# A. Rab Chowdhury, M.D. v. The Reading Hospital and Medical Center

> Court of Appeals for the Third Circuit · May 3, 1982 · 677 F.2d 317

URL: https://www.frixlaw.com/law-library/cases/9469164

## Case

- **Full name:** A. Rab CHOWDHURY, M.D., Appellant, v. the READING HOSPITAL AND MEDICAL CENTER
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** May 3, 1982
- **Citations:** 677 F.2d 317; 29 Empl. Prac. Dec. (CCH) 32,697; 1982 U.S. App. LEXIS 19579
- **Precedential status:** Published
- **Opinion:** Dissent by Aldisert
- **Judges:** Van Dusen, Aldisert, Van Dusen Garth
- **Cited by:** 43 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9469164

## How later opinions describe it (automated extraction)

- noting that under the administrative enforcement mechanism Congress provided in section 602 of Title VI, “an aggrieved individual may file a complaint with the funding agency but has no role in the investigation or adjudication, if any, of the complaint” (footnotes omitted)
- finding administrative exhaustion is not required prior to bringing a discrimination action under Title VI

## Opinion text

ALDISERT, Circuit Judge,
dissenting.
Although I agree with the majority that whether appellant is entitled under Title VI to assert a private cause of action for employment discrimination was not settled by NAACP v. Medical Center, Inc., 599 F.2d 1247 (3d Cir. 1979), see maj. op. at 320 n.9, and still is an open question, I would affirm the district court’s dismissal of the complaint for failure to exhaust the conciliation procedures provided by regulations of the Department of Health and Human Services.
I cannot agree that this case is controlled by either Medical Center or Cannon v. University of Chicago, 441 U.S. 677 , 99 S.Ct. 1946 , 60 L.Ed.2d 560 (1979), and I conclude that the rule announced by the majority conflicts with public policy as expressed by Congress and with sound principles of judicial administration, a conclusion shared by every reported ' decision of the district courts in this circuit. See Chowdhury v. Reading Hospital and Medical Center, 520 F.Supp. 134 (E.D.Pa.1981) (Troutman, J.); Santiago v. City of Philadelphia, 435 F.Supp. 136 (E.D.Pa.1977) (Lord, C. J.); NAACP v. Wilmington Medical Center, Inc., 426 F.Supp. 919 (D.Del.1977) (Latchum, C. J.), rev’d on other grounds, 599 F.2d 1247 (3d Cir. 1979); Johnson v. County of Chester, 413 F.Supp. 1299 (E.D.Pa.1976) (Luongo, J.). I believe that the four district judges in this circuit who have considered this issue are right, and that the majority in this case are wrong.
I.
The majority would follow bare dictum set forth in this court’s first Medical Center decision. That case required us to decide whether individuals in a protected class, intended beneficiaries of a federal funding program aiding the hospital, possessed a private cause of action under Title VI and its analog in the Rehabilitation Act, 29 U.S.C. § 794 . By the time that case reached this court, the plaintiffs had already exhausted their administrative remedies, as they were ordered to do by Chief Judge Latchum. See NAACP v. Wilmington Medical Center, 426 F.Supp. at 924 . Even though the question of exhaustion was moot, the Medical Center panel of this court stated at note 10 that “we hold that there exists a private cause of action under section 601 of Title VI which may be asserted without preliminary recourse to agency remedial procedures . . .,” 599 F.2d at 1250 n.10, and at note 6, that “recourse to the administrative remedy is not in any event a prerequisite to the assertion of the plaintiffs’ private cause of action,” id. at 1249 n.6, citing in both instances Cannon v. University of Chicago, 441 U.S. at 706 n.41, 99 S.Ct. at 1962 n.41.
*324 Gratuitous statements such as these bind neither the trial courts nor subsequent panels of this court. See United States Court of Appeals for the Third Circuit, Internal Operating Procedures, Ch. VIII C. They are classic obiter dictum: “statement[s] of law in the opinion which could not logically be a major premise of the selected facts of the decision.” 1 Dictum is the antithesis of precedent. As we have explained,
