throbber
Case 1:20-cv-09144-VM Document 47 Filed 12/11/20 Page 1 of 32
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`(cid:39)(cid:72)(cid:70)(cid:72)(cid:80)(cid:69)(cid:72)(cid:85)(cid:3)(cid:20)(cid:20)(cid:15)(cid:3)(cid:21)(cid:19)(cid:21)(cid:19)
`
` 20 Civ. 9144 (VM)
`DECISION AND ORDER
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`-----------------------------------X
`CONEY ISLAND PREP, et al.,
`
`:
`:
`Plaintiffs,
`:
`:
`
`
`
`:
`- against -
`:
`UNITED STATES DEPARTMENT OF HEALTH :
`:
`AND HUMAN SERVICES, et al.,
`:
`Defendants.
`:
`-----------------------------------X
`VICTOR MARRERO, United States District Judge.
`Plaintiffs Coney Island Prep (“CIP”), Leslie-Bernard
`Joseph (“Joseph”), Housing Works, Inc. (“Housing Works”),
`Charles King (“King”), New York City Councilmember Mark
`Levine (“Levine”), and Alexandra Greenberg (“Greenberg”)
`(collectively, “Plaintiffs”) brought this action against
`the United States Department of Health and Human Services
`(“HHS”), Secretary of HHS Alex Azar (“Azar” or the
`“Secretary”), Assistant Secretary of HHS Robert Kadlec
`(“Kadlec”), the Centers for Disease Control and Prevention
`(“CDC”), and Director of the CDC Robert R. Redfield
`(“Redfield”)
`(collectively,
`“Defendants”
`or
`the
`“Government”). Plaintiffs allege that Defendants failed to
`abide by certain of their statutory obligations to provide
`reports or allow public participation opportunities related
`to public health issues such as the pandemic response. (See
`1
`
`

`

`Case 1:20-cv-09144-VM Document 47 Filed 12/11/20 Page 2 of 32
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`
`
`Complaint, Dkt. No. 1 ¶¶ 6-8.) Plaintiffs also allege that
`Defendants acted in an arbitrary and capricious manner in
`violation of the Administrative Procedure Act (“APA”) by
`switching the database used for reporting daily COVID-19
`hospitalization statistics. (See id. ¶¶ 140-48.)
`
`Plaintiffs moved for a Preliminary Injunction
`requiring Defendants to provide the outstanding reports and
`participation opportunities and return to the previously
`used database for COVID-19 hospitalization statistics. (See
`Motion, Dkt No. 6; Plaintiffs’ Memorandum of Law (“Pls.
`Mem.”), Dkt. No. 7) Defendants opposed the motion. (See
`Opposition, Dkt. No. 33) The Court subsequently held a
`telephone conference on December 2, 2020, during which it
`heard the parties’ arguments as to whether Plaintiffs had
`demonstrated irreparable harm and a likelihood of success
`on the merits, among other issues such as standing. (See
`Docket Minute Entry Dated December 2, 2020).
`
`For the reasons that follow, the Court DENIES
`Plaintiffs’ motion for a preliminary injunction.
`I. BACKGROUND1
`PLAINTIFFS’ ALLEGATIONS
`
`A.
`
`
`1 The factual background herein derives from the Complaint, as well as
`from the exhibits filed in connection with Plaintiffs’ Memorandum of
`Law and Defendants’ Opposition. Except when specifically quoted or
`referenced, no further citation to these sources will be made.
`
`
`

