altemate hospital care for Sydenham’s uninsured patients.

As for Sydenham’s insured patients, appellants question whether any of them will be admitted at nearby voluntary hospitals. Appellants point to the absence of specific assurances from these hospitals that they are willing to admit any additional Medicaid or Medicare patients. The record reveals that approximately one-half of the patients that three of these hospitals have been admitting have been covered by Medicaid or Medicare, and the proportion at a fourth hospital has been approximately three-fourths. This indicates that despite the lack of full reimbursement for these patients, the area’s voluntary hospitals admit them in significant numbers. There is thus little reason to doubt that the small number of Sydenham patients estimated by the City for absorption by the area’s voluntary hospitals will not be admitted.

In short, the record on the issue of alternative facilities for Sydenham patients may not be air-tight, but it is plainly substantial enough to show that the decision to select Sydenham for closing was made not only rationally, but with sufficient concern for the likely consequences.

3 . Though analogies from other titles of the Civil Rights Act of 1964 have their limits, it may be observed that an employment test with a disparate racial impact could not be justified in a Title VII suit simply because it selected some employees; there would have to be a showing that the particular test chosen by the employer was a useful selector of employees qualified for the particular job. See, e. g., Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971).

4 . During the pendency of this appeal, the parties have advised us of developments that offer substantial promise of mitigating the effects of the closing of Sydenham as an acute care hospital. Under an agreement between HHS, New York State, and New York City, entered into June 24, 1980, funds are to be made available for a five-year demonstration project, based at Metropolitan Hospital, to provide a comprehensive health care delivery program to Harlem residents. In connection with this project, Sy-. denham Hospital will be made available, at a $1 a year lease, to a community group as a treatment facility in the areas of alcohol and drug abuse.

5 . As previously indicated, HHS, throughout the time it has been a party to the Bryan and Boyd suits,- has never filed a cross-claim against the City defendants seeking any relief. Its support for the plaintiffs’ injunction was expressed by letter filed with the District Court only the day before the Court’s initial opinion denying the injunction was filed. And HHS has not appealed from the denial of the injunction.