The essence of the common law doctrine of precedent or stare decisis is that the rule of the case creates a binding legal precept. The doctrine is so central to Anglo-American jurisprudence that it scarcely need be mentioned, let alone discussed at length. A judicial precedent attaches a specific legal consequence to a detailed set of facts in an adjudged case or judicial decision, which is then considered as furnishing the rule for the determination of a subsequent case involving identical or similar material facts and arising in the same court or a lower court in the judicial hierarchy.
Allegheny Gen. Hospital v. NLRB, 608 F.2d 965 , 969-70 (3d Cir. 1979). See also Addonizio v. United States, 573 F.2d 147, 151 (3d Cir. 1978), rev’d on other grounds, 442 U.S. 178 , 99 S.Ct. 2235 , 60 L.Ed.2d 805 (1979); Institute for Scientific Information, Inc. v. United States Postal Service, 555 F.2d 128, 130 (3d Cir. 1977).
Litigants should not totally disregard dictum, of course, because it indicates the direction or framework of an opinion writer’s thought, and thereby serves as a tool for predicting what the court might do when the issue is properly presented. But dictum, unlike holding, does not have the strength of a decision “forged from actual experience by the hammer and anvil of litigation,” 2 a fact to be considered when assessing its utility in the context of an actual controversy. Similarly, appellate courts must be cautious to avoid promulgating unnecessarily broad rules of law. As Lord Atkin observed,
[I]t is of particular importance to guard against the danger of stating propositions of law in wider terms than is necessary, lest essential factors be omitted in the wider survey and the inherent adaptability of ... law be unduly restricted. For this reason it is very necessary in considering reported cases in the law . .. that the actual decision alone should carry authority, proper weight, of course, being given to the dicta of the judges.
Donoghue v. Stevenson [1932] A.C. 562, 584. The common law tradition is one that depends for its stability on the gradual, case-by-case method of developing rules and from the rules, broader legal precepts. Although I can indulge a litigant for relying on dictum when he does not have an otherwise persuasive argument, a court that accords dictum controlling weight drains that tradition of its strength and undermines its legitimacy.
Applying the foregoing precepts to the Medical Center opinion leads inexorably to the conclusion that it does not control this case. It is not a precedent for the rule that a doctor who has been denied courtesy staff privileges in a hospital receiving federal financial assistance may sue the hospital in federal court without exhausting available Title VI administrative remedies; at most, Medical Center holds that intended beneficiaries of a federal program who have exhausted their administrative remedies have a private cause of action for discrimination under Title VI and its Rehabilitation Act analog. Statements in the majority opinion in the instant case indicating that Medical Center settled both issues are simply incorrect.
Nor can I conclude that footnote 41 of Cannon v. University of Chicago, the putative precedent on which the majority and the Medical Center dictum rely, is of greater legitimacy. I concede that Cannon, like Medical Center, includes language which, considered in vacuo, supports the majority’s assertion that non-exhaustion in this employment discrimination case is a “sound” *325 rule. See maj. op. at 320-321. But there, as in Medical Center, the question of exhaustion was not before the court. Although Justice Stevens’ opinion for the court noted that plaintiff had commenced but not exhausted available administrative procedures, 441 U.S. at 680 n.2, 99 S.Ct. at 1949 n.2, the narrow question presented for decision was whether an applicant excluded from a federally funded educational program solely because of her sex has a cause of action under Title IX, 20 U.S.C. § 1681 . 3 The narrow scope of that decision was underscored by the court of appeals’ subsequent affirmance of the district court’s second order dismissing the case for failure to state a claim, this time because it was evident that the plaintiff could not prove discriminatory intent. Cannon v. University of Chicago, 648 F.2d 1104 (7th Cir.), cert. denied, - U.S. -, 102 S.Ct. 981 , 71 L.Ed.2d 117 (1981). See Cannon, 441 U.S. at 680 n.2, 99 S.Ct. at 1949 n.2. Whether exhaustion should be a prerequisite to suit, like the question of the standard of proof, was never decided.
II.