`

`Case 1:20-cv-09144-VM Document 47 Filed 12/11/20 Page 3 of 32
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`
`
`Plaintiff CIP is a public charter school in Brooklyn,
`New York that serves a diverse community of students and
`families from the Coney Island Area. CIP’s Chief Executive
`Officer (“CEO”) is plaintiff Joseph. Plaintiff Housing
`Works is a New York City nonprofit that addresses
`homelessness,
`HIV/AIDS,
`and
`“other
`chronic
`health
`conditions.” (Complaint ¶ 18.) Housing Works operates
`health clinics, supportive housing centers, career training
`programs, legal services, and profitable thrift stores, a
`bookshop, and a café. Housing Works has partnered with New
`York City agencies to offer free COVID-19 testing and to
`operate housing centers to isolate and quarantine infected
`or exposed persons. Plaintiff King is the CEO and founder
`of Housing Works. Plaintiff Levine is a New York City
`Councilmember representing the 7th District in Northern
`Manhattan and serving as the Chair of the Council Committee
`on Health. Plaintiff Greenberg is a medical student at SUNY
`Downstate College of Medicine and “a public health
`researcher and advocate.” (Id. ¶ 21.)
`Plaintiffs bring two claims under the APA. First,
`Plaintiffs argue that Defendants have failed to take
`legally required action, in violation of Section 706(1) of
`the APA, 5 U.S.C. § 706(1). Second, Plaintiffs argue that
`3
`
`
`
`

`

`Case 1:20-cv-09144-VM Document 47 Filed 12/11/20 Page 4 of 32
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`
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`Defendants acted arbitrarily and capriciously in switching
`the databases holding COVID-19 hospitalization data, in
`violation of Section 706(2) of the APA, id. § 706(2). Based
`on the factual allegations underpinning these claims,
`Plaintiffs also seek relief under the All Writs Act, 28
`U.S.C. § 1651(a), and the Mandamus Act, id. § 1361.
`More specifically with respect to their Section 706(1)
`claim, Plaintiffs allege that Defendants failed to timely
`comply with certain statutory obligations that fall under
`three umbrella categories: (1) duties pertaining to
`biosurveillance efforts; (2) reporting obligations; and (3)
`obligations to allow public participation in formulating
`policy responses relating to various public health issues.
`With respect to Defendants’ biosurveillance duties,
`Plaintiffs allege that Defendants have failed to perform
`the following required tasks: (1) promulgate technical and
`reporting standards to coordinate the gathering of public
`health data pursuant to 42 U.S.C. § 247d-4(b)(2)-(3) with
`notice and comment; (2) publish these technical and
`reporting standards; (3) complete a Biological Threat
`Detection Report as required by the Pandemic and All-
`Hazards Preparedness and Advancing Innovation Act of 2019
`(the “Pandemic Preparedness Act”), Pub. L. No. 116-22 §
`
`
`
`

`

`Case 1:20-cv-09144-VM Document 47 Filed 12/11/20 Page 5 of 32
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`
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`205, 133 Stat. 905, 924-25; and (4) convene a public
`meeting for purposes of discussing and providing input on
`the
`potential
`goals,
`functions,
`and
`uses
`of
`a
`biosurveillance network pursuant to 42 U.S.C. § 247d-
`4(c)(5)(B). (Complaint ¶ 121.)
`With respect to reporting obligations, Plaintiffs
`allege that Defendants have failed to issue reports (1) on
`the medical countermeasures budget, as required by 42
`U.S.C. § 300hh-10(b)(7); (2) on the medical countermeasures
`plan, as required by 42 U.S.C. § 300hh-10(d); (3) from
`state and local agencies receiving federal funding for
`public health security and surge capacity, as required by
`42 U.S.C. §§ 247d-3a(i)-(j), 247d-3b(i); (4) regarding
`biological
`agents,
`toxins,
`and
`related
`medical
`countermeasures, as required by 42 U.S.C. § 262a(k); (5) on
`a Threat-Based Review of the Strategic National Stockpile
`(“SNS”) of Countermeasures for use in the event of a public
`health emergency, as required by 42 U.S.C. §§ 247d-
`6b(c)(2)(C), (3); (6) on national health resources and
`statistics, as required by 42 U.S.C. § 242m(a)(1)-(2); (7)
`of a national disease prevention data profile, as required
`by 42 U.S.C. § 242p; (8) on disparities by race and
`ethnicity, as required by 42 U.S.C. § 299a-1(a)(6); (9)
`5
`
`
`
`

`

`Case 1:20-cv-09144-VM Document 47 Filed 12/11/20 Page 6 of 32
`
`
`
`from the Office of Minority Health, as required by 42
`U.S.C. § 300u-6(f); (10) on international cooperation in
`the research and development of vaccines and other
`qualified pandemic or epidemic countermeasures, as required
`by the Pandemic Preparedness Act, 133 Stat. at 959; and
`(11) on maintaining an adequate national blood supply for
`emergency
`response,
`as
`required
`by
`the
`Pandemic
`Preparedness Act, 133 Stat. at 929.
`With respect to public participation opportunities,
`Plaintiffs allege that Defendants have failed to (1)
`solicit input from experts to aid executive medical
`countermeasures planning pursuant to 42 U.S.C. § 300hh-
`10(d)(2)(H), and (2) to convene a meeting on genomic
`engineering for health security and public health emergency
`countermeasures development pursuant to the Pandemic
`Preparedness Act, 133 Stat. at 958-59.
`As to Plaintiffs’ Section 706(2) claim, Plaintiffs
`allege that Defendants have shifted the reporting of daily
`COVID-19 hospitalization statistics from the CDC’s publicly
`available National Healthcare Safety Network (“NHSN”) “to a
`privately managed HHS Protect database, denying public
`access to such information and adding further difficulty to
`state and local officials, health researchers, and the
`
`
`
`

`

`Case 1:20-cv-09144-VM Document 47 Filed 12/11/20 Page 7 of 32
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`
`
`wider public who rely on transparent data and disclosures.”
`(Complaint ¶ 140.)
`Plaintiffs claim that they have been injured by
`Defendants’ conduct. In the Complaint, Plaintiffs state
`that they
`have been denied vital information with respect
`to the Covid-19 pandemic -- its spread and
`prevalence
`in
`the
`community,
`the
`comprehensiveness of the data collected and made
`available, and the nation’s capacity and efforts
`to respond effectively -- that is critical to
`their ability to conduct themselves safely and to
`protect their members and communities from
`adverse outcomes during this public health
`crisis. Plaintiffs have also been injured in that
`they have been denied procedural opportunities to
`participate in and give notice and comment on
`vital aspects of the government’s pandemic
`preparations and response capacity. Absent such
`opportunities, Plaintiffs -- all of whom play
`vital roles in the health and safety of their
`communities -- have lost the opportunity to
`contribute their needs and knowledge to the
`regulatory process. Such injuries have also
`forced Plaintiffs to divert resources that they
`would have dedicated otherwise.
`
`(Complaint ¶¶ 131-33). Plaintiffs’ Memorandum of Law
`reiterates that “[t]he lack of information -- about, among
`other things, the development of ‘biosurveillance’
`capabilities to track the pandemic in ‘near real-time,’
`existing public health emergency capacities, Americans’
`underlying health and health resources, and the need or
`ability to protect those most vulnerable to adverse
`7
`
`
`
`

`

`Case 1:20-cv-09144-VM Document 47 Filed 12/11/20 Page 8 of 32
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`
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`outcomes -- cripples Plaintiffs’ capacity to conduct
`themselves and their organizations safely and effectively
`during the pandemic.” (Pls. Mem. at 11.)
`
`As to Defendants’ alleged failure to convene the
`required
`meetings
`and
`notice-and-comment
`process,
`Plaintiffs argue that they are injured because “Plaintiffs
`are entitled to participate in the mandated public health
`emergency planning and would bring valuable insight to the
`discussions.” (Id. at 14.) Plaintiffs also argue that
`Defendants’ disregard for these opportunities has delayed
`biosurveillance
`and
`public
`health
`measures,
`which
`ultimately harms Plaintiffs, and “places Plaintiffs at risk
`of being subject to or harmed by uninformed, let alone
`unlawful, government action.” (Id. at 14-15.)
`
`Finally, Plaintiffs claim that Defendants’ conduct
`causes CIP and Housing Works harm “by causing them to
`divert resources from prior organizational goals to other
`efforts, such as to protect and inform their communities,
`provide care for sick or at-risk community members, or
`devise alternative procedures to confront the threat of
`Covid-19.” (Id. at 16.)
`B.
`DEFENDANTS’ ARGUMENTS
`Defendants dispute Plaintiffs’ claims that they have
`
`
`
`