Moreover, Cannon arose in a materially different factual context. There the plaintiff was a medical school applicant alleging that she was denied acceptance at the defendant schools because of her sex. Title IX, on which she premised her cause of action, deals explicitly with admissions to graduate programs receiving federal funds, 20 U.S.C. § 1681 , and thus the statute explicitly extended its protection to her and to the interest she alleged the grantees had infringed. In the present case, it is yet to be determined if Dr. Chowdhury is an intended beneficiary of either Title VI or the federal financial assistance received by the hospital. As the majority observe:
We note that other courts that have addressed the question of whether 601 provides a cause of action for employment discrimination have required proof that the primary purpose of the funding was to provide employment.
Maj. op. at 320 n.9. Dr. Chowdhury would be in an entirely different position were he a patient alleging denial of services because of his race; instead, he is seeking employment as a member of the medical staff. Therefore, unlike Cannon , which implicated an express Congressional policy to protect applicants for admission to federally assisted graduate programs from sex discrimination, this case requires consideration of Congress’ policy regarding claims of employment discrimination. Congress has expressly prohibited federal agencies and departments from interfering with employment practices under the guise of Title VI “except where a primary objective of the Federal financial assistance is to provide employment.” 42 U.S.C. § 2000d-3. Every court of appeals that has considered the question has agreed that this section and its analogs bar private actions for employment discrimination as well. See, e.g., Ass’n Against Discrimination v. City of Bridgeport, 647 F.2d 256 , 275 (2d Cir. 1981), cert. denied, - U.S. -, 102 S.Ct. 1611 , 71 L.Ed.2d 847 (1982); Carmi v. Metropolitan St. Louis Sewer Dist., 620 F.2d 672 (8th Cir.), cert. denied, 449 U.S. 892 , 101 S.Ct. 249 , 66 L.Ed.2d 117 (1980) (Rehabilitation Act); Trageser v. Libbie Rehabilitation Center Inc., 590 F.2d 87 (4th Cir. 1978), cert. denied, 442 U.S. 947 , 99 S.Ct. 2895 , 61 L.Ed.2d 318 (1979) (Rehabilitation Act). 4
*326 I agree with these holdings and would extend them to denial of courtesy staff privileges a fortiori when, as in this case, the plaintiff has not alleged that providing staff privileges is relevant to the objective of the funding, let alone whether it is the primary objective of the federal assistance. Moreover, Congress has articulated clearly a policy favoring administrative conciliation over immediate private civil litigation in discrimination cases touching employment relationships. EEOC v. E. I. duPont de Nemours & Co., 516 F.2d 1297 (3d Cir. 1975); Fekete v. U. S. Steel Corp., 424 F.2d 331 (3d Cir. 1970). See Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398 (3d Cir.), cert. denied, 429 U.S. 1041 , 97 S.Ct. 741 , 50 L.Ed.2d 753 (1976). As this court has noted, the preliminary steps of a Title VII claim “are essential parts of the statutory plan, designed to correct discrimination through administrative conciliation and persuasion if possible, rather than by formal court action.” Id. I simply cannot accept as consistent with the framework of discrimination law that a plaintiff may deliberately bypass available administrative remedies when claiming employment discrimination under Title VI, while he is required by the same facts to exhaust those procedures under Title VIL I am confident that Congress did not intend to allow Dr. Chowdhury to do under Title VI what he is barred from doing under Title VII.
I reject the majority’s assertion that Dr. Chowdhury does not possess a meaningful remedy under 45 C.F.R. § 80.7 . Indeed, congruent with the EEOC emphasis on administrative conciliation and persuasion, HHS Title VI regulations provide for institution of a complaint by any person who believes that he has been subjected to discrimination “not later than 180 days from the date of the illegal discrimination.” 45 C.F.R. 80.7(b). 5 Those regulations specifically provide for informal resolution of the dispute whenever possible. Id. at 80 .7(d). 6 Although the complainant is not expressly given a right to participate in the conciliation procedures, such a right does not exist under Title VII either. See 42 U.S.C. § 2000e-5. Rather, the emphasis in both schema is on informal resolution of disputes, with adversarial procedures regarded as a last resort.