`

`Case 1:20-cv-09144-VM Document 47 Filed 12/11/20 Page 9 of 32
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`
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`failed to meet their relevant statutory duties. As an
`initial point, Defendants state that the creation and
`implementation of a biosurveillance program is not
`statutorily due until September 2023. See 42 U.S.C. § 247d-
`4(g).
`Defendants further represent that they either have
`completed or are near completion of many of the
`requirements. For instance, Defendants have partially met
`the requirement to adopt technical and reporting standards,
`a process which Defendants contend does not require notice
`and comment. In addition, Defendants have solicited public
`comments on the report relating to the national blood
`supply and are in the process of incorporating that
`feedback; they estimate completing the report by January
`2021. The relevant agency official in charge of submitting
`an annual report on racial disparities in healthcare is
`expected to submit this year’s report by the end of this
`year. Defendants further represent that HHS has prepared
`the report on international cooperation and expects to
`finalize and publish the report by the end of this year.
`Similarly, HHS’s report on biological agents, toxins, and
`related countermeasures has been prepared, and HHS plans to
`submit the report by the end of this year.
`9
`
`
`
`

`

`Case 1:20-cv-09144-VM Document 47 Filed 12/11/20 Page 10 of 32
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`
`
`As to participation opportunities, Defendants convened
`an informal meeting in July 2020 regarding biosurveillance
`activities and led a meeting in October 2019 on bioeconomy
`leadership in connection with the requirement to hold
`meetings on genomic engineering technologies.
`Defendants acknowledge that some publications are
`delayed. For example, the annual Threat-Based Review of the
`SNS for 2020 is still awaiting reasonable deliberation and
`review, and it will be submitted to Congress by the end of
`the first quarter in 2021. Similarly, annual reports on
`national health resources and statistics are in the final
`stages of being finalized and are expected to be published
`shortly soon. The 2017 Report from the Office of Minority
`Health is under final review, the 2019 Report is under
`development, and development of the 2021 Report will begin
`by the end of the year.
`Defendants also admit that they have so far failed to
`draft a Biological Threat Detection Report, but plan to do
`so by January 2021. Defendants also have failed to submit
`this year’s budget plan, although they represent that past
`reports are available.
`As to Plaintiffs’ alleged harm, Defendants argue that
`Plaintiffs have not sufficiently alleged any injury.
`
`
`
`

`

`Case 1:20-cv-09144-VM Document 47 Filed 12/11/20 Page 11 of 32
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`
`
`Defendants explain that the relevant statutory provisions
`require only that Defendants provide information to
`Congress, not to Plaintiffs or the general public. Though
`Defendants acknowledge that some provisions do require
`Defendants make information available to the general
`public, Defendants state that “Plaintiffs have entirely
`failed to explain how any delay in the provision of each of
`these reports to the public led to a concrete,
`particularized or imminent injury,” especially in light of
`the fact that none of the outstanding reports are directly
`related to COVID-19. (Opposition at 24-25.) Defendants also
`contend that Plaintiffs have failed to articulate how any
`specific report would assist Plaintiffs in responding to
`the pandemic.
`
`II. LEGAL STANDARD
`To obtain a preliminary injunction, a plaintiff must
`show: “(1) irreparable harm; (2) either a likelihood of
`success on the merits or both serious questions on the
`merits and a balance of hardships decidedly favoring the
`moving party; and (3) that [the requested relief] is in the
`public interest.” N. Am. Soccer League, LLC v. U.S. Soccer
`Fed’n, 883 F.3d 32, 37 (2d Cir. 2018). In order to receive
`a mandatory injunction compelling action, a plaintiff must
`11
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`

`

`Case 1:20-cv-09144-VM Document 47 Filed 12/11/20 Page 12 of 32
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`
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`meet a heightened standard and make “a strong showing of
`irreparable harm” as well as a “clear or substantial
`likelihood of success on the merits.” Yang v. Kosinki, 960
`F.3d 119, 127-28 (2d Cir. 2020) (citation omitted).
`The showing of irreparable harm “is the single most
`important requisite.” LSSi Data Corp. v. Time Warner Cable,
`Inc., 892 F. Supp. 2d 489, 501 (S.D.N.Y. 2012) (internal
`quotation marks and citation omitted). To demonstrate
`irreparable harm, the movant must show “an injury that is
`neither remote nor speculative, but actual and imminent.”
`Rodriguez v. DeBuono, 175 F.3d 227, 234 (2d Cir. 1999)
`(internal quotation marks and citation omitted). The movant
`must further show that the injury “cannot be remedied by an
`award of monetary damages.” Id.
`“When considering a motion for a preliminary
`injunction, unlike a motion to dismiss, the Court need not
`accept
`as
`true
`the
`well-pleaded
`allegations
`in
`Plaintiff[’s] complaint.” Victorio v. Sammy's Fishbox
`Realty Co., No. 14 Civ. 8678, 2014 WL 7180220, at *4
`(S.D.N.Y. Dec. 12, 2014) (citing Incantalupo v. Lawrence
`Union Free Sch. Dist. No. 15, 652 F. Supp. 2d 314, 317 n.1
`(E.D.N.Y. 2009)).
`
`III. DISCUSSION
`
`
`
`

`

`Case 1:20-cv-09144-VM Document 47 Filed 12/11/20 Page 13 of 32
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`
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`The Court is not persuaded that Plaintiffs have met
`their burden of making a strong showing of irreparable
`harm. Plaintiffs allege three types of harm: (1) harm
`stemming from deprivation of information; (2) harm stemming
`from procedural violations; and (3) organizational harm to
`CIP and Housing Works. For the reasons set forth below, the
`Court concludes that Plaintiffs have failed to sufficiently
`allege irreparable harm. Accordingly, although Defendants
`raise a number of arguments as to why Plaintiffs are not
`entitled to a preliminary injunction -- including because
`they lack standing, have not shown a likelihood of success
`on the merits, and have not shown that the public interest
`favors the relief requested -- the Court need not, and does
`not, reach these arguments.
`A.
`INFORMATIONAL INJURY
`Nondisclosure of information can support a finding of
`irreparable harm when a plaintiff shows that “absent
`preliminary injunctive relief,” the lack of information
`“substantially impair[s] [the plaintiff] in a manner that
`is both ‘certain and great.’” Lawyers’ Comm. for Civil
`Rights Under Law v. Presidential Advisory Comm’n, 265 F.
`Supp. 3d 54, 70 (D.D.C. 2017); see also Seife v. U.S. Dep’t
`of Health & Human Servs., 440 F. Supp. 3d 254, 272
`13
`
`
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`

`

`Case 1:20-cv-09144-VM Document 47 Filed 12/11/20 Page 14 of 32
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`
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`(S.D.N.Y. 2020) (“[A] plaintiff suffers a sufficiently
`concrete and particularized injury to confer Article III
`standing when [1] she is denied access to information that,
`in the plaintiff’s view, must be disclosed pursuant to a
`statute and [2] there is no reason to doubt that the
`information would help the plaintiff within the meaning of
`the statute.”) (internal quotation marks and citation
`omitted).
`Even assuming that Plaintiffs are entitled to the
`information at issue,2 Plaintiffs have not sufficiently
`alleged an irreparable informational injury. Plaintiffs
`cannot show that the lack of this information causes them a
`“certain and great impairment,” and Plaintiffs have also
`failed to show that this information would undoubtedly be
`helpful to Plaintiffs. This is especially true in light of
`the fact that the vast majority of information at issue
`does not pertain directly to the COVID-19 pandemic.3
`
`
`2 It is not certain that Plaintiffs are entitled to much of the
`information at issue, as many of the statutory provisions relied on
`only require the Secretary to provide reports or other information to
`Congress. See, e.g., 42 U.S.C. § 242m(a)(1)-(2); id. § 242p; Section
`205(c), 133 Stat. at 924-25. However, the Court does not need reach
`this question.
`3 Plaintiffs’ counsel during oral argument seemed to acknowledge that
`the reports are not directly relevant to COVID-19. Plaintiffs’ counsel
`primarily argued that the reports are relevant to general pandemic
`preparedness, so “[i]nformation on the government’s preparation and
`capacity to respond to all public health emergencies, including the
`present pandemic, would aid plaintiffs’ advocacy efforts and avoid
`
`
`