My view in this case is consistent with what I have previously expressed regarding the relationship between employment discrimination cases brought under Title VII and those brought under 42 U.S.C. § 1981 :
I believe that there will be more predictability and reckonability to the law of employment discrimination, more understanding and societal acceptability by the lay public, including putative employees, employees, and employers alike, if there is consistency in the judicial interpretation of the two statutes [implicating employment discrimination].
Croker v. Boeing Co., 662 F.2d 975, 1002 (3d Cir. 1981) (in banc) (Aldisert, J., dissenting in part).
In their rush to let Dr. Chowdhury into court, the majority have unnecessarily *327 opened the doors to premature, and often needless, litigation. It is one thing for federal judges to complain that Congress has increased the federal jurisdiction unnecessarily, and that our caseload has increased astronomically, 7 but it is quite another for that load to increase by means of self-inflicted wounds. By directing the plaintiff to ignore the opportunity for administrative resolution of this dispute, the majority are doing just that.
III.
For all the foregoing reasons I dissent, and would affirm the judgment of the district court.
. R. Cross, Precedent in English Law 80 (2d ed. 1968).
. Stone, The Common Law in the United States, 50 Harv.L.Rev. 4, 7 (1936).
. Footnote 41 of Cannon was written to support the discussion of whether a private remedy would frustrate the legislative scheme of Title IX, the third factor in the familiar test articulated in Cort v. Ash, 422 U.S. 66, 78 , 95 S.Ct. 2080, 2087 , 45 L.Ed.2d 26 (1975), for inferring private remedies from statutes not explicitly providing them. The court was not required to address the exhaustion question to conclude that a private remedy would not be inconsistent with Title VI, although it chose to do so in the footnotes. In text, the court simply noted that the statutory enforcement scheme would not be impeded, and could be assisted by a private remedy. I find no inconsistency, therefore, in concluding that a private remedy would not frustrate the legislative scheme, but that private action should await administrative conciliation efforts, the preferred means of settling disputes.
. For the same reasons I do not find persuasive either Pushkin v. Regents of the Univ. of Colorado, 658 F.2d 1372 (10th Cir. 1981), or Camen *326 isch v. University of Texas, 616 F.2d 127 (5th Cir. 1980), vacated on other grounds, 451 U.S. 390 , 101 S.Ct. 1830 , 68 L.Ed.2d 175 (1981). Both cases were brought under the Rehabilitation Act, 29 U.S.C. § 794 ; Pushkin was brought by an applicant to a graduate psychiatric program and Camenisch was brought by a deaf graduate student seeking to have an interpreter appointed at the university’s expense.
. (b) Complaints. Any person who believes himself or any specific class of individuals to be subjected to discrimination prohibited by this part may by himself or by a representative file with the responsible Department official or his designee a written complaint. A complaint must be filed not later than 180 days from the date of the alleged discrimination, unless the time for filing is extended by the responsible Department official or his designee.
. (d) Resolution of matters. (1) If an investigation pursuant to paragraph (c) of this section indicates a failure to comply with this part, the responsible Department official or his designee will so inform the recipient and the matter will be resolved by informal means whenever possible. If it has been determined that the matter cannot be resolved by informal means, action will be taken as provided for in § 80.8.
(2) If an investigation does not warrant action pursuant to subparagraph (1) of this paragraph the responsible Department official or his designee will so inform the recipient and the complainant, if any, in writing.
. In the year I joined the court, 1968, there were 7,638 cases filed in the district courts in this judicial circuit, and 658 appeals to this court. Last year there were 15,041 and 2,013 filings respectively. See Annual Reports of Director, Administrative Office of U.S. Courts, tables C3, B1 (1968 & 1981).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9469164. Public record. Not legal advice.