`

`Case 1:20-cv-09144-VM Document 47 Filed 12/11/20 Page 15 of 32
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`
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`1. Withheld Reports and Data
`Plaintiffs’ allegations primarily consist of broad
`assertions as to the usefulness of information generally,
`without specifying what information in the reports at issue
`would be useful or how that information would help them.
`For instance, the Complaint states that Plaintiffs have
`been denied “vital information with respect to the Covid-19
`pandemic” such as “its spread and prevalence in the
`community, the comprehensiveness of the data collected and
`made available, and the nation’s capacity and efforts to
`respond effectively” -- information “that is critical to
`their ability to conduct themselves safely and to protect
`their members and communities from adverse outcomes during
`this public health crisis.” (Complaint ¶ 131.) But while
`Plaintiffs allege that the information is “critical,”
`Plaintiffs have failed to explain why the information is
`critical, how it would actually benefit them, or if the
`information is not otherwise publicly available.4
`Similarly, Plaintiffs’ Memorandum of Law states that
`
`
`duplication at the community level.” (Oral Argument Tr., Dkt. No. 45,
`at 8:10-13.) This argument is discussed below.
`4 The Court takes judicial notice of the fact that there is a
`significant amount of information on COVID-19, including information on
`its spread and prevalence, already available. See, e.g., COVID-19:
`Data,
`NYC
`Health,
`https://www1.nyc.gov/site/doh/covid/covid-19-
`data.page (last visited Dec. 11, 2020). Plaintiffs have not adequately
`15
`
`
`

`

`Case 1:20-cv-09144-VM Document 47 Filed 12/11/20 Page 16 of 32
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`
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`the lack of information “cripples” their efforts to conduct
`themselves safely during the pandemic without a detailed
`explanation as to how. Instead, Plaintiffs make conclusory
`statements. For example, Plaintiffs state that the denial
`of information “inhibits [CIP] from assessing Covid-19’s
`threat to its community members, implementing policies to
`mitigate Covid-19 transmission, providing in-person and
`remote programs to fulfill its educational mission,
`evaluating programs and interventions by other schools and
`in other jurisdictions, and advocating on behalf of itself
`and its community for improved public health interventions
`and educational policies.” (Pls. Mem. at 11.)
`But Plaintiffs have failed to demonstrate how the
`information they seek would in fact help CIP in achieving
`these goals. As a result, it would require speculation on
`the part of the Court to conclude that the information
`would help Plaintiffs, and a further jump to conclude that
`they would suffer a certain and great harm in its absence.
`Had Plaintiffs instead provided more specific details, such
`as by stating that CIP institutes remote learning based on
`a certain set of data like available hospital capacity or
`COVID-19 prevalence, and adduced enough evidence to support
`
`
`described what data, beyond what is publicly available, is needed or
`
`
`

`

`Case 1:20-cv-09144-VM Document 47 Filed 12/11/20 Page 17 of 32
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`
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`a finding that such data is contained in the withheld
`reports, Plaintiffs may have met their burden of making a
`strong showing of irreparable harm. But the record is
`devoid of allegations such as these.
`Likewise, Plaintiffs state that Housing Works “depends
`on the information the Administration has denied to
`determine protocols for day-to-day operations to ‘direct
`isolation,
`treatment,
`and
`preventative
`care’
`--
`particularly with respect to the communities of color it
`serves -- to ‘tailor services to address inequities,’ and
`to develop ‘concrete plans to improve the health of
`communities of color.’” (Id.) But Plaintiffs do not explain
`what specific withheld information is needed or how that
`information would in fact assist Housing Works in the
`manner described.
`Furthermore, Plaintiffs assert that the lack of
`information to make public health decisions has been a
`challenge for policymakers like Levine and that “the lack
`of transparent national data restricts Levine from
`implementing better policies to prevent transmission from
`out-of-state travelers as well as evaluate municipal
`interventions in other jurisdictions.” (Id.) Plaintiffs
`
`why.
`
`
`17
`
`
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`

`Case 1:20-cv-09144-VM Document 47 Filed 12/11/20 Page 18 of 32
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`
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`also assert that the lack of data about COVID-19 “has
`hindered Plaintiff Greenberg’s efforts to advocate for
`health equity and better policy in response to Covid-19.”
`(Id. at 12.) But these allegations are even less detailed
`than those provided for CIP and Housing Works. At best,
`these allegations establish that Levine and Greenberg lack
`information generally. They do not establish that Levine
`and Greenberg would be assisted by the data allegedly
`withheld. This deficiency is particularly glaring in light
`of the fact that none of the allegedly withheld reports
`directly pertains to the COVID-19 pandemic.
`Plaintiffs’ declarations do a somewhat better job of
`detailing the need for information, but they too are
`insufficient for various reasons. For example, Plaintiffs
`allege the need for information that is not part of the
`withheld reports. For instance, Joseph, King, and Levine
`all discuss a need for a biosurveillance network and near
`real-time data on COVID-19 in order to tailor safety
`protocols or policy. (See Joseph Decl., Dkt. No. 9, ¶ 28;
`Levine Decl., Dkt. No. 11, ¶ 13.) But a biosurveillance
`network that will track such data is not statutorily
`required until 2023. None of the declarations address the
`usefulness of the other biosurveillance-related information
`
`
`
`

`

`Case 1:20-cv-09144-VM Document 47 Filed 12/11/20 Page 19 of 32
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`for which the statutory deadlines have passed, such as the
`Biological Threat Detection Report and the technical and
`reporting standards. According to the Pandemic Preparedness
`Act, that information could inform Plaintiffs about, among
`other things, “technological, operational, and programmatic
`successes and failures of domestic detection programs
`supported by Federal departments and agencies for
`intentionally
`introduced
`or
`accidentally
`released
`biological threat agents and naturally occurring infectious
`diseases,” 133 Stat. at 924 (detailing the Biological
`Threat Detection Report), but Plaintiffs have not
`established how their awareness of that information would
`assist them in tailoring their COVID-19 response.
`Similarly, Levine and Joseph both discussed the
`usefulness of seeing how other schools and day care
`facilities are handling COVID-19. (Levine Decl. ¶ 24;
`Joseph Decl. ¶ 37.) But there is no evidence that any of
`the relevant reports would contain this information
`relating to COVID-19 or schools, and neither Levine nor
`Joseph identify what other reports or withheld data at
`issue would be helpful for this purpose.
`Moreover, Levine states that data on racial health
`disparities and recommendations on closing those gaps are
`19
`
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`

`

`Case 1:20-cv-09144-VM Document 47 Filed 12/11/20 Page 20 of 32
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`
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`necessary to craft responsive policy. (Levine Decl. ¶ 21;
`see also Joseph Decl. ¶ 39.) But it is not at all clear
`that the statutorily required reports from the Office of
`Minority Health, which must be submitted to Congress
`biannually, would contain that information; the reports are
`meant to describe the subagency’s activities and
`“evaluat[e] the extent to which such activities have been
`effective in improving the health of racial and ethnic
`minority groups.” 42 U.S.C. § 300u-6(f)(1). And it is not
`apparent from Levine’s declaration how the information on
`the agency’s activities and the effectiveness of those
`activities would assist Levine in setting local policy. And
`while the Secretary must “submit to the Congress a report
`regarding prevailing disparities in health care delivery as
`it relates to racial factors and socioeconomic factors in
`priority populations” under 42 U.S.C. § 299a-1(a)(6),
`Plaintiffs Levine and Joseph have made no allegations
`regarding how information on racial disparities in health
`care “delivery” would help them. Regardless, the
`Government’s evidence suggests that it is on track to issue
`this report on disparities in health care delivery by the
`end of the year. (Perry Decl. ¶ 4.)
`Finally, the declarations also iterate a need for
`
`
`
`

`

`Case 1:20-cv-09144-VM Document 47 Filed 12/11/20 Page 21 of 32
`
`
`
`biothreat
`or
`COVID-19
`federal
`on
`information
`countermeasures. King states that “understanding federal
`planning and supplies of medical countermeasures can help
`us anticipate and prepare for shortfalls in specific areas,
`or position us to advocate for their targeted deployment
`where they can have the greatest impact.” (King Decl., Dkt.
`No. 10, ¶ 54.) Levine also stated that “information with
`respect
`to
`the
`federal
`preparations
`of
`medical
`countermeasures is critical to preventing New York City
`from needlessly duplicating supplies or efforts already
`accomplished at the federal level.” (Levine Decl. ¶ 22.)
`But Defendants’ evidence suggests that this year’s
`Countermeasures SIP does not focus on COVID-19 and instead
`is “a strategy for future efforts” that “broadly addresses
`research and development, acquisition and stockpiling,
`expanding manufacturing, and planning for distribution and
`dispensing for all of these countermeasures.” (Bratcher-
`Bowman Decl. ¶ 7.) Accordingly, it does not seem that the
`type of information useful to Plaintiffs is contained in
`the Countermeasures SIP, and it is not clear how the
`information that is actually contained in that report would
`benefit Plaintiffs.
`Similarly, although Plaintiffs suggest a need for
`21
`
`
`
`

`

`Case 1:20-cv-09144-VM Document 47 Filed 12/11/20 Page 22 of 32
`
`
`
`information on federal supplies, Defendants’ evidence
`suggests that the “Threat-Based Review of the SNS has no
`bearing on the Government’s COVID-19 response, as the
`review is a routine, five-year projection of budgetary
`priorities for expenditures to maintain current or acquire
`future medical countermeasure[s] for all threats.” (Id. ¶
`13.) It is not apparent from this description that the
`Threat-Based Review of the SNS would help Plaintiffs in
`assessing federal supplies level, and Plaintiffs have not
`adequately demonstrated that the withheld reports otherwise
`contain the information they would need for that purpose.
`A further issue with Plaintiffs’ declarations is that
`they, like Plaintiffs’ Complaint and Memorandum of Law,
`make conclusory representations. Joseph, for example,
`attested that “[t]he information and reports that the
`government failed to provide would help CIP and me
`understand the wider public health risks we face, interpret
`and evaluate programs of our partners and vendors,
`understand
`the
`successes
`and
`failures
`in
`other
`jurisdictions, plan for adverse eventualities, and manage
`decisions with respect to staffing, training and
`procurement protocols.” (Id. ¶ 34.) He noted that CIP pays
`close attention to the latest public health information.
`
`
`
`

`

`Case 1:20-cv-09144-VM Document 47 Filed 12/11/20 Page 23 of 32
`
`
`
`(Id. ¶ 35.) But Joseph does not provide any factual basis
`by which the Court can determine that the information
`contained in the reports would help him and CIP. Joseph
`does not identify specific information in specific reports,
`nor does he explain with any particularity how the
`information at issue would help. While the Court
`acknowledges that data often informs decisionmaking,
`Plaintiffs have not established precisely what data they
`need or how they would use that data to achieve their
`undoubtedly commendable goals.
`
`In addition, King’s declaration notes that information
`on topics such as “disease prevalence and co-morbidities”
`is “relevant” to their day-to-day healthcare programs and
`COVID-19 care. (King Decl. ¶ 53). But relevant information
`is not necessarily helpful information, and nothing in
`King’s declaration establishes the helpfulness of the
`information. In other words, even assuming this information
`is contained in the records being sought, King fails to
`explain how this information would be used to benefit
`Housing Works’s COVID-19 response in a real or concrete
`way.
`
`The declarations of Plaintiffs’ experts fail for the
`same reasons that the declarations of Plaintiffs are
`23
`
`
`
`

`

`Case 1:20-cv-09144-VM Document 47 Filed 12/11/20 Page 24 of 32
`
`
`
`deficient. For example, although Plaintiffs point to the
`declaration
`of
`Dr.
`Irwin
`Redlener
`(“Redlener”)
`(“Plaintiffs’ Reply,” Dkt. No. 41, at 5 nn. 6-7),
`Redlener’s declaration outlines the need for information
`not contained in the relevant reports. Redlener states the
`need for “real-time information,” “reports on health
`disparities along race and ethnicity,” a